1. The litigation giving rise to this second appeal has had a chequered career. The plaintiffs sued for a declaration that the registration of defendant No. 1 as the thikadar of village Jhidki in Tahsil Nawapara is contrary to law and that plaintiff No. 1, Gangadhar Kumbhar (who is the appellant before us) is entitled to be the sole thikadar of the village which forms the subject-matter of the suit. The plaint allegations are that the father of the parties, the deceased Bhakti Kumbhar, was the last recorded thikadar of the village and that Gangadhar plaintiff 1 and Dinabandhu father of plaintiff No. 2 are the sons of the deceased Bhakti Kumbhar by his firstwife and that the defendants Dinadayal and Kalana are the illegitimate sons of Bhakti through a mistress kept by him.
It is further alleged that the village Jhidki having been carved out of the impartible Khariar estate is inalienable and impartible and that succession is regulated by the rule of primogeniture. Gangadhar being the eldest son of the senior-most line claims to have succeeded by survivorship to the thikadari interest, to the exclusion of the other sons of the deceased Bhakti. The defendants resist this claim on the ground that the plaintiffs had separated from, the family and were living as divided members at the time of the death of Bhakti. The defendants also allege that they are the legitimate sons of the third wife of Bhakti and were living joint with him at the time of his death. It is accordingly claimed that they are entitled to succeed to the thikadari tenure under Section 109, Central Provinces Land Revenue Act (C. P. Act II of 1917). The revenue authorities upheld the claim of the defendants relying on the aforesaid Section and directed that Dindayal should be registered as thikadar of the village in preference to the plaintiff.
2. Two of the issues raised in the court of first instance need only be considered in this appeal, namely,
(1) whether the plaintiffs had been separate from the defendants and Bhakti and defendants were living joint in all respects as alleged?
and (2) Has the suit property devolved upon the defendants by law of survivorship as alleged?
The trial court found that the defendants were the legitimate sons of Bhakti and that the plaintiffs had been living divided from their father. It was further held that succession to the suit property was governed by the law of primogeniture as, admittedly, the thikadari interest was impartible.
In the opinion of the trial court the Hindu Law of succession was modified by Section 109, Central Provinces Land Revenue Act, 1917 and the defendants were entitled to succeed to the tenure in preference to the plaintiffs. The suit was accordingly dismissed. On appeal the learned District Judge while upholding the findings of the trial Judge on the issue of the illegitimacy of the defendants and the divided status of the plaintiffs was of theview that Section 109, Central provinces Land Revenue Act was not applicable to the facts of the case as that Section governed succession to protected thikadari tenures and had no application to the facts of the present case which related to an unprotected thikadar. The learned District Judge, therefore, framed an additional issue, set aside the judgment of the trial court and remanded the suit for a fresh trial. The additional issue framed was as follows:
'What is the rule of succession that prevails in the case of an ordinary thikadari interest?'
On the re-hearing of the suit by the learned Sub- ordinate Judge, Sambalpur, additional evidence was adduced by both parties regarding the custom that prevailed in the case of succession to thikadari interests. The learned Subordinate Judge held, on a consideration of the evidence, that plaintiff No. 1 being the eldest son, was entitled to get the suit thikadari tenure after the death of Bhakti, and passed a decree in his favour. This judgment was, however, reversed by the lower appellate court on the view that the plaintiff having separated from his father had lost his right as asenior member to take by survivorship. It is against this judgment of reversal that the plaintiff No. 1 has come up in appeal.
3. The concurrent findings of fact of the Courts below are that the plaintiff was living divided from his father at the time of his death; that, the late Bhakti Kumbhar was an unprotected, thikadar of the suit village which, admittedly, is impartible; that the suit village was joint family property in the hands of Bhakti and had not been the subject-matter of partition among the members of the family at any time.
Mr. Mohapatra learned counsel for the respondents, attempted to raise a new question of fact, before us, namely that it had not been proved that the suit village was the ancestral property of the parties. It had been assumed throughout, that the property belonged to the family though, the manner in which and the time when the property was acquired for the family were differently stated by the parties. According to the plaintiff the property was acquired during their grandfather's lifetime, while according to the defendants it was acquired by Bhakti himself. It is clear, however, that the defendants neither alleged, nor attempted to prove, that it was the self-acquisition of Bhakti. It is not open to the respondents to raise a new point at this late stage-particularly when it had not been alleged in the-pleadings.
It was also conceded by learned counsel for the respondents that Section 109, Central Provinces Land. Revenue Act, 1917, has no application here as that Section, in terms, applies to protected thikadars. It was, however, contended that the principle underlying that Section should be applied to cases of upprotected thikadars as well. We are not prepared to accept this contention as sound. Succession to impartible property is governed by the ordinary Hindu law of succession applicable to partible property, except to the extent modified by custom. No custom has been proved ink this case so as to enable a junior member to succeed to an impartible estate in preference to the senior line; and the principle embodied in Section 109, Central Provinces Land Revenue Act is a statutory enactment not based on custom. If there was such a custom there would have been no need for a legislative enactment.
