1. The petitioner is the younger brother of the Zamindar of Bobbili, the third respondent. In the affidavit filed in support of the petition he states that he is a junior coparcener of the joint family which owned the ancient and impartible estate of Bobbili which was notified under the Madras Estates (Abolition and Conversion into Ryotwari) Act of 1948 with effect from 7th September 1949, that on the date when this estate was so notified the joint family consisted of the petitioner, the third respondent, the fourth respondent the son of the third respondent and the male descendants of the petitioner himself, that after the estate was taken over by the Government the Government deposited in the office of the Estates Abolition Tribunal, Vizianagaram (second respondent) on 30th March 1950 a sum of Rs. 8,17,445 towards advance compensation under Section 41 of the Act and a further sum of Rs. 58371 under Section 50 of the Act on 14th July 1950, that on and from the notified date the Madras Impartible Estates Act, 1904, should be deemed to have been repealed in its application to this estate under Section'66 of the Act, and that having regard to the rights of the parties and applying the general law ignoring the rule of impartiality and the rule of primogeniture which is incidental thereto he is entitled to a half share of the compensation money remaining after the satisfaction of the claims, if any, of the genuine creditors of the estate and of the maintenance holders.
2. The petitioner impugns the validity of the Act providing for a distribution of the compensation amount in the case of certain impartible estates. The following are such provisions :
"45(1) In the case of an impartible estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply.
(2) The Tribunal shall determine the aggregate compensation payable to all the following persons, considered as a single group --
(a) the principal landholder and his legitimate sons, grandsons and great grandsons in the male line living or in the womb on the notified date including sons, grandsons and great grandsons, adopted before such date (who are hereinafter called 'sharers'); and
(b) other persons who, immediately before the notified date, were entitled to maintenance out of the estate and its income either under Section 9 or 12 of the Madras Impartible Estates Act, 1904, or under any decree or order of a court, award, or other instrument in writing or contract or family arrangement which is binding on the principal landholder (who are hereinafter called
Provided that no such maintenance-holder shall be entitled to any portion of the aggregate compensation aforesaid, if, before the notified date his claim for maintenance or the claim of his branch of the family for maintenance, has been settled or discharged in full .... ... ... ....
(4). The portion of the aggregate compensation, aforesaid payable to the maintenance holders shall be determined by the Tribunal and notwithstanding any arrangement already made in respect of maintenance whether by a decree or order of a court, award or other instrument in writing or contract or family arrangement, such portion shall not exceed one fifth of the remainder referred to in Sub-section (3), except in the case referred to in the second proviso to Section 47, Sub-section (2).. ... ... ...
(6) The balance of the aggregate compensation shall be divided among the sharers, as if they owned such balance as a joint Hindu family and a partition thereof had been effected among them on the notified date. 47(1). Every maintenance-holder entitled to a portion of the compensation under Section 45 shall also be entitled to the grant of a ryotwari patta in respect of a portion of the lands referred to in Section 12 or 14, as the case may be.
(2) The Tribunal shall determine the total extent of the lands in respect of which ryotwari pattas may be granted to the maintenance-holders and divide the same among them, and in doing so, the Tribunal shall, unless for reasons recorded in writing it considers that it is inappropriate to do so, haying regard to the considerations set forth in Section 45, Sub-section (5) and the manner in which the compensation payable to the maintenance-holder has been or may be apportioned among them under that Sub-section:
Provided that the total extent of the lands granted to all such maintenance-holders shall not exceed one-fifth of the extent of the lands in respect of which a ryotwari patta may be granted under Section 12 or 14:
Provided further that where it is found to be inconvenient or impracticable to grant any such lands, or to grant any such lands to the full extent to which the maintenance-holder may be regarded as entitled, whether on the ground that such a grant will result in the creation of an uneconomic holding or for any other reason, the share of the compensation awarded to the maintenance-holder may be increased by such amount as the Tribunal may consider reasonable;
(3) The lands in respect of which a ryotwari patta may be granted under Section 12 or 14, after excluding any lands which may be granted to maintenance holders under Sub-section (2) shall be divided among the sharers, as if they owned such lands as a joint Hindu family & a partition thereof had been effected among them on the notified date."
3. Section 50 provides for interim payments.
4. The validity of these sections is impeached on several grounds, viz., that it was not competent of the Provincial legislature to pass any law on that subject-matter, because it is not covered by "any entry in the State Legislature List, or Concurrent List that these provisions are on the basis of an arbitrary classification offending against Article 14 of the Constitution and that the scheme of distribution interferes with the vested rights of the other members of the family like the petitioner. Mr. Rajah Aiyar, however, pressed upon us at the outset the position that the compensation amount represents the equivalent of an ancestral estate' to which the incident of impartibility can no longer attach after its conversion into money and after the repeal of the Madras Impartible Estates Act. Having taken the place of ancestral property and having lost the special feature of impartibility the compensation amount would be partible as between the persons having the right of survivorship based on the right by birth. So the argument ran. It is on this point we heard the matter fully, and in our opinion the petition can be disposed of on the decision which we have arrived at on this point.
5. The argument of Mr. Rajah Aiyar, learned counsel for the petitioner, was that with the taking over of the estate by the Government and the repeal of the Impartible Estates Act so far as this estate is concerned and the conversion of the immovable property which constituted the impartible estate into money, namely, the compensation payable by the Government, the incident of impartibility which attached to the estate should be deemed to have ceased and therefore the compensation amount should be treated as the property of the joint family consisting not only of the third respondent and his son, the fourth respondent, but also the petitioner and his male issue.
