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SUPREME COURT OF INDIA
D.A. DESAI; A.P. SEN AND V. BALAKRISHNA ERADI, JJ.
Anant Kibe and others, Appellants
Versus
Purushottam Rao and others, Respondents.
Civil Appeal No. 497 of 1971
Decided on 17-4-1984.
Advocates appeared
M/s. V. A. Bobde, S. D. Mudaliar, Advocate General Ratnaparkhi, Advocates, for Appellants. Mr. G. L. Sanghi, Sr. Advocate, M/s. D. N. Misra and S. Sukumaran, Advocates with him, for Respondents.
* Civil First Appeal No. 91 of 1962, D/- 2-5-1969 (Madh. Pra).
(2) Land Revenue Code, 1959 (M.P.)-Ss. 178, 164 & 158 (1) (b)--Inam land held with right of lineal primogeniture-under the Code the special devolution and impartibility of the land is destroyed-becomes the property of the joint Hindu Family-person allow of devolution applies to such land and the property built with the income from the land-other junior members of the joint Hindu family can claim partition.
(3) Land Revenue Code, 1959 (M.P.)-S. 164-devolution-former Inam land with right of lineal primogeniture becomes Bhumiswami land-the land devolves according to the personal law-right of primogeniture and the special mode of devolution are destroyed.
(4) Primogeniture-right of lineal primogeniture-destroyed when the land becomes Bhumiswami land under the 1959 Code-devolution in accordance of section 164 of the Code.
(5) Inam lands-right of primogeniture and impartibility of estate-were terms and conditions of the grant, Inam-these do not enure after the land looses the nature of Inam-Land Revenue Code, 1959 (M.P.)-S. 158 (1) (b).
(6) Impartibilities-the land and property acquired from the income of such land-becomes partible when the land becomes Bhumiswami land-Land Revenue Code, 1959 (M.P.)-S. 178.
In the erstwhile Holkar State, some pieces of lard were granted as Inam with right of primogeniture and was made impartible under the Holkar State Jagir Manual. Some properly was also acquired from the income of such Inam land. On the enforcement of the M.P. Land Revenue Code, 1959, the holder of such land was conferred the right of Bhumiswami. The holder of the Inam land was a member of a joint Hindu family when the Code of 1959 came into force. A member of this joint Hindu family claimed partition of such land and the properties acquired from the income of such land. The defendant contended that the property was impartible and special mode of devolution provided by rule of lineal primogeniture, and thus the land was not partible. There was no dispute that the land was ancestral.
Held: The plain language of S.158 (1) (b) shows that it effected a complete extinction of the Inam right followed by simultaneous conferral of Bhumiswami rights. Every person, in respect of the land held by him in the Madhya Bharat region, as an lnamda at the time of the coming into force of the Code, became a Bhumiswami thereof, and acquired all the rights and became subject to all the liabilities of a Bhumiswami under the Code.
As a necessary corollary, he became subject to the provisions of Sec. 164 which provides that subject to his personal law, the interest of a Bhumiswami shall, on his death, passed by inheritance, survivorship or bequest, as the case may be.
On a combined reading of sections 158 (1) (b) and 164, the legal consequence that ensued was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of Inam lands under the Jagir Manual of the Holkar State, stood extinguished. After the conferment of Bhumiswami rights, the incidents and character of the tenure became transformed and the restrictions placed thereon disappeared, and such lands became capable of being held in joint ownership like any other coparcenary property. It must logically follow that the conferral of Bhumiswami rights on the holder for the time being under section 158 (1) (b) of the Code in respect of ancestral Inam lands must necessarily ensure to the benefit of all the members of the joint family. [Para 10
Impartibility is essentially a creature of custom. Here it is a term of the grant. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and therefore have no right of partition having regard to the very nature of the estate that it is impartible. The only incidence for joint property which still attaches to the joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. The incident of impartibility attached to Inam lands no longer exists by reason of section 158 (1) (b) of the Code as they have now become Bhumiswami lands. The right of junior members of the family for maintenance is governed by custom and not based upon any joint right or interest in the property as co- owners. In case of Inams in the Holkar State such right was again a condition of the grant.
