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TMI Blog1953 (4) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... is an ancient impartible estate, included in the schedule to the Madras Impartible Estates Act (Act 2 of 1904). The management of the estate however was taken over in 1941 by the Court of Wards, at the request of the zamindar under the Madras Court of Wards Act (Act 1 of 1902) --vide Section 18. Appellant 1 is the eldest son of the zamindar. Respondent 1 In the appeal is the zamindar, who is a ward of the court of Wards and respondent 2 is his second son. On 5-2-1945, the zamindar executed a document, which is styled relinquishment deed , Ex. A. 1, in favour of appellant 1, the eldest son and respondent 2, the second son represented by his guardian the eldest son. Under this deed, the zamindar purported to relinquish the said zamindari including the properties described in the schedule attached to the deed in favour of the two sons in consideration of : (1) a sum of Rs. 11,000 paid already to the father; (2) Rs. 4000 and Rs. 10,000 respectively to be paid to him and his second Rani as per the promissory notes executed by the eldest son on the same date 5-2-45; (3) a promise to pay an allowance of Rs. 300 per mensem to the zamindar and Rs. 450 per mensem to the second Rani for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 34, Court of Wards Act and was, therefore, inoperative to pass any title to the zamindari to the eldest son. There was an appeal to the Government against the decision of the Court of Wards but that appeal also was unsuccessful -- vide proceedings of the Government (Ex. E-3) dated 27-2-1946. 4. The claim by the eldest son before the Tribunal was that by virtue of the relinquishment deed, he was entitled to the advance compensation deposited by the Government with the Tribunal as he became the owner of the impartible estate. The claim was rejected by the Tribunal on the ground that the deed was ineffective to vest any title in appellant 1 and that it was also hit at by Section 34, Court of Wards Act as it virtually amounted to a transfer of the estate by the father to the son. It is against this decision that this appeal was preferred. 5. The learned counsel for appellant l raised three points in the appeal, firstly, that under the document the zamindar renounced the estate in favour of his son and it was therefore effective to make him the owner of the impartible estate on the analogy of renunciation of the interest of a coparcener in favour of other coparceners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her coparceners. It is an established principle that renunciation to be effective must be in favour of all the remaining coparceners and even if renunciation is in favour of one, it will enure to the benefit of all the remaining coparceners. This principle of renunciation follows, in my opinion, from the conception of the holding of joint family property by coparceners under Mitakshara. law. The very definition of 'vibhaga' or partition in Mitakshara Chapter I Section 1. PI. 4 brings out clearly the fact that there is a common ownership of all the persons of the joint family property and the effect of the partition was only to particularise the right to specific portions of the aggregate of the property so as to create individual ownership. A partition is the adjustment of the ownership of many persons in the aggregate wealth by assigning particular portions of the aggregate to a several ownership. Anekhaswamvam is the ownership of many persons of the Dravyasamudayavishaya, i.e., the aggregate wealth, which implies that each is the owner of the whole Until there was a 'vibhaga' or partition by restricting his right to a particular portion of the property to be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion applicable to joint family property, i.e., the principle of survivorship which of course is modified by custom to the extent that the senior most member of the family takes it by survivorship to the exclusion of others. For the purpose of ascertaining the heir. the property is treated as joint family property and so long as the family continues joint, the next heir has to be determined by the rule of survivorship and not succession. It is open to establish that the family ceased to be Joint family for the purpose of succession by establishing an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate and this Is practically the only mode by which an impartible estate ceases to be joint family property. It has been recognised that the right to take the property by survivorship is not like the right of a reversioner to succeed to the estate as 'spes successionis' but a present contingent right which could be renounced or surrendered but the right is only to take the estate after the death of the holder for the time being. The point is whether during the lifetime of the holder, a person entitled to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put on end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate. That the property is not held to coparcenary was clearly enunciated by the Judicial Committee by Sir George Rankin himself in the latest case in -- 'Ananth Bhikappa v. Shankar Kamachandra', AIR 1943 PC 198), in these terms : Now an impartible estate is not held in coparcenary -- 'Rani Sartaj Kuari v. DeoraJ Kuari', 10 AH 272 (PC) (E), though it may be joint family property, it may devolve as joint family property or as separate property of the last male owner. In the former case, it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom, e.g., lineal male primogeniture. In the latter case jointness and survivorship are not as such in point; the estate devolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers had any present title to or interest in the property, the only right being to take the estate by survivorship, if the person survives the death of the holder for the time being. It would revolutionise the law relating to impartible estate as developed by the decisions of the Judicial committee and put the clock back if junior members are considered as having a present interest in the estate. No useful purpose would be served by examining all the decisions in detail in view of the clear and unambiguous pronouncement of the Judicial Committee in the Bombay case where it is stated that the junior members are not coparceners. 11. If therefore appellant 1 had no title to the property at the time of the renunciation except the off-chance of succeeding by survivorship to the estate after the death of his father, the renunciation or relinquishment under the deed would not clothe him with any title to the property. Renunciation must be in favour of a person, who had already title to the estate the effect of which is only to enlarge the right. Renunciation does not vest in a person a title where it did not exist and therefore the deed would be inoperative to make appellant 1 the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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