6. We are unable to follow his argument that the repeal of the Madras Impartible Estates Act brought about an extinguishment of the incident of impartibility. So far as the Bobbili estate is concerned,' it does not become an impartible estate by virtue of its inclusion in the schedule to Madras Act II of 1904. It was an ancient impartible estate and the utmost that could be said of its inclusion in the schedule is that its impartibility was recognised. Nor are we able to appreciate his argument that the custom of impartibility which admittedly attached to the Estate lasted and could last only so long as the estate was in the shape of immoveable property, and in particular landed property, and that as soon as the estate or a part of it is acquired by the Government the compensation amount payable for such acquisition must be deemed to be not impresed with the custom of impartibility. Learned counsel was unable to cite any authority even remotely bearing on the question.
7. It is obvious that only persons who have an interest in the property which is acquired are entitled to a share in the compensation awarded on the acquisition of the property by the Government (See Halsbury's Laws of England, 2nd Edn. Vol VI at page 39). The real question in this case is whether the petitioner and persons like him can be said to have any interest in the estate since acquired. The nature and incidents of an impartible estate have come up for discussion and authoritative exposition by their Lordships of the Judicial Committee on several occasions. It suffices to refer to the statement of the law by Sir Dinshaw Mulla in -- 'Shiba Prasad Singh v. Prayagkumari Debee', 59 Cal 1399 P. C.
"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 main tenance, and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartiality as laid down in 'Satraj Kuari's case, 10 All 272 P. C. and the first Pittapur case, 22 Mad 383 P. C. and so also the third as held in the -- 'Second Pittapur case', 41 Mad 778 PC. To this extent the general law of the Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed, with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still remains, and this is what was held in -- 'Baijnath's case', 43 All 228 PC. To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights, which a coparcener acquired by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains."
8. Subsequent to this statement of the law there were certain observations made by the Privy Council in -- 'Collector of Gorakpur v. Ram Sundar Mal', 56 All 468,
"One result is at length clearly shown to be that there is now no reason why the earlier judgments of the Board should not be followed, such as for instance the -- 'Chellapalli case, Raja Yarlagadda Mallikarjuna Prasada Nayudu v. Raja Yarlagadda Durga Prasada', 24 Mad 147, which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior member of the family, with the result that these members holding zamindari lands for maintenance could still be considered as joint in estate with the zamindar in possession."
9. In a later case, namely, -- 'Commissioner of Income-tax' Punjab v. Krishna Kishore', 23 Lah 1, their Lordships, after an elaborate review of all the important decisions of the Board bearing on the point, observed that the law as declared in -- 'Shibprasad Singh v. Prayagkumari Debee', 59 Cal 1399 PC, had not been unsettled by the decision in -- 'Collector of Gorakhpur v. Ram Sundarmal', 56 All 468. In -- 'Anant Bikappa v. Shankar Ramchandra', ILR 1944 Bom 116, their Lordships said:
"Now an impartible estate is not held in coparcenary (-- 'Rani Satraj Kuari v. Deoraj Kuari', 10 All 272 PC) though it may be joint family property. It may devolve as joint family property or as separate property of the last male owner. In the former case it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom, e.g., lineal male primogeniture. In the latter case jointness and survivorship are not as such in point; the estate devolves by inheritance from the last male owner in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom."
10. In view of the above pronouncements of the Privy Council learned counsel for the petitioner could not succeed in convincing us that the petitioner had any right to the impartible estate or the compensation paid on its acquisition. The petitioner undoubtedly is entitled to maintenance both according to the custom and according to the statutory provisions embodied in Section 9 etc., of the Madras Impartible Estates Act. But his right to maintenance is not attributable to any present interest in the estate.
11. Mr. Rajah Aiyar was unable to cite any authority for the position that the custom of impartibility with all its incidents will cease to apply once the estate is converted into money. On the other hand, when proceedings under the Land Acquisition Act have been taken to acquire a part of an impartible estate the proceeds have been regarded as money belonging to a person not capable of alienating the land acquired (see -- 'Special Deputy Collector, Ramnad v. Rajah of Ramnad', 58 Mad 442). It is difficult to follow the argument that the nature of an estate in any immovable property is changed once it is converted into money.
12. Taking the obvious case of a Hindu widow holding immovable property with the limitations of a widow's estate, it cannot be said that if the Government acquired that property the compensation paid therefor would rot be subject to the limitations of a widow's estate and that the widow will have a right of absolute disposal over the compensation. In --- 'Ramachandrarao v. Ramachandrarao', 45 Mad 320 PC, their Lordships of the Judicial Committee refer to the land acquired by Government for which compensation had been deposited as a "piece of land represented by a sum of money paid into court". The principle that conversion would not alter the quality or nature of the estate is of universal application. In England when money is paid into court as the produce of real estate converted by compulsory powers it is treated as impressed with the quality of real estate (Vide White and Tudor's leading Cases on Equity, 9th Edn., page 325).
13. In any event, we are of opinion that the petitioner cannot be deemed to have had any interest in the estate at the time of the notification. The material time for the purpose of determining the rights of parties would be the date of the notification by virtue of which the estate is statutorily transferred to the Government. The simple question is, at that point of time did the petitioner have any subsisting and real interest in the estate? The answer must be none except his right to get maintenance in accordance with the custom embodied in Section 9 of the Madras Impartible Estates Act. Of course, the petitioner will have his right of succession in certain contingencies. But one certainly cannot treat this right as a right to a share in the property during the lifetime of the holder for the time being. If at the time of the notification, the petitioner did not have any right to a share in the corpus of the estate, then he cannot contend that after the notification and after the estate had vested in the Government he will have such a right.
14. In this view, it is unnecessary to deal with the constitutional issues raised by the petitioner concerning the validity of Section 45 and connected provisions of the law. The application is therefore dismissed.