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Pushavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur, Raja of Vizianagaram Vs. Vishweshwar Gajapathi Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberC.S. No. 495 of 1949
Judge
Reported inAIR1955Mad219
ActsHindu Law; Madras Impartible Estates Act, 1904; Evidence Act, 1872 - Sections 101 to 103; Tenancy Law; Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Sections 3, 12, 18, 18(1), 18(2), 18(3), 18(4), 45 and 66(1)
AppellantPushavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur, Raja of Vizianagaram
RespondentVishweshwar Gajapathi Raj and ors.
Appellant AdvocateAdv. General, ;V.V. Raghavan and ;P. Rami Reddi, Advs.
Respondent AdvocateN. Rajagopala Aiyangar, ;M. Seshachalapathi, ;S. Ramayya Nayak and ;D. Narasaraju, Advs.
Cases ReferredJanardhana Krishna Ranga Rao v. State of Madras
Excerpt:
family - impartible estate - hindu law, madras estates act, 1904, sections 101 to 103 of evidence act, 1872, tenancy law, sections 3, 12, 18, 18 (1), 18 (2), 18 (3), 18 (4), 45 and 66 (1) of madras estates (abolition and conversion into ryotwari) act, 1948 - whether holder of impartible estate governed by act of 1904 had any power to incorporate further properties with estate made impartible by that act - section 18 is comprehensive in its scope - it deals with all buildings within ambit of zamindari whoever could claim rights in those buildings - section 18 (1), 18 (2) and 18 (3) dealt with buildings that had belonged to landholder immediately before notified date - sub-section (4) provided that all buildings other than those covered by sub-sections (1), (2) and (3) is of abolition act -.....rajagopalan, j.1. the preliminary decree in this suit defining the shares for the partition of the properties among the heirs of alak narayan, was issued on 11-9-1950. there was no dispute either on the question who were the heirs, or on the question, what their shares were. the two sons of alak narayan and their mother rani vidya-vathi were the heirs and each was entitled to a third of the partible properties of the joint family of which they were members along with alak narayan. it would be convenient to refer to the two sons in the rest of this judgment as the plaintiff and defendant 1 and their mother, the second defendant in this suit, will be referred to by her name.2. when the determination of the assets of the joint family available for partition was taken up, a list of 106 items.....
Judgment:

Rajagopalan, J.

1. The preliminary decree in this suit defining the shares for the partition of the properties among the heirs of Alak Narayan, was issued on 11-9-1950. There was no dispute either on the question who were the heirs, or on the question, what their shares were. The two sons of Alak Narayan and their mother Rani Vidya-vathi were the heirs and each was entitled to a third of the partible properties of the joint family of which they were members along with Alak Narayan. It would be convenient to refer to the two sons in the rest of this judgment as the plaintiff and defendant 1 and their mother, the second defendant in this suit, will be referred to by her name.

2. When the determination of the assets of the joint family available for partition was taken up, a list of 106 items of immoveable properties was filed into court, with reference to which the parties formulated their claims and objections. The figure 106 may be misleading, because sub-items were enumerated under many of the 106 items. The question of the partition of the jewels also was taken up. Most of the jewels were in the Thoshakhana within the fort of Vizianagaram, the residence of the Zamindar and his family. With reference to these jewels also the parties formulated their claims to which objections were lodged by the others.

While claims to the immoveable properties had to be adjudicated only between the plaintiff, the first defendant and their mother, the Dowager Rani Lalithakumari Devi pressed for the adjudication of her claim, that some of the items in the Thoshakhana constituted her stridhanam and were therefore not available for partition between the plaintiff, defendant 1 and their mother. That was one of the claims included in the application she filed. Appln. No. 4830 of 1950. Rani Vidya-vathi claimed 55 items of jewellery as her stri-dhanam, to be excluded from the scope of the partition. The plaintiff specified 140 items of jewellery and contended that these constituted the 'regalia' of the zamindar, impartible by custom, and he urged that those also should be excluded from the scope of the partition.

3. With reference to these, claims and counter claims, 15 issues weere framed on 2-4-1953. The evidence was mostly documentary. The only oral evidence was that of the Dowager Rani Lalitha-kumari Devi, who was, examined on commission with the consent of the parties under the orders of this court.

4 Even at the outset one point has to be remembered. Since Alak Narayan died in 1937, under the law as it stood then, his widow Rani Vidyavathi would not be entitled to any share in the agricultural properties of the family.

5. In addition to the claims mentioned above, the plaintiff contended that a sum of over Rs. 9 lakhs was due to him as the holder of the impartible estate of Vizianagaram from the assets of the Joint family of which, of course, he was also a sharer. The parties were directed to formulate their claims and defences with reference to this alleged liability. They were filed. But adjudication of this issue was deferred, and the claim to this sum of Rs. 9 lakhs, was not the subject matter of any of the 15 issues that were framed on 2nd April 1953.

6. The list of 106 items of immoveable pro-perties will be appended to the issues as the reference in the issues to the items was on the basis of this list. The issues together with this list will be added to this judgment.

