Judgement

Consolidated Appeals (No. 59 of 1925) by special leave, the first two being cross-appeals from a decree of the High Court (June 20, 1924) affirming a decree of the Subordinate Judge of Midnapur (August 22, 1922), and the third being from two orders made by the High Court after its said decree.

The above named respondent brought a suit against the above named appellant claiming an estate known as the Dhalbhum Raj, and mesne profits. He claimed under the will of Raja Satrughna, the last holder, who died in 1916. The family was undivided and governed by the Mitakshara; the estate was impartible and governed by a custom of lineal primogeniture. It was admitted that if the will was invalid, as the defendant contended, he was entitled to succeed. The history of the family (with a genealogical table) appears in a report of a former litigation at I.L.R. 29 C. 343. The defendant was descended from one Jugal Kishore, and the plaintiff from Jugal Kishores brother, Kamala Kant.

Since 1905 the estate had been administered under the Incumbered Estates Act, 1876. Both the plaintiff, who obtained probate and administration, and the defendant applied to be placed on the register in respect of the estate. The defendant obtained registration; he got the estate discharged from management under the Act of 1876, and on his own application as a disqualified proprietor it was placed under the Court of Wards. From the death of Satrughna the defendant had received Rs.9000 a year from the income of the estate.

The Subordinate Judge made a decree declaring the plaintiffs title under the will. He held that there was nothing in law to render the will invalid, and that an alleged custom against alienation by will was not proved. He granted mesne profits for three years, amounting to Rs.27, 000. On account of the inability of the defendant to pay the mesne profits and costs, he ordered that they should be realized out of the estate.

Both parties appealed to the High Court, the appeals being heard together. The learned judges (Chatterjea and Chotzner JJ.), by a judgment elaborately discussing the authorities and the evidence, affirmed the decree of the trial judge on all points.

Both parties appealed to the Privy Council from the decision. The plaintiff also appealed from later orders of the High Court continuing the appointment of a receiver and fixing the defendants maintenance at Rs.1200 per month.

1927. Feb. 21, 22, 24, 25; March 1. Dunne K.C., Sir George Lowndes K.C. and Hyam for the appellant. The decision of the Privy Council in Venkata Surya Mahapathi v. Court of Wards (the first Pittapur case) (L. R. 26 I. A. 83.), holding that an impartible estate is alienable by will, and its judgment in Sartaj Kuari v. Deoraj Kuari (L. R. 15 I. A. 51.) upon which that decision was based, are inconsistent with the Boards decision in Baijnath Prashad Singh v. Taj Bali Singh.(L. R. 48 I. A. 195.) They were decided on the view that there was no co-ownership and therefore no right of survivorship in an impartible estate. But the case last cited decided that if the family is undivided there is a real right of survivorship. In that view the estate in suit passed to the appellant immediately upon the death of the last holder, and there was nothing for his will to operate upon. Having regard to the inconsistency between the decisions it is now open to the Board to follow either view. It is submitted that the view taken in the last decision is correct in Hindu law. The custom of impartibility does not destroy the quality of an estate as joint family property Sivagunga Case (( 1863) 9 Moo. I.

A. 543.); Yanumula Venkayamah v. Yanumula Boochia Vankondora (( 1870) 13 Moo. I. A. 333, 337.) ; Chowdhry Chintaman Singh v. Nowlukho Konwari (( 1875) L. R. 2 I. A. 263,270.) ; Doorga Pershad Singh v. Doorga Konwari. (( 1878) L. R. 5 I. A. 149,159.) The power of a Hindu to make a will is merely an importation into Hindu law, and does not entitle him to dispose of joint family