TMI Blog1918 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed in the will as the aurasa son of the late Raja born of one of his wives, three years after the adoption of the Plaintiff's father. The Plaintiff's father contested the right of the Defendant to the Raj, and alleged that he was not the legitimate son of the late Raja. In that suit the {Subordinate Judge decided that the Defendant was not legitimate and that the Raj was inalienable. The judgment was reversed and the case decided in favour of the Defendant by the Court of Appeal and by this Board, who, without deciding as to the legitimacy of the Defendant, held that in accordion with what had been laid down by this Board in the case of Sartaj Kuari v. Deoraj Kuari I.L.R.(1888) All. 272 : 15 I.A. 51 the zamindari of Pittapur, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. 54 and Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards I.L.R.(1899) Mad. 383; 26 I.A. 83 it was impossible to base the Plaintiff's right to maintenance on any right of coparcenary accruing by birth, and that the case as put was based on no other ground. 3. It is beyond doubt that the decisions in the Madras Courts prior to the case of Sartaj Kuari v. Deoraj Kuari I.L.R(1888) All. 272 : 15 I.A 51 embodied the theory that there was joint property in an impartible zamindari, which only fell short of coparcenary because, by custom, partition was inadmissible. It is needless to cite or examine the authorities, as their Lordships do not apprehend that there is any doubt as to this statement being correct. It will be sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by birth in the ancestral property; that this coparcenary interest carries with it the inchoate right to raise an action of partition, and that until partition is de facto accomplished these same persons have a right to maintenance. It seems clear that this right is an inherent quality of the right of coparcenary--that is, of common property. The individual enjoyment of the common property being ousted by the management of the head of the family, they have a right till they exercise their right to divide, to be maintained out of the property which is common to them, who are excluded from the management, and to the head of the family who is invested with the management. As it is expressed by the late Mr. Mayne in his work : Those who would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is an obligation attaching to the individual. These categories exhaust the classes of persons who have such a right to maintenance under the Mitakshara law. 8. Their Lordships will now revert to the position of an impartible zamindari as it has been fixed by the decisions before referred to. An impartible zamindari is the creature of custom, and it is of its essence that no coparcenary exists. This being so, the basis of the claim is gone, inasmuch as it is founded on the consideration that the Plaintiff is a person who, if the zamindari were not impartible, would be entitled as of right to maintenance. There is no claim based on personal relationship. 9. This proposition, it must be noted, does not negative the doctrine that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Plaintiffs as the younger brothers of the zamindar retain such right and interest in respect of maintenance as belong to the junior members of a raj or other impartible estate descendible to a single heir. But their Lordships may agree here with what was said by the Court in the case of Nilmony Singh Deo v. Hingoo Lall Singh Deo I.L.R.(1878) Cal 256 We can find no invariable or certain custom that any below the first generation from the last raja can claim maintenance as of right. Apart from custom, what is left? The matter is tersely put by Sankaran Nair, J., in the Court of Appeal: The Plaintiff does not advance any claim based on relationship. He refuses to admit any relationship. As there was no community of interest the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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