7. Of these issues, 1, 4, 5, 6, 7, 8 and a part of issue 12 relate to buildings. Issues 2 and 3 deal with villages as units and 9, 10, 11 and 12 deal with the lands that lay within the ambit of the zamindari. Issues 13, 14 and 15 deal with the jewels of the family.

8. Two of the principal questions argued before me did not form part of the subject matter of any specific issue; but adjudication of these questions must form one of the grounds for the ultimate determination of many of the 15 issues framed with reference to the items specified therein.

9. One group of these questions was whether each of the successive zamindars from Viziarama Ganapathi onwards had the power to incorporate his self-acquired properties with the impartible zamindari of Vizianagaram, and if he had. that power, whether he exercised it with reference to any given piece of property. The second question was whether the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, Act XXVI of 1948 hereinafter referred to as the Abolition Act, overrode the rights and liabilities of the parties with reference to these properties which they could otherwise have claimed. I therefore propose to deal with these two questions first before deciding the 15 issues framed for determination at this stage.

10. INCORPORATION: Many of the basic principles of incorporation were finalised by the Privy Council in -- 'Shiba Prasad Singh v. Prayag Kumari Debi , after an exhaustive review of the case law on the subject up to that date. After referring to the right of a member of a joint family to incorporate with the properties of the joint family any property acquired by himself, their Lordships observed at p. 225:

'On the same principle a member of a joint family, who is the holder of an ancestral im-partible estate, may declare his intention to incorporate his self-acquired property with the impartible estate. By so doing, he expresses his Intention to alter the course of devolution of the self-acquired property. This their Lordships think, he is entitled to do, though the ancestral estate is impartible'.

It should be remembered that these observations were made with reference to the Jheria Raj, which was impartible by custom.

Their Lordships distinguished an estate impartible by custom from an estate which wasgranted by the Crown under a sanad subject todescent by primogeniture. At p. 226 their Lord-ships laid down:

'Had the Raj been an estate granted by the Crown under a sanad subject to descent by primogeniture, as was the taluq in the -- 'Rajin-dra Bahadur Singh v. Raghubans Kunwar', AIR 1918 PC 25 (B), the boundaries as defined 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 primo-geniture 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 applied as well to a customary impartible Raj unless it is excluded by statute or custom. There is noquestion of any statute here; Nor is there any evidence of any custom excluding such a power. If so, there is no reason why the Raja could not enlarge the Ra] by adding other properties to it'.

The Vizianagaram estate was impartible by custom in the hands of Viziarama Gajapathy and his son Anand Gajapathy. Each of them therefore had undoubted right to incorporate the properties acquired by himself with the impartible estate of Vizianagaram. When Chitti Babu took the estate under Anand Gajapathy's will; Ex. P-6, the impartiality which had attached itself by custom to the Vizianagaram zamindari ceased to be effective. Chitti Babu was a minor when the estate devolved upon him under the terms of Anand Gajapathy's will. He was still a minor when the impartibillty was imposed again on the Vizianagaram zamlndari by statute, the Impartible Estates Acts of 1902, 1903 and finally the Act of 1904.

11. Sri Rajagopala Ayyangar contended that the right to Incorporate was really an incident of the impartibility of an ancestral estate which was impartible only by custom. As that dis- appeared, when Chitti Babu took the estate under Anand Gajapathy's will neither Chitti Babu nor his successors had any further right to effect any incorporation. Apart from other considerations, Chitti Babu was a minor between 1897 and 1904. There could therefore be no question of any incorporation during that period. Nor was there any evidence of incorporation during that period.

The real question, therefore, is whether the holder of ah impartible estate governed by Act 2 of 1904 had any power to incorporate further properties with the estate made impartible by that Act. In the schedule to that Act were specifled the estates which were declared Impartible. I am not here Concerned with an estate which could be claimed to be impartible both under that Act and under the custom which governed that estate. It is not therefore necessary todecide whether in the case of such an estate, thestatute, Act 2 of 1904, wholly superseded theimpartibility by custom. Vizianagaram was notsuch an estate. As I have already pointed out,the impartibility by custom terminated when theestate came into the hands of Chitti Babu in1897, and that custom was certainly not revivedor saved either expressly or impliedly by Act 2of 1904. There was no express provision eitherin that Act empowering the holder of an impartible estate to incorporate other properties inthe estate declared by that statute to be impartible.

12. There appears to be no decided, case where the power to incorporate with an estate which was impartible only under the provisions of Act 2 of 1904 was either upheld or negatived. In AIR 1918 PC 25 (B), the taluka of Mahewa was held under a Crown grant made in 1861 under a sanad with a primogeniture clause regulating succession to it. The Privy Council held that the Crown had power in British India by grant of lands to limit their descent in any way it pleased, but. a subject had no power to impose upon lands, or other property, any limitation of descent at variance with the ordinary law applicable.

