1. In this case the question is whether, where a person succeeds to an ancestral impartible estate and also receives a legacy consisting of monies and, outstandings due by that estate, merger takes place and the legacy is extinguished. The facts may be stated shortly as follows One Chitti Babu Vijiaram Raju, one time Raja of Vizianagaram, executed a trust-deed on October, 28th, 1912, whereby he vested property in trustees to hold for himself for life with remainder over to his elder son Alakh Narayana Gajapathi Raja, for him to hold it as an ancestral impartible estate descending according to the law of primogeniture. He had another son named Vijia Ananda Raja. On the 11th September, 1922, the father died and on the 2nd October, 1922, the son, Alakh Narayana Gajapathi Raja, entered upon the ancestral estate and the trust came to an end. An aunt of Chitti Babu Vijiaram Raju, the Maharani of Rewa, had made a will on the 14th December, 1911, whereby she gave a life estate in her property to Vijiaram Raju with the remainder over in favour of Alakh Narayan Gajapathi Raja and Vijia Ananda Raja, the former being entitled to two-thirds and the latter to one-third. She died on the 14th December, 1912, so that on the same day, upon the death of his father, Alakh Narayana Gajapathi Raja received two properties, (a) the ancestral estate and (b) the legacy. The legacy, the principal property left by the Maharani of Rewa was a sum of about 32 lakhs of rupees which was owed to her by the impartible estate of Vizianagaram. During the lifetime of Viziaram Raja he received the interest due upon these monies and on his death the new Raja received it too. There are accounts showing that payments were made to him and that all along he treated the debt as subsisting and as being owed by the estate of which he was the holder to himself as legatee under the Maharani of Rewa's will. After some years had passed, no doubt after receiving some advice, in order to make the position quite plain he gave a promissory note as Zamindar, that is as owner of the impartible estate, to himself as legatee under the will. That is Ex. P-13. Various other documents are exhibited showing entries which are consistent with this attitude. An administration report on the estate made to the Court of Wards, dated the 18th January, 1937, refers in terms to an 'inside debt of 21 lakhs due to the present Raja under the Maharani's will'. It is now contended, or it was contended and the present suit is the result, that as the Zamindar and the legatee were one and the same person, the debt was extinguished the moment the estate and the legacy passed into the same hands; that is to say, that a merger takes place.
2. Now in Dulhin Lachhanbati Kumri v. Bodhnath Tiwari ., it is said that,
Merger is not a thing which occurs if so jute upon the acquisition of what, for the sake of a just generalisation, may be called the superior with the inferior right. There may be many reasons--conveyancing reasons, reasons arising out of the object of the acquisition of the one right being merely for a temporary purpose, family reasons and others--in the course of which the expediency of avoiding the coalescence of interest and preserving the separation of title may be apparent. In short, the question to be settled in the application of the doctrine is, was such a coalescence of right meant to be accomplished as to extinguish that separation of title which the records contain?
Had it been possible to apply the doctrine of merger here, I would have held that the separation had been made clear by the conduct of the Raja, by the entries in the books of account and by the terms of the report to the Court of Wards. But I think the merger could not in any event take place because I think the Raja bad one status as Zamindar, that is as owner of the impartible estate, and another as recipient of the legacy. He was absolute owner of the legacy. He was not, in my opinion, absolute owner of the impartible estate. Whatever may be the case in other parts of India, in Madras, since the passing of the Impartible Estates Act of 1904, the holder of an impartible estate is in the same position as the manager of a joint Hindu family; he is an owner subject to limitations; he is a qualified and not an absolute owner. Therefore the Raja had a dual capacity. In one he owed money to the legatee, in the other he was the legatee to whom money was owed. There was therefore no merger, and the debt was not extinguished. The plaintiffs succeed in the claim and there will be a decree in the terms of the prayer. Costs of the suit will be paid by the first defendant out of the estate and there will be no order as to costs with regard to defendants 2 and 3. I certify for two counsel for the 1st plaintiff.