The Inam lands though impartible were nevertheless joint family properties of the parties The impartibility of the tenure governed by the Jagir Manual of the Holkar State and the rule of lineal primogeniture governed by the Jagir Manual, Chapter II, rules 2 and 3 did not per se destory its nature as joint family property or render it the separate property of the last holder so as to destroy the right of survivorship. The estate retained its character of joint family property and its devolution was governed by the rule of survivorship as modified by the rule of lineal primogeniture. To establish that a family governed by the Mitakshara in which there is an impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their succession to the estate. AIR 1982 SC 887 followed, CFA No.91 of 1962 reversed. [Paras 12 & 18
JUDGMENT
SEN, J.:—This appeal on certificate is directed against a judgment and decree of the Madhya Pradesh High Court dated May 2, 1969 substantially reversing the judgment and decree passed by the Third Additional District Judge, Indore dated June 18/19, 1962 and dismissing the plaintiffs suit for partition and separate possession of their half share of the suit properties detailed in Schedule A appended to the plaint except with respect to a house and the agricultural lands at Ujjain. During the course of the hearing the parties have come to a settlement and the terms of the compromise have been recorded. Nevertheless, the correctness of the judgment delivered by the High Court is open to serious doubt and as it involves a question of general importance, we proceed to record our views.
2. The facts giving rise to the appeal are as follows. The report of the Inam Commissioner discloses that in 1837 the late Maharaja Harihar Rao Holkar made a grant of an inam of a garden known as Rambag in Kasba Indore admeasuring 15.62 acres to Abaji Ballal, the priest of the Holkar family on his representation that he was in service of the Huzur Durbar for a long period but had no garden at Kasba Indore and was therefore finding it difficult in getting tulsi leaves and flowers for making offerings to the deities. The grant of inam to him was on Putra Pautradi Vansh Parampara condition by way of parvarish. As appears from the report that Abaji Ballal had only one son named Laxman and he also had only one son named Raghunath Rao. After the death of Abaji Ballal he was succeeded by Laxman. It appears that Laxman represented in the year 1866 that he was entitled to hold as inam an area of 15.62 acres in Kasba Indore while the land in his possession was only 5.91 acres, the remaining area having been acquired by the Durbar and prayed for a grant of an area of 9.72 acres in exchange. An inquiry was thereupon held and the claim was found to be true. By Durbar Order No. 9 dated December 14, 1888, the inamdar was given 9.72 acres of land in Mauja Palashiya Hana. It also appears that the family built residential houses at Indore presumably out of the income of the inam and also acquired immovable properties at Ujjain consisting of a house and some agricultural lands. After the death of Laxman Rao, his son Raghunath Rao was recognized to be the inamdar.
3. The common ancestor Raghunath Rao had three sons, Madhav Rao, Sadashiv Rao and Gopal Rao. Of these, Madhav Rao and Sadashiv Rao had predeceased their father Raghunath Rao Madhav Rao died without leaving an heir while Sadashiv Rao left a son Purushottam Rao. The third son Gopal Rao disappeared about an year before the death of his father Raghunath Rao and his whereabouts were not known till the news of his death in 1932 at Secunderabad was received, after the death of Raghunath Rao in 1928. On the death of Raghunath Rao, Purushottam Rao being the sole survivor of the eldest male line of the last holder became the inamdar and also the karta of the joint Hindu family.
4. The suit out of which this appeal arises was instituted by the three appellants Anant, Govind and their mother Smt. Laxmi bai being the legal heirs and successors of Gopal Rao, as plaintiffs on December 12, 1955 for partition and separate. possession of their half share in the joint family property described in Schedule A appended to the plaint against respondents 1 and 2 Purushottam Rao and his mother Smt. Rama Bai being defendants 1 and 2, impleading Krishna Rao, the eldest son of Gopal Rao as defendant 3 because he failed to join them as a plaintiff in the suit. The case of the plaintiffs was that defendant No. 1 Purushottam Rao in his capacity as the karta of the joint Hindu family was in possession and management of the joint family property including the inam lands at Kasba Indore and Mauja Palashiva Hana. The plaintiffs, claim was contested by defendants 1 and 2, Purushottam Rao and Smt. Rama Bai. They pleaded inter alia that the
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