At p. 26, in dealing with the contention, that the Government had no power to grant to a Hindu, as it did, by the sanad of 1861, an estate which should descend on an intestacy to the nearest male heir according to the rule of primogeniture, their Lordships stated:

'Whatever force such a contention might otherwise have had appears to their Lordships to be removed by the Act to which attention was called, the Crown Grants Act (Act XV of 1895).'

Section 3 of the Act enacted:

'All provisions, restrictions, conditions, and limitations over contained in any such grant or transfer, as aforesaid, shall be valid and take effect according to their tenor, any rule of law, statute, or enactment of the legislature to the contrary notwithstanding.'

It was really a case of a statute governing succession to an estate by applying to the Mahewa estate the rule of descent by primogeniture as embodied in the Sanad of 1861. There could be no incorporation with such an estate was what was decided by the Privy Council in AIR 1918 PO 25 (B).

13. These principles were reiterated in --'Mohammad Sadiq All Khan v. Pakr Jahan Begam and again in .

Earlier, in the Siyagiri case, -- 'Gurusami Pandiyan v. S. Kalai Pandia', AIR 1921 Mad 340 (D) at pp. 354, 355, Krishnan J. pointed out the distinction between an estate succession to which was regulated by custom including the rule- of primogeniture, and an estate where the line of descent by lineal primogeniture was regulated by the conditions of Crown grant. In my opinion, it is the principle underlying AIR 1918 PC 25 (B) that should apply to an estate which owes its impartibility, and devolution according to the principle of primogeniture only to a statute, in this case, Act II of 1804. Any addition to the ambit of the estate subsequent to Act II of 1804 could only have been by legislation and could not have bean achieved by the holder for the time being of the impartible estate. Apart from the question, whether any further addition to that estate would be an attempt to change the line of devolution to that property, the main objection to any claim of a right to acid or to incorporate would be that what has been declared by Act II of 1904 to be impartible can alone continue as impartible, and the imparti-bility imposed by that statute cannot without legislative sanction be extended to any other property.

14. Sri Rajagopala Ayyangar contended that the right of incorporation was really an incident of impartibility by custom. I do not think it necessary for the purpose of this case to record my view on the soundness or otherwise of that contention. At , their Lordships of the Privy Council pointed out:

'.....a member of a joint family who is the holder of an ancestral impartible estate may declare his intention to incorporate his self-acquired property with the impartible estate.'

The estate of Vizianagaram was neither ances-tral nor impartible when it came into the hands of Chitti Babu in 1897 under Anand Gajapathy's will. There could therefore be no question of Chitti Babu exercising any power to incorporate any property which was self-acquired property in his hands with the Vizianagaram estate. I shall deal later with another contention of Sri Raja-gppala Ayyangar, that the Vizianagaram estate itself, impartible by custom up to 1897, was the separate or self-acquired property of Chitti Babu when it devolved upon him under the terms of Anand Gajapathy's will.

15. To sum up the discussion on the question of the right of the holder of impartible estate to incorporate other properties of his with it, I hold that, while Vialarama Gajapathy and Anand Gajapathy had such power, Chitti Babu did not have that power. Nor had Alak Narayan, though a further discussion of his power is not necessary in the absence of any evidence to show that Alak Narayan during his life time effected any incorporation.

16. The exercise of that right to incorporate,of course, is a question totally different from theexistence of that power. The case law dealingwith evidence of incorporation was summed upat pages. 849-850 in Mayne on Hindu Law andUsage, 11th Edition. The following propositionscan be taken to be settled law.

1. When a claim is made to a certain property on the ground that it was part of an ancestral impartible estate, it must be proved on the evidence adduced in the case that it was made part of that estate. There is no initial presumption one way or the other.

2. The intention of the acquirer to incorporate his acquisitions with the estate may be either express or implied from his conduct or surrounding circumstances.

3. The Intention can only be manifested by the holder of the estate and not by the guardian or manager of the property, for example, the Court of Wards, on his behalf -- see -- 'Kamaya Nayak-kar v. Viralakshmi Animal : AIR1940Mad814 .

4. No presumption of any intention to Incorporate can be drawn from the blending of the income of the self-acquired property with the income of the estate as in the case of an ordinary joint family estate, for the income of the impartible estate is the holder's absolute property. This principle, laid down in earlier decisions of the Privy Council, was reaffirmed in .

5. If the acquisition is made out of the estate, prims facie it would be the property of the zamindari, but if the acquisition is made out of the income of the zamindari, it would prima facie be the separate property of the zamindari unless by express declaration or by acts and circumstances or by necessary implication, the intention to incorporate the said property in the zamindari is made manifest.

6. Where the properties acquired were (im-partible) zamin properties to start with, and the subsequent acquisitions only resulted in an enlargement of the zamin rights in them, the presumption is, in the absence of proof that the new rights acquired were kept separate, they passed as part of the zamindari. This was reaffirmed in the : AIR1931Mad340 .

