TMI Blog1932 (4) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... impartible by custom, and succession to it is governed by the rule of lineal primogeniture. The last holder of the estate was Raja Durga Prasad, who died childless on 7th March 1916, leaving three widows and Shiba Prasad Singh, his second cousin. The pedigree of the family, so far as it is necessary for the determination of the appeals, is as below: 2. Raja Sangram Singh died in 1836 leaving four sons. The Raj then devolved successively on Raja Udit Narain, Raja Rash Behari Lal, Raja Jaymangal, and Raja Durga Prasad. Shiba Prasad Singh is the great-grandson of Raja Sangram Singh. On 27th August 1915, Raja Durga Prasad made a will whereby he purported to dispose of some of the properties in dispute. The will is governed by the Hindu Wills Act 1870. Several sections of the Indian Succession Act, 1865, are thereby made applicable to wills governed by the Act. Amongst them is Section 187, which provides that no right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in British India shall have granted probate of the will under which the right is claimed, or shall have granted letters of administration with the will...a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which might on inquiry be found to have come to the hands of the defendant. The defendant by his written statement denied that the bantannamas were obtained by him by fraud or undue influence. He also denied that Raja Udit Narain had separated from his brothers, and alleged that he and the late Raja were, at the time of the Raja's death, members of a joint undivided family, and he claimed the Raj by survivorship. He based his claim to the other properties on a family custom, according to which, it was alleged, all accumulations and acquisitions made by the Raja for the time being passed to his successor together with the Raj. He also claimed those properties on the alternative ground that they had been incorporated with the Raj. There was a further plea that females were excluded by custom from succession to this Raj. The Subordinate Judge found that the bantannamas were obtained by the defendant by fraud and undue influence, and they were set aside. He also found that the two customs alleged by the defendant were not proved. On the issue whether the family was joint, he found that no separation had taken place, and that the defendant and the late Raja were members of a joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems 24 to 83 of Item 20, Schedule kha to the plaintiffs. He hold that the defendant was also entitled to retain some furniture and other articles. Dealing with this part of the case, he said: Plaintiffs are certainly not entitled to the furniture in the European guest house, Dheiya pleasure house, Raja's Khash Cutchery, Sadar Cutoherry of the Raj estate, and Purulia bungalow. I also do not allow the claim for electric light, punkhas and machineries, etc., etc., in the Rajbari, as they would follow the estate. 9. This part of the decree was affirmed by the High Court subject to certain variations as to sub-items 24 to 83. The Subordinate Judge had not dealt with the plaintiffs' claim to the rents, royalties and other moneys Which had accrued in the lifetime of the late Raja, but had been realized by the defendant after his death. The High Court held that these belonged to the plaintiffs. The High Court also directed an inquiry as to all other moveable and immovable property that might have been left by the late Raja and had come to the defendant's hands, and ordered that it should be delivered to the plaintiffs. From this decree of the High Court both parties have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deb v. Bir Chunder Thakur [1869] 12 M.I.A. 523] (at p. 510). 11. Separation from commensality and joint worship does not necessarily effect a division of a joint undivided Hindu family. Such a separation may be due to various causes, and the family may yet continue joint in estate: Suraj Narain v. Ikbal Narain [1912] 35 All. 80. To constitute separation there must be a clear and unambiguous declaration by a member of his intention to separate himself from the family: Girja Bai v. Sadashiv-Dundi-raj A.I.R. 1916 P.C. 104 and Kawal Nain v. Prabhu Lal A.I.R. 1917 P.C. 39. Similar rules have been applied by the Board in the case of impartible estates. Thus in Chowdhry Chintamun Singh v. Mt. Nowlukho Konwari [1875] 1 Cal. 153, Sir J. Colvile, in discussing whether a document operated as a separation of a joint family in respect of an ancestral impartible estate, said (p. 271 of 2 I. A.): There its nothing in the transaction which evinces any intention on the part of the junior members of the family to part with or to transfer any right or contingent right of property which they might have, and it was held that the family had not separated in respect of that estate. A similar te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying upon Satraj Kuari v. Deoraj Kuari [1888] 10 All. 272 that in the case of an impartible estate there was no co-ownership and therefore no jointness in estate; that Baijnath's case (8) did not decide that there was co-ownership even for the purposes of succession; that the interest of a junior member, if any, was only a spes successions, and that there was therefore nothing in the case of an impartible estate for the junior members to renounce. Such being the argument, it is necessary to consider what Baijnath's case A.I.R. 1921 P.C. 62 actually decided. 