Accrued royalty, in the absence of any indication by the holder of the impartible estate to treat it as part of the estate, prima facie becomes the separate property of the holder.

JUDGMENT - 1. One Raghuvirsinh, Chieftain of Kathi Estate, and opponent No, 7 in these applications filed a suit on 23rd April 1960 for recovery of arrears of royalty from opponents 1 to 6 under a forest contract in respect of Kathi Estate dated 12th December 1955, it appears that this estate was under the management of the Court of Wards during the minority of Raghuvirsinh who was entitled to it by the rule of primogeniture, and while it was under its management, by a contract dated 15th December 1955, the Court of Wards granted to opponents 1 to 6 rights in respect, of the forest produce in the estate for a period of 3 years. The estate was thereafter handed over to Raghuvirsinh on his coming of age on 24th April 1956 and he started managing the same with the help of his mother Hirabai. Shortly thereafter, however, this Hirabai died but before her death she had directed Raghuvirsinh to take the assistance of plaintiff No. 2 in managing the estate, and accordingly, plaintiff No. 2 joined Raghuvirsinh in the management. Opponents 1 to 6 tailed to pay the royalty to Raghuvirsinh as provided in the contract. Consequently, on 25th September 1958 Raghuvirsinh and plaintiff Ho. 2 gave notice to opponents 1 to 6 demanding payment of royalty that had become due and payable under the contract. Despite this notice, opponents 1 to 6 failed to pay the royalty and, therefore, Raghuvirsinh and plaintiff No. 2 filed a suit being Regular Suit No. 158 of 1960 in the Court of the Civil Judge, Senior Division, at Dhulla, on 23rd April 1960 for recovery of Rs. 2239.50 nP. from these opponents. During the pendency of the suit, i.e. on 17th June 1960 Raghuvirsinh died, and the question arose as to who could be substituted in his place and stead in the suit as his heir and legal representative. The petitioner, who claimed to be Raghuvirsinhs uncle and successor to the estate made an application on 14th September 1960 praying that he be substituted in the place of Raghuvirsinh in the suit as his heir and legal representative. On the very next day, i.e. on 15th September 1960, opponents 8 and 9, No. 8 being the widow of Raghuvirsinh and No. 9 being his daughter, made an application for substituting their names in place of Raghuvirsinh in the suit as his natural heirs. Similar applications were also made by the petitioner and opponents 8 and 9 respectively in respect of another suit being Regular Civil Suit No. 159 of 1960 filed by Raghuvirsinh and plaintiff No. 2 to recover a sum of Rs. 4787 and odd being the amount of royalty that had become due and payable to them under another contract of a similar nature. All these applications were heard together by the learned trial Judge. No evidence was led on either side and the applications seem to have been decided only upon affidavits. The learned Judge held that inasmuch as the amounts of royalty claimed in the two suits were the personal property of Raghuvirsinh and did not form part of the Kathi estate, only his natural heirs, opponents 8 and 9 were entitled to continue those suits. Accordingly, the applications of the petitions were rejected and those by opponents 8 and 9 were allowed. It is against the decision of the trial Court on these applications, that the petitioner has filed these two revision applications in this Court.

2. In support of these applications, it was urged by Mr. Vaidya that the mere right to recover the royalty that had accrued due to Raghuvirsinh during his life time as distinguished from the royalty actually received or recovered, could not constitute his separate property in law and that, therefore, it could only be a part of the Kathi estate and as such, it could not descend to his heirs at law but only to the person who would succeed to the estate by the rule of primogeniture. On behalf of opponents 8 and 9, on the other hand, it was urged by Mr. Joshi that in the absence of any intention on the part of Raghuvrsinh to treat the amounts of royalty that had accrued due to him

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