17. As ancillary to the fifth of the propositions mentioned above, that the initial presump- tion is that the properties acquired out of the income of an impartible zamindari are the separate properties of the acquirer, it may be said that this presumption could be rebutted by the use to which the properties were put. If the pro- perties were used for the purpose of the impartible estate, the intention to incorporate the acquisition with the impartible estate could be gathered. Mr. Rajagopala Ayyangar contended that the initial presumption could not be rebutted if it was proved that the properties had been rented to others. Whether that would be so in all cases would again be a question of fact to be decided with reference to all the factors proved In the case, one of which would, of course, be the fact, that the properties so acquired by the zamindar had been rented.

18. In the unreported decision in the -- 'Arni case', C. S. No. 258 of 1916 (Mad) (P) Coutts Trotter J. observed:

'If lands are brought quite close to the zamindari so as to naturally form an expansion to it, then the presumption is that they are in-tended to become part of the zamindari. But I think there is a strong presumption, accord-ing to the Madras cases, although agricultural lands in different parts of the country may not be accretions, that residential houses bought by the Jagirdar out of his self-acquisitions may form accretions as being suitable residences for persons in the position of a zamindar. If the matter had stood there I should certainly have no hesitation in holding that the houses in Madras, Ootacamand and Bangalore were intended to be part of the zamindari and to be residences for the zamindar in the various places.'

I respectfully agree with those observations, particularly those relating to buildings outside the ambit of the zamindari acquired by the zamin-dar for his residential purposes.

No doubt in AIR 1921 Mad 340 CD), the claim, that the bungalow at Courtallam had been incorporated with the zamindari and had become impartible, was negatived. But that was with reference to the facts proved in that case. At pp. 355-356 of the same report the bungalows at Sankaranayanarkoil and Srivilliputtur were held to have been incorporated, because the zamin-dar's officials used the buildings when they went to those places to transact zamindari business, and those buildings had been never let out or used for any other purpose. Whether the acquisition of a given building outside the ambit of the zamindari was for the purpose of the residence of the zamindar, as such is necessarily a question of fact to be decided in each case with reference to all the factors including the location of the buildings and the status of the zamindar.

19. Mr. Raghavan relied on -- 'Lakshmipathi v. Kandaswami', 16 Mad 54 (G); -- 'Ramasami Kamaya Naik v. Sundaralingasami Kamaya Naik', 17 Mad 422 (H); the Udayarpalayam case, -- 'Kachi Yuva Rangappa Kalakka Thola Uda- yar v. Kachi Kalyana Rangappa Kalakka Thola Udayar', 24 Mad 662 (I) and the -- 'Ramnad' case', 24 Mad 613 (J) and contended that the intention to incorporate and an accomplished incorporation could be gathered from the fact, that the properties acquired by the zamindar were succeeded to along with the zamindari by a single. Their, zamindar after zamindar. Mr. Rajagopala Ayyangar urged that this test should no longer be held to be good law after . Though 16 Mad 54 (G) and 17 Mad 422 (H) were referred to in no presumption was drawn from the fact, that the properties in question, that is, those referred to as Sch. Ka at p. 218, passed from zamindar to zamindar. I am unable, however, to accept the contention of Mr. Rajagopala Ayyan'gar that the principles laid down in the Madras cases referred to above is no longer good law after .

In -- Sarabjit Partab Bahadur Bahi v. Indrajit Partab Bahadur Sahi', 27 All 203 (K), the learned Judges followed 16 Mad 54 (G) and 17 Mad 422 (H). 27 All 203 (K) was definitely overruled by the Privy Council, but their Lordships never specifically dissented from any of the principles laid down in 16 Mad 54 (G) and 17 Mad 422 (H). In the unreported decision of Satyanara-yana Rao and Govinda Menon JJ. In -- 'A. S. No. 457 of 1945 (Mad) (L)', the learned Judges pointed out that 16 Mad 54 (G), 17 Mad 422 (H) and AIR 1921 Mad 340 (D) had been cited without dissent by the Privy Council in . The learned Judges were obviously of the view, that the principles laid down in these cases still constitute good law. They are binding on me as authorities.

It is necessary however, to examine these casesa little more closely before I accept the position,that succession from zamindar to zamindar is by itself enough to prove incorporation. Two features have to be borne in mind. In the the cases, 16 Mad 54 (G), 17 Mad 422 (H), 24 Mad 662 (I) and 24 Mad 613 (J) was such succession the sole basis on which the learned Judges upheld the claim of incorporation. The other feature, in the case of Vizianagaram was Anand Gajapathy's was the only instance of in-testate succession, and when he succeeded his father Viziarama Gajapathy, Anand Gajapathy was the only heir.

20. What was decided in 16 Mad 64 (G) was that the Pannai lands should be considered as appurtenant to the impartible zamindari. From the observations of the learned Judges at p. 56 of the report it should be clear that there was plurality of heirs in the past and only the single heir who succeeded to the zamindari took also the Pannai lands. A definite attempt to prove that the Pannai lands had been shared failed--see the observations of the learned Judges at p. 58. Another factor taken into account was the assignment of a portion of the Pannai lands as provision- for the support of the junior members of the family for their maintenance. From all these facts, an inference of incorporation was drawn. It was not rested solely on succession.

