Judgment

DUTT, J. :- This appeal by special leave is at the instance of the plaintiff-appellant, since deceased, and is directed against the judgment and decree of the Gujarat High Court reversing those of the Civil Judge, Senior Division, Himatnagar, whereby the learned Civil Judge decreed the suit instituted by the appellant.

2. The late Thakore Sartansinhji, the father of the appellant, was the Ruler of the former Mohanpur State situate in the district of Sabarkantha, Gujarat. After independence, the said Mohanpur State merged in the then State of Bombay (now the State of Maharashtra). The former Ruler, the father of the appellant, by a deed of gift dated May 14, 1951 gifted certain properties to his youngest son, the respondent No. 1 herein. By his will dt. May 22,1951, the former Ruler also bequeathed certain properties to the respondent No. 1 and his mother. The father of the appellant died on Dec. 9, 1955 and on his death the appellant became the Ruler. On May 10, 1956, the suit out of which this appeal arises was instituted by the appellant challenging the validity of the said deed of gift and the will. In the suit, the case of the appellant was that as the rule of primogeniture applied to the Raj Estate, he being the eldest son succeeded to the Gadi. It was contended that the former Ruler, that is, the father of the appellant, had no power of alienation either by gift or by will and, accordingly, the disposition made by him by the said deed of gift and the will in favour of his younger brother, the respondent 1, was illegal and invalid.

3. The respondents including the younger brother of the appellant, contested the suit, inter alia, denying that the former Ruler had no power of alienation as contended by the appellant. It was averred that the deed of gift and the will were perfectly legal and valid. The learned Civil Judge decreed the suit in part declaring that the deed of gift and the will were illegal and directed the respondent 1 to hand over to the appellant the possession of the properties which were all agricultural lands, as mentioned in the deed of gift. The learned Civil Judge passed a decree for mesne profit, but refused the prayer of the appellant for an injunction on the ground that the appellant had failed to prove his possession of the properties mentioned in the plaint.

4. Being aggrieved by the judgment and decree of the learned Civil Judge, the respondents preferred an appeal to the High Court. The High Court, after considering the facts and circumstances of the case and the evidence adduced by the parties, held that the former Ruler had the power of alienation and, accordingly, the deed of gift and the will impugned in the suit were legal and valid. The appeal was allowed and the judgment and decree of the learned Civil Judge were set aside. Hence this appeal by special leave.

5. During the pendency of the appeal in this Court, the appellant Thakore Harnathsinhji Vinayasinhji died on June 27, 1985 leaving behind him the present appellants, who were already on record, as his heirs and legal representatives.

6. It is not disputed that the Raj Estate, of which the deceased appellant was the Ruler, is impartible and that the rule of primogeniture, which is one of the essential characteristics of an impartible estate, is also applicable. The question that is involved in this appeal for our consideration is whether the holder of an impartible estate, to which the rule of primogeniture applies as an essential characteristic of such an estate, can alienate the properties comprised in the estate by a deed of gift or will. The legal position that prevailed up to 1888 was that a holder of an impartible estate could not transfer or mortgage such estate beyond his own life-time so as to bind the coparceners, except for purposes beneficial to the family and not to himself alone. In 1888, for the first time, in Rani Sartaj Kuari v. Deoraj Kuari, (1888) 15 Ind App 51 the Privy Council recognised the power of alienation