14. The decisions prior in date to Baijnath's case A.I.R. 1921 P.C. 62, so far as they are material for the present purpose, fall to be divided into two classes, namely, [1869] 12 M.I.A. 523 those relating to succession to an impartible estate, and [1912] 35 All. 80 those relating to other rights in such estate. The first class begins with Katama Natchiar v. Rajah of Shivaganga [1863] 9 M.I.A. 539 (P.C.). The question in that case was one of succession to an impartible zamindari, the rival claimants being the representatives of a widow and those of the nephews of the last holder. The actual decision proceeded on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partible, the proprietary right falls with it. The Shivagunga case [1863] 9 M.I.A. 539 (P.C.) and the other cases following it were distinguished on the ground that the question in all these cases was one of succession, and not of alienation, and that all that was decided in those cases was: that for the purpose of determining who was entitled to succeed, the estate must be considered as the joint property of the family. 16. The decision in Sartaj Kuari's case [1888] 10 All. 272 was followed in Rama Krishna Row v. Venkata Kumara Mahipati Surya Row [1889] 22 Mad. 383, where the right of the last holder to alienate the estate by will was upheld, and in Gangadhara Rama Row Bahadur v. Rajah of Pittapur A.I.R. 1918 P.C. 81, where the right of the junior members of the family to maintenance out of the estate (except by custom) was negatived. Here ends the second class of cases. 17. Then came Baijnath's case A.I.R. 1921 P.C. 62. The contest was as to succession to an ancestral impartible estate. The parties were governed by the Mitakshara law and the family was joint. If the rule of survivorship applicable to ancestral property were applied, the respondent would be en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipati Surgya Row [1889] 22 Mad. 383 had proceeded on the view that there was no co-ownership and therefore no right of survivorship in an imparible estate, that that view was inconsistent with Baijnath's case A.I.R. 1921 P.C. 62 which decided that there was a real right of survivorship and no right therefore to alienate by will, and that it was open to the Board to choose between the two lines of decision, and that the decision in Baijnath's case A.I.R. 1921 P.C. 62 was correct in Hindu law, But the Board held that there was no inconsistency between the two lines of decisions, and the will was upheld. The keynote of the whole position, in their Lordships' view, is to be found in the following passage in the judgment in the Tipperah case [1869] 12 M.I.A. 523: Where a custom is proved to exist, it supersedes the general law, which however still regulates all beyond the custom. 19. Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have; (1) the right of partition: (2) the right to' restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been dealt with in several decisions of the Board, but the competency of incorporation was not challenged in any of them. The point however was raised in a Madras case which is referred to later. The question now under consideration embraces all other properties in dispute, and it is one of wide importance. It may be as wall to consider first what was actually decided in the cases referred to. The first of them is Parbati Kumari Debi v. Jagadis Chunder Dhabal [1902] 29 Cal. 483. The contest there was as regards succession to an ancestral impartible estate and 4 mauzas that had been purchased on behalf of the last holder out of the savings of the estate. It was contended that the mauzas had been incorporated with the estate and therefore passed with the estate. It was in evidence that the rents of the estate were collected by the same servant and the collection papers were kept with the papers of the estate. In dealing with this part of the case, the Board said: Their Lordships do not find in these meagre facts adequate grounds for holding that the Raja intended to incorporate the four mauzas with the ancestral estate for the purposes of his succession the four mauzas must t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are mingled the character of the joint family property; but no such considerations necessarily apply to the income from impartible property.... Whether it be possible in any circumstances to treat moveable property as an accretion to a landed estate of this character is a matter not arising for decision.... In both Janki Pershad Singh v. Dwarka Pershad Singh [1913] 35 All. 391 and Murtaza Husain Khan v. Mahomed Yasin Ali Khan A.I.R 1916 P.C. 89, the addition of family property to the original raj is considered. Both these cases dealt with property other than moveable property. In the present case their Lordships can see no evidence in the facts stated of any sufficient intention to treat the acquired properties, whether the mauzas, mortgages or other personal estate, as part of the original raj. 23. The actual point of the decision in the above case was that where the estate is impartible, no such presumption as to an intention to incorporate can be drawn from the blending of the income of self-acquired property with the income of the estate as in the case of ordinary joint family estate. The case does not decide that if the estate is impartible, there can be no incorporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be the mode of augmentation, the property which goes to. augment the joint family property becomes part of the joint family property and he is entitled on a partition to an equal share with the other members of the family, and not to a double share as. in some other cases dealt with in the preceding verses. This is the verse on which the whole doctrine of merger of estates by the blending of income is founded: Gooroochurn Doss v. Goluckmoney Dosses [1843] 1 Fulton 165. 