21. 17 Mad 422 (H) again dealt with Pannai lands. The test of succession laid down in 16 Mad 64 (G) was again applied, but the observa-tions at p. 444 would show that there was plura-lity of heirs and the single heir who took the zamindari also took the Pannai lands. The learned Judges pointed out the mistake committed by the Subordinate Judge in treating the father of the claimant as the last holder and observed that it was the brother of the claimant that was the last holder. The learned Judges also observed:

'His object in acquiring them as private property could only be for the purpose of alienation and the presumption is that if he doesnot alienate them in his life time or by testamentary disposition, his intention was to addthem to the estate.'

With this aspect of the case I shall deal later.The fact, that the only instance of intestate succession in the case of Vizianagaram was that ofAnand Gajapathy's, and that there was no plurality of heirs should suffice to distinguish thefacts in this case from those the learned Judgeshad to consider in 17 Mad 422 (H).

22. In 24 Mad 562 (I), the question was whether the two villages, Mavattiruppu and Vandayiruppu, had been incorporated with the impartible zamindari. The learned Judges pointed outat p. 610:

'They were originally acquired by the istimirarzamindar and the District Judge finds that two-thirds of these passed from zamindar to zamindar and one-third was sold by an order of theCourt and passed from the family for a timebut was repurchased by the fourth zamindar in1878. In an cases the purchases were presumably made from the zamindari funds.'

The learned Judges also pointed out:

'The zamindar first claimed the property as part of his zamindari and it was only when this claim was disallowed that he tried the other plea and treated them as partible. The original plea of the zamindar is certainly as likely as his later plea to be correct.'

It was thus not a case of succession from zamindar to zamindar, and more than one at that, being the real basis for the decision, that these two villages were incorporated with the impartible zamin. That the two villages were acquired from the zamindari funds, not the income which was the absolute property of the zamindar, should suffice to distinguish the present case, where, it was not the case of any one that any portion of the corpus of the impartible zamindari had to be utilised for the acquisitions made by Viziarama Gajapathy and Anand Gaja-pathy.

23. In 24 Mad 6I3 (J), the question of incorporation arose with reference to the lands within the ambit of the zamindari, Siruthettu, Pannai and Kolkriam properties. The learned Judges observed:

'It is not denied that items 1 to 13 were sold for arrears of peisucush which accrued due during the lifetime of the late palayagar and bought for the respondent with the zamin funds...... As acquirer, the late zamindar was at liberty to alienate the Pannais and Kolkriams at his pleasure but as their acquisition is in the nature of an enlargement of the zamindar's interest hi the zamin lands, the presumption is, in the absence of any disposition on his part or of special custom, that on his death they were intended to be incorporated with the zamindari.'

There is no dispute with the principle, that where an acquisition results really in an enlargement of the zamindar's interests, an intention to incorporate could be drawn. That would not apply to other immovable properties, for example, buildings.

24. Thus, even though succession from zamindar to zamindar with a plurality of heirs to choose from may be a factor to be taken into account in deciding whether a given -piece of, property could be deemed to have been Incorporated with the impartible estate, the principles laid down in 16 Mad 54 (G), 17 Mad 422 (H), 24 Mad 562 (I) and 24 Mad 8I3 (J) could not tee applied to the claim in the present suit. As I have pointed out earlier, the only case of intestate succession was that of Anand Gajapathy, and there was no plurality of heirs then. The principles laid down in these cases were with reference to lands, and the main trouble in this case is over the buildings. Succession of Anand Gajapathy to Viziarama Gajapathy may not therefore be decisive at all in considering whether even the properties acquired by Viziarama Gajapathy had been incorporated with the impartible zamindari when Anand Gajapathy succeeded to it.

25. In 24 Mad 562 (I) the learned Judges held that the onus lay on the plaintiff to show that the property was partible. But that has to be construed with reference to the facto set out earlier, particularly the attempt of the plaintiff to prove in variance with his original plea that the property was partible. I do not understand that decision to have laid down as a universal proposition that where the question at issue is whether the property had been Incorporated or not, it is the person, who claims the property to be partible to prove that it is partible.

26. Both in 17 Mad 422 (H) and in 24 Mad 613 (J) the fact, that the acquirer had not alienated the property during his life time, was con-sidered enough for a presumption that the intention of the acquirer was to Incorporate that property. These observations again have to be correlated to the other facts proved in this case, principally succession on more than one occasion and that of plurality of heirs. In the present case, it was only Viziarama Gajapathy that passed on his acquisitions to his son Anand Gajapathy. The next zamindar Chitti Babu took all the proper-ties under Anand Gajapathy's will I am unable to see any real basis for extending the principle of the test of non-alienation to the claims in this case.

27. I have already pointed out that from the mere blending of the income from the self-acquired properties with that of the impartible estate, no intention to Incorporate could be drawn, because both sets of income would be his separate property in the hands of the holder of both sets of property. If the accounts of the holder of on impartible estate merely showed such blending, that would not take the case for incorporation any further. But in this case, it was not merely to prove the blending of income that the plaintiff relied on the accounts that were marked in evidence. What probative value should be given to them has to be considered. I am unable to accept the contention of Mr. Rajagopala Ayyangar, that the system of maintaining accounts is really not relevant in deciding the question of incorporation.