4. The only point therefore that requires consideration is whether the plaintiff, by reason of his living separate from his father, has forfeited his right to succession by survivorship. It is settled law that when impartible property passes by survivorship from one line to another, it devolves not on the coparcener nearest in blood, but on the nearest coparcener of the senior line -- a position held by the appellant here. See -- 'Naraganti v. Venkatachalapati', 4 Mad 250 (A); -- 'Rangappa v. Rangappa', 32 Ind App 261 (PC) (B). Certain decisions of the Judicial Committee of the Privy Council to which reference will be made presently, were at one time understood as laying down that there is no coparcenary in an impartible estate and that as a necessary consequence succession to an impartible estate is not governed by survivorship. In -- 'Nilkristo Deb v. Birchandra', 12 Moo Ind App 523 (PC) (C), the Judicial Committee held that an impartible estate devolved by inheritance, but that was a case under the Dayabhaga law. In -- 'Katama Nachiar v. Rajah of Sivagunga', 9 Moo Ind App 539 at pp. 543, 593 (PC) (D), Lord Justice Turner held that if a zamindar at the time of his death and his nephews were members of an undivided Hindu family, and the zamindari though impartible was part of the common family property, one of the nephews wasentitled to succeed to it on the death, of his uncle. In that case it was held that the zamindari was the self-acquired property of the zamindar, and the actual judgment proceeded on that ground. But it was definitely recognized that if the zamindari was family property the selection of the next holder would be determined by defining the senior member judged by survivorship.
5. This point was made clear in a later caseof the Judicial Committee in -- 'Narasimham Boy v. Lakshmi Venkama', 13 Moo Ind App 113 (PC) (E) where it was observed that the judgment of the Board would have been the other way if thezamindari had been shown to have been ancestral zamindari. This principle was followed in several cases following the 'Sivaganga's case, (D)', as in -- 'Rajah Yanumula v. Rajah Yanumula', 13 Moo Ind App 333 (PC) (F); -- 'Periasami v. Periasami', 5 Ind App 61 (PC) (G). Then came the case of -- 'Sartaj Kuari v. Deoraj Kuari', 15 Ind App 51 (PC) (H), where the Board held that anestate, though impartible, could be alienated as, in their Lordships' opinion, the right to claim partition is inextricably connected with the right of coparcenary, and that where there is no right to partition the right to succeed by survivorshipis not available.
A logical extension of this doctrine is to be found in the First Pithapur case -- 'Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards', 26 Ind App 83 (PC) (I), where an alienation by a will was upheld, following 'Sartaj Kuari's case, (H)'. Nor was this doctrine confined to cases of alienation alone. In a suit for maintenance, the Board again held that a claim to maintenance being based on the ground of coparcenary, a junior member could not claim maintenance on the ground of his being a member of the coparcenary as a coparcenary was held not to exist in an impartible estate. This was theprinciple laid down in the second Pithapur case--'Rama Rao v. Raja of Pittapur', AIR 1918 PC 81 (J). It should be observed that none of these cases were cases of succession.
6. All these cases were reviewed in -- 'Baijnath Prasad Singh v. Tej Bali Singh', AIR 1921 PC 62 (K) and Lord Dunedin pointed out that the custom of importibility does not touch the general law regarding the selection of the head of the family and that the effect of the decision in 'Sartaj Kuari's case, (H)' and in the 'Pithapur cases, (I) & (J)', does not justify a contrary conclusion. In a later case of the Board reportedin -- 'Komammal v. Annadana', AIR 1928 PC 68 (L) Sir John Wallis had again occasion to reviewthe previous decisions of the Board and made the following observation:
'Those authorities in their Lordships' opinion, go far to support the inference deduced by Ramesam J., from an examination of the cases, that in order to establish that an impartible estate has ceased to be joint family property for the purpose of succession, it is necessary to prove an intention, expressed or implied on behalf of the junior members of the family, to give up their chance of succession to the impartible estate. If an impartible estate is joint family property, the fact that the members of the joint family or of any branch of the family have exercised their right of partition over their partible property, does not divest them of their interest in the impartible estate over which they have no right of partition'.
This proposition was re-affirmed in -- 'Shiba Prasad Singh v. Prayag Kumari Debi', reported inAIR 1932 PC 216 (M), where Sir Dinshaw Mulla delivering the judgment of the Board held that in order to establish that a family has ceased to be joint it is not sufficient to show separation in food and worship merely. The impartible estate still retains its character of joint family property and its devolution is governed by the general Mitakashara law applicable to such property Though the other rights which a coparcener ac quires by birth in a joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. It is a right which is capable of being renounced on surrendered It is therefore necessary to prove an intention on the part of the separate member of the family to renounce his right of succession to the estate and mere separation of food and worship or division of the partible properties cannot, by them selves, constitute renunciation of the right to succeed to the impartible property.
7. In -- 'Collector of Gorkhpur v. Ram Sundar Mal', reported in AIR 1934 PC 157 (N), it was Sound that the common ancestor of the junior holder and of the claimant had lived for a long period in complete separation in worship, food, and social intercourse. The Board held that those were not sufficient circumstances, from which renunciation of the right to succeed so as to terminate the joint status for the purpose of that right, could be inferred.
8. All that the defendants have tried to establish in this case is that the plaintiff and his brother took some property from the family and were in separate enjoyment of that property for about 20 years. It is not their case that the impartible estate was the subject-matter of partition and was allotted to their father. Now is it alleged that the plaintiffs renounced their right to succeed to the impartible property when they took their share in the partible property. We must, therefore, hold that plaintiff No. 1 being the eldest son is still joint in regard to the impartible property and cannot be said to have surrendered his birthright to claim the impartible property by survivorship. We would, therefore, set aside the judgment under appeal and grant a decree to the plaintiffs in terms of the plaint. We would however direct each party to bear his own costs in the peculiar circumstances of the case.
9. I agree.