26. If a member of a joint family blends the income of his self-acquired property with the income of the joint family property, it raises a presumption of an intention to incorporate the self-acquired property with the joint family property: Rajani Kanta Pal v. Jaga Mohan Pal A.I.R. 1923 P.C. 57. But no such presumption can arise if a member of a joint family who is-the holder of an ancestral impartible estate mixes the income of his self-acquired property with the income of the estate. Blending of income however is not the only mode of indicating the intention to incorporate. A member of a, joint family may possess self-acquired property which yields no income for the time being as where it is land not yet brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him with that estate. 27. Lastly, it was argued that the holder of an impartible estate cannot so incorporate his self-acquisitions with the estate as to make them inheritable by the rule of primogeniture. In support of this argument two passages were cited from the Ganendro Mohan Tagore v. Juttendro Mohun Tagore case [1872] I.A. Sup. Vol. 47, namely, (1) A private individual who attempts by gift or will to make property inheritable otherwise than the law directs is assuming to legislate and the gift must fail and the inheritance takes place as the law directs; and, (2) upon this point it is necessary to repeat what has already been said as to the incompetency of an individual member of society to make a law whereby a particular estate created by him shall descend in a novel line of inheritance differing from that described by the law of the land. 28. Reliance was also placed upon a passage in Rajindra Bahadur Singh v. Raghubans Kunwar A.I.R. 1918 P.C. 25 (at p. 143 of 45 I. A.) which is as follows: The Crown has in British India power to grant or to transfer lands and by the grant or on the transfer to limit in any way it pleases the descent of such lands. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efined by the sanad could not have been enlarged by any Raja, nor could he have added other properties to it so as to make them descendible by the rule of primogeniture. But the Raj here is not held under any sanad. It is impartible by custom and it descends by primogeniture by custom. The boundaries therefore of such an estate, if they could be circumscribed at all, could only be circumscribed by statute or custom. The power to incorporate being a power inherent in every Hindu owner applies as well to a customary impartible Raj an less it is excluded by statute or custom. There is no question of any statute here. Nor is there any evidence of any customs excluding such a power. If so there is no reason why the Raja could not enlarge the Raj by adding other properties, to it. He is not by so doing creating another and a separate estate distinct from the Raj itself. He is not assuming to legislate, nor is he creating mother Jheria Raj or any other Raj. If other properties are added to the Raj estate they will not form a new estate but will be an accretion to the Raj estate and will pass on the death intestate of the last holder as one entity with that estate. To such a case the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em as were so added will pass to the defendant. 33. Their Lordships will now turn to the subsidiary questions raised by the defendant in regard to moveables and to accounts. 34. The defendant recovered after the death of the late Raja rents, royalties and other moneys that had accrued due to the Raja in his lifetime. The decree of the Subordinate Judge is silent as to these items. The High Court on appeal awarded them to the plaintiffs. As to these items, the defendant urged before their Lordships that no claim for them was made in the plaint, and that even if it was, the Court of the Subordinate Judge who tried the case had no jurisdiction to entertain the claim. On the question of jurisdiction it was argued that the suit was essentially one for the recovery of immovable property within the meaning of Section 16, Civil P. C, and that no cause of action in respect of the rents, royalties and other moneys could be joined with a claim for such property without the leave of the Court in view of the provisions of Order 2, Rule 4, Schedule 1 to the Code. The material part of that rules is as follows: No cause of notion shall, unless with the leave of the Court, be joined with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it for ₹ 48, 249-3-9, with interest thereon at the rate of 6 per cent, per annum from 5th August 1916, and that this amount should be deducted from the amount payable by the defendant to the plaintiffs as provided by the decree of the Subordinate Judge. 38. That it should be declared that the plaintiffs are entitled, to all the furniture, furnishings and equipment left by Raja Durga Prasad, and that the defendant should be directed to deliver them to the plaintiffs, or to pay the value thereof as determined by the High Court. 39. That the case be remitted to the High Court. (i) To inquire into and determine the matters specified in Clause (2) above. (ii) To determine whether the defendant is entitled to credit for the amounts or any of them, alleged to have bean paid by him to the plaintiffs, and referred to in ground No. 30 of the grounds of appeal in his petition (No. 71 of 1925) for leave to appeal to His Majesty in Council (other than the expenses of the funeral and sradh ceremonies of Raja Durga Prasad), and to determine also any claim that may be made by the plaintiffs in respect of maintenance; and (iii) To give effect to the above declarations and di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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