It is true that no accounts maintained by or under the orders of Viziarama Gajapathy were put in evidence. There was very little of the accounts maintained during Anand Gajapathy's time. The bulk of the accounts were those maintained either when the trustee or the Court of Wards was in management. No doubt, neither the trustee nor the Court of Wards could effect any incorporation on behalf of the then holder of the impartible estate of Vizlanagaram. But it was not the case of any one that either the trustee or the Court of Wards departed from the old system of maintaining accounts. It was the old system that was continued showing certain Items as ayan properties, that is, properties forming part of the impartible estate, and other properties as joint family properties. What is the probative value of these accounts I shall consider in dealing with the several items of properties to which claims have been made in this suit. It is enough for the present to state that the accounts maintained during the period when the trustee and the Court off Wards were in management are not wholly irrelevant.

28. Mr. Raghavan for the plaintiff urged that Ex. P-6, the will of Anand Gajapathy, by itself proved that all the immovable properties of which Anand Gajapathy died possessed had been incorporated with the impartible zamindari, and that it was as such an Integrated estate that the pro-perties devolved on Chitti Babu. Ex. P-172 listed these properties into five groups, that is, the pro-perties acquired during the life tune of Viziarama Gajapathy, Anand Gajapathy and Chitti Babu. There were properties acquired by viziarama Gajapathy, inherited by Anand Gajapathy and bequeathed by him under his will to Chitti Babu. Then there were properties acquired by Anand Gajapathy. There were also properties bought by Alak Rajeswari and conveyed by her to Anand Gajapathy under her two deeds of settlement. There were a few acquisitions during the life-time of Chitti Babu himself.

29. The recitals of Anand Gajapathy's will should suffice to repel the extreme contention put forward by Mr. Raghavan, that all the immovable properties of which Anand Gajathy died possessed were incorporated by that very will with the impartible estate.

X X X X

30. My conclusions on this aspect of the case are as follows: The estate was impartible by cus-tom in the hands of Viziarama Gajapathy and Anand Gajapathy, and they had the power to incorporate. None of the holders of the estate subsequent to 1897 had any power to effect any incorporation. When the estate became Impartible again under Act II of 1904, it was the estate with its accretions as it stood in 1897 that became impartible by statute. Whether any given piece of property was incorporated with the zamindari prior to 1897 is a question of fact to be decided on the basis of the evidence on record. The burden of proving such incorporation lay upon the plaintiff.

31. Effect of the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948'. With reference to the buildings and private lands within the ambit of the zamindarl of Vizia-nagaram and included in the list of 106 items, partition of which was claimed in these proceedings, one of the questions for consideration is, how did the provisions of the Abolition Act affect the par-tibility or otherwise of these items.

32. Section 12 of the Abolition Act concludes, in my opinion, the rights of the parties, the plaintiff and the first defendant, in the agricultural lands. The only question that has to be decided under issues, 9, 10, 11, and 12 is whether a given piece of property was the private land of the landholder, that is, whether it had been incorporated with the zamin prior to the Abolition Act or whether those lands were held as the separate properties of the zamindar.

33. The real question that was argued under this head, the effect of the Abolition Act, was the effect of Section 18 on the rights of the parties, the plaintiff, the first defendant and their mother Rani Vidyanathi, in the buildings situate within the limits or Vizlanagaram Zamindari. The buildings outside the ambit of the Vizianagaram zamindari were not within the scope of the discussion of this question.

34. It is well settled that an impartible estate must be considered as joint property of the family |for purposes of succession. The principle laid down in -- 'Balinath Prasad Singh v. Tej Bali Singh', AIR 1921 PC 62 (M) was reaffirmed In . The discussion at p. 222 makes the limitations of such ownership quite clear. Their Lordships observed that 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 bythe head of the family except for necessity; (3)the right of maintenance and (4) the right ofsurvivorship. Their Lordships further observedthat the first three rights could not be claimed bythe members of the Joint family, and concludedthat, though the other rights which a co-parceneracquires by birth in Joint family property notlonger exist, the birth rights of the senior member to take by survivorship still remains. It is only to the limited extent that the joint familyis the 'owner' of an impartible estate. No doubt,these observations were made with reference toan estate impartible by custom but in this respectthe impartiality Imposed by statute, Act II of1904 on Vizianagaram leaves that estate in thesame position.

The family, for purposes of succession, consisted of Chitti Babu and his two sons till Chitti Babu died in 1922. The reversioners, that is, the other members of the Joint family of which Anand Gajapathy had been a member, renounced their claims of succession to the zamindari after the compromise of the suit in 1916. Alak Narayan died in 1937. His brother Dr. Vijaya Anand, who made his claim to a share in the partible, properties in 1935, executed a deed of release in 1944. Thereafter, with reference to the properties of the Joint family other than the impartible estate, the family consisted of the plaintiff, his brother the first defendant and their mother Rani Vidyavathi.

