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1921 Supreme(SC) 10
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD PHILLIMORE, MR. AMEER ALI, AND SIR LAWRENCE JENKINS.
BAIJNATH PRASHAD SINGH - Appellant
Versus
TEJ BALI SINGH - Respondents
On appeal from the High Court at Allahabad.
Decided On : Feb. 7. 1921.
Solicitor for appellants : Douglas Grant.
Solicitors for respondent: Barrow, Rogers, & Nevill.
Succession to an ancestral impartible estate in a joint Hindu family governed by Mitakshara law is determined by the rule of survivorship to identify the successor, notwithstanding the absence of co-parcenary rights regarding partition or alienation.
Headnote:(A) Mitakshara Law - Succession to impartible ancestral estates - Rule of survivorship vs. ordinary inheritance - The fact that an estate is impartible does not render it separate or self-acquired property. Where an impartible estate is the ancestral property of a joint undivided family, the selection of the person entitled to succeed is regulated by the rules obtaining in an undivided joint family, specifically the rule of survivorship, although the successor holds the estate solely due to the custom of impartibility.
(B) Co-parcenary in impartible estates - Distinction between rights of alienation and rights of succession - The absence of a right to demand partition or a right to restrain alienation by the holder of an impartible estate does not destroy the nature of the property as joint family property for the purpose of determining succession. The rule of survivorship remains applicable to designate the head of the family to occupy the estate, regardless of whether co-parcenary rights exist in the context of present co-ownership or maintenance.
(C) Application of Custom - A custom of impartibility supersedes the general law regarding the enjoyment of the property by a single heir, but the general law of the joint family continues to regulate the process of selecting that heir.
Facts of the case:
An impartible ancestral estate became vacant following the death of the last male holder and subsequently his widow, both of whom left no children. A dispute arose between the direct senior lineal descendant of the common ancestor and the uncles of said descendant. The uncles were one degree nearer to the common ancestor than the descendant. The lower courts had found the estate to be ancestral property of a joint family and impartible in nature.
Findings of Court:
The court affirmed that the estate was ancestral property of a joint family and remained impartible. It held that the respondent, being the eldest of the senior branch and the person who would be the head of the family under the rules of a joint family, was the rightful successor.
Issues: Whether the succession to an ancestral impartible estate in a joint family governed by Mitakshara law is determined by the ordinary laws of inheritance (nearest in blood) or by the rule of survivorship (nearest co-parcener of the senior line).
Ratio Decidendi: The court reasoned that impartibility is a custom that affects the enjoyment of the property but not its character as joint family property. While the holder of an impartible estate has absolute rights of disposal (alienation) because other members lack a present right of co-ownership, this does not eliminate the application of survivorship for succession. The rule of survivorship is used to identify the class and the specific individual from the senior line who is entitled to succeed as the head of the family.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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hindu law
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mitakshara law
- succession
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mitakshara law
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hindu law
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property law
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impartible estates
- zamindari
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joint family property
- co-parcenary
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impartible estates
Judgement
Appeal (No. 74 of 1917) from a judgment arid decree of the High Court (May 20, 1916) affirming, subject to a slight modification, a decree of the Subordinate Judge of Mirzapur (March 3, 1915).
The suit was instituted by the respondent to establish his title to the estates appertaining to the raj of Agori-Barhar. The last male holder, Raja Kesho Saran Shah, died in 1871 leaving no children ; since that date his widow had been in possession until her death in 1913. The plaintiff-respondent was the direct senior lineal descendant of the common ancestor of himself and the last male holder. The first two appellants (defendants), who were in possession, were uncles of the plaintiff, being thus one degree nearer to the common ancestor than the plaintiff. The family was governed by the Mitakshara.
The facts appear more fully from the judgment of the Judicial Committee and from the report of the appeal to the High Court at I. L. R. 38 A. 590, in which report a pedigree will be found.
The material allegations in the plaint were that the estate was impartible, and that by custom the succession was governed by lineal primogeniture; the possession by the deceased rani was accounted for by an alleged custom of the family. These several allegations were traversed by the appellants written statements.
The Subordinate Judge found that prior to 1744 the estate was an impartible raj, that it was restored as an impartible raj to Adil Shah, the son of the common ancestor, by a sanad granted in 1781, and that by presumption of law lineal primogeniture was the rule of succession. He was of opinion that the estate was held by all the descendants of Sudisht Narayan Shah, the common ancestor, as members of a joint Hindu family ; and that a custom of lineal primogeniture had been established. In the result he made a decree for possession with mesne profits.
The defendants appealed to the High Court. The learned judges (Sir Henry Richards C.J. and Muhammad Rafiq J.), whose judgments are fully reported at I. L. R. 38 A. 590, were of opinion so far as is material to this report (1.) that the estate was impartible prior to 1744 and that when it was restored it was still held as impartible ; (2.) that the regrant to Adil Shah was on behalf of the joint family, and that he and his brothers constituted a joint Hindu family ; and (3.) that the possession of the rani was under a family custom. They held that when an impartible estate passes by survivorship from one line of descent to another it devolves not on the co-parcener nearest in blood, but on the nearest co-parcener of the senior line ; and that consequently the plaintiff was entitled to succeed in preference to the defendants. Rafiq J. was of opinion that the evidence did not establish the custom of lineal primogeniture alleged. A decree was made dismissing the appeal except in regard to the movable property, as to which the decree of the Subordinate Judge directing an account was set aside.
1920. Nov. 1, 2, 4, 5, 8. De Gruyther K.C. and Dube for the appellants. The sanad of 1781 did not restore to the grantee what his ancestors had ; under it the property was held as separate property. There could not be a joint family of which Kesho Saran Singh and Deoki Nandan Singh were members. Having regard to the circumstances in which the property was acquired it was partible. But if the estate was rightly held to be ancestral joint property, that finding must be associated with the further finding that it was impartible. The judgments in the High Court are based upon the view that the members of the joint family having a co-parcenary interest in the estate. But the effect of the judgments of the Board in Sartaj Kuari v. Deoraj Kuari (L. R. 15 I. A. 51.) and Rama Rao v. Raja of Pittapur (L. R. 45 I. A. 148.) is that there is no co-parcenary in an impartible estate. The judgment in the latter said, in relation to an impartible zamindari, that "it is of its essence that no co-parcenary exists." As a nece