35. As pointed out earlier, for the limited purpose of succession, the family included not only the plaintiff and the first defendant but also Dr. Vijaya Anand and his sons. Even that right disappeared when the estate of Vizianagaram, the hitherto impartible estate, was notified under the Abolition Act and taken over by the Government. The rights of the landholder and those of the members of the joint family who but for the Abolition Act would have been entitled to the rights of succession and maintenance, could be regulated thereafter only by the Abolition Act.

The learned Advocate General rightly pointed out that the Abolition Act has a complete Code both with reference to the rights taken away and to the rights it conferred. Sections 12 and 47 of the Abolition Act regulated the interests of the members of the family in the lands, which for purposes of convenience can be comprehensively labelled private lands. The rights and liabilities of those, who owned the buildings within the ambit of the estate abolished under the provisions of the Abolition Act were declared by Section 18 of that Act. Section 45 regulated the apportionment of the compensat'on determined under the provisions of Section 27 of that Act. The validity and the scope of Section 45 were explained in the Bobbili case, -- 'Janardhana Krishna Ranga Rao v. State of Madras', : AIR1953Mad185 (N).

It should be obvious-that the landholder of Section 12 and Section 18 and the principal landholder of Section 45 of the Abolition Act indicate with reference to the impartible estate of Vizianagaram the same person, the plaintiff. The concept of estate also should be the same in all these three sections.

Despite the repeal of the Impartible Estates Act, Act II of 1904, by Section 66 (1) of the Abolition Act, and the abolition of the estate as such governed by the Estates Land Act, with effect from the notified date, the concept of estate continued for purposes of Sections 12, 18, and 45 of the Abolition Act, each of which could be given effect to only after the notified date. The learned Advocate General was therefore well-founded in his contention, that the concept of the estate is really a geographical one, an area lying within a known geographical ambit.

That concept need not be quite identical with that of the estate as defined by the Estates Land Act, or with the impartible estate, succession to which was regulated by the Impartible Estates Act or by Custom as part of the personal (Hindu) Law applicable to the holder of that impartible estate. This should have an important bearing on the question of the Impartiality or otherwise of immovable properties outside the ambit of the Vizianagaram zamindari, but which in law could be viewed as part of that impartible estate for purposes of devolution on a 'single heir.

36. Was the plaintiff the landholder of the impartible estate of Vizianagaram within the meaning of Sections 12 and 18 of the Abolition Act before the notified date, is the next question. Section 2(1) of the Abolition Act ran:

'All expressions defined in the Estates Land Act shall have the same respective meanings as in that Act with the modifications, if any, made by this Act.'

Section 3(5) of the Estates Land Act defined landholder:

'A landholder means a person owning an estate or part thereof and Includes even person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title or of any order of a competent court or of any provision of law.'

Section 2(8) of the Abolition Act rah:

'Landholder Includes (1) a Joint Hindu family, where the right to collect rents of the whole or any portion of the estate vests in such family; and (ii) a darmila inamdar.'

These were definitions which provided for both impartible estates and the other estates, succession to which was governed by the ordinary laws of succession.

Ownership is the primary test to be satisfied before Section 3(5) of the Estates Land Act could apply. But Section 3(5) also included in the concept of landholder, persons entitled to collect rents otherwise than as full owner. Even that test was not satisfied by the joint family, that Is, the larger unit consisting of the plaintiff, the first defendant. Dr. Vijaya Anand and his sons, in relation to the impartible estate of 'Vizianagaram. No one other than the plaintiff had the right to collect rents. I have already referred to the scope of the joint family's ownership of impartible estate as explained in . The joint family could not claim all the incidents of ownership. It was only for purposes of succession that the impartible estate continued to be the property of the Joint family. Such a limited right is not in my opinion enough to satisfy the test of ownership prescribed by Section 3(5) of the Estates Land Act.

Whether that view itself is correct or hot maybe of little consequence in deciding the questionat issue, viz., was the plaintiff the landholderwithin the meaning of Sections 12 and 18 of theAbolition Act, or was the joint family the landholder. Section 2(8) of the Abolition Act itselfanswers this question. Since the joint family hadnot the right, to collect rent or any portion thereof, it could not claim to be a landholder evenwhen the definition in Section 2(8) of the Abolition Act is read with Section 3(5) of the Ma-ras Estates Land Act under the provisions of Section 2(1) of the Abolition Act. I hold that theplaintiff -was the landholder of the Vizianagaramestate within the meaning of Sections 12 and 18of the Abolition Act. He was the principal landholder of the Vizianagaram estate within themeaning of Section 45 of the Abolition Act. Sec-tion 2(12) of the Abolition Act should make thatclear.

'Principal landholder means the person who held the estate immediately before the notified date; and .... (b) in the case of an impartible estate, means the person entitled to the possession of such estate immediately before that date.'

37. While Sub-sections (1), (2) and (3) of Section 18 of the Abolition Act referred to buildings which had vested in the landholder before the notified date, Sub-section (4) provided for the persons who owned the other buildings before the notified date. Section 18(4) ran:

'Every building other than a building referred to in Sub-sections (1), (2) and (3) shall with effect on and from the notified date, vest in the person who owned it immediately before that date; but the Government shall be entitled....

(i) In every case to levy the appropriate assessment thereon; and

(ii) in the case of a building which vesta in a person other than a landholder, also the payments which such person was liable immediately before the notified date to make to any landholder in respect thereof, whether periodically or not and whether by way of rent or otherwise, in so far as such payments, may accrue due oh or after the notified date.'

38. Section 18(4) did not effect any statutorychange in the ownership of the buildings otherthan those that came within the scope as subsections (1), (2) and (3) of Section 18 of the Abolition Act; whoever owned a building before, continued to own it after the notified date. Theonly statutory change was that prescribed by subsection (5) of Section 18 of the Abolition Act withreference to the sites on which the buildings stood.What were the buildings within the ambit of theVizianagaram zamindari of which the plaintiffwas the owner within the meaning of Section 18(4)of the Abolition Act is the question.

39. The plaintiff was the holder of the impartible estate of Vizianagaram, which included the Immovable properties inclusive of the buildings, that had been incorporated with it and made part of it. The plaintiff was the landholder. In dealing with, Section 3(5) of the Estates Land Act with which Section 2(8) of the Abolition Act has to be read, I pointed out that the test Section 3 (5) of the Estates Land Act laid down was ownership, and that from that conception of ownership the joint family of which the holder of the Impartible estate was a member was excluded by Section 2(8) of the Abolition Act. The holder of the Impartible estate as the landholder is the owner of that estate for all purposes other than succession to that estate. The plaintiff was the owner within the meaning of Section 18(4) of the Abolition Act of the buildings within the ambit of the zamindari which were an integral part of the zamindari before the notified date, including properties that had been incorporated with the impartible estate. The learned Advocate General was right in his contention, that the concept of ownership was to that extent identical with that of the landholder in Sub-sections (1), (2) and (3) of Section 18 of the Abolition Act.

40. Section 18 of the Abolition Act is comprehensive in its scope. It deals with all the buildings within the ambit of a eamindarl, whoever could claim rights in those buildings. Sub-sections (1) and (2) vested in the Government the buildings specified therein. Sub-section (3) was ancillary to Sub-sections (1) and (2). All these three sub-sections dealt with the buildings that had belonged to the landholder immediately before the notified date. Sub-section (4) provided that all the buildings other than those covered by Sub-sections (1), (2) and (3) of Section is of the Abolition Act.

As the learned Advocate General pointed out, sub-s. (4) provided for two classes of buildings (1) those owned by the landholder immediately before the notified date, and (2) those owned by the others. The first class, in my opinion, Includes only the buildings owned by the plaintiff 'qua' landholder. Into the second class of ownership should fall the buildings owned by the plaintiff In his capacity other than that of a landholder. Every piece of property held by a person who was also a holder of an impartible estate did not become part of that impartible estate. The holder of an impartible estate could own other properties either as his separate properties or as properties of the joint family of which he was the 'kartha'. If the properties had belonged to the Joint family of which the plaintiff was the 'kartha' before the notified date, those buildings vested in the joint family after the notified date under Sub-section (4) of Section 18 of the Abolition Act.

As I have stated, Section 18(4) did not purport to effect any change in the ownership before Or after the notified date. In my opinion, subsection (4) could be read as follows:

'Every building other than a building referred to in Sub-sections CD, (2) and (3) shall with effect on and from the notified date vest (a) in the landholder if he owned it immediately before that date, and (b) in the owner, if he owned it immediately before that date.'

41. Mr. Rajagopala Ayyangar urged that since the plaintiff was the holder of the impartible estate of Vizianagaram only as a member of the joint family, all the buildings other than those covered by Sub-sections (1), (2) and (3) of Section 18 of the Abolition Act should be treated as Owned by that Joint family, and he contended that Section 18(4) of the Abolition Act vested those buildings in that joint family. I am unable to accept this contention.

I have already pointed out that for the purpose of succession to the impartible estate, the joint family was the larger unit and included Dr. Vijaya Anand and his sons. For purposes of paVtition of the properties involved in this suit, the joint family consisted only of the plaintiff, the first defendant and their mother, the mother being a sharer, though she may not be a coparcener in the strict sense of the term. I have also pointed out the limitations of the concept of ownership of Impartible estate where it was claimed by a Joint family. Of any building that was part of the impartible estate before the notified date, the plaintiff as the landholder was the owner and not the Joint family of which he was a member, either the larger unit, the joint family for purposes of succession, or the smaller unit, the Joint family for purposes of partition of the partible properties.

42. Mr. Rajagopala Ayyangar next urged that, in any event, the effect of the repeal of the Impartible Estates Act of 1904' by Section 66(1) of the Abolition Act was to revive the partibility of the entire estate, of Vizianagaram except for purposes of the Abolition Act. Mr. Rajagopala Ayyangar confined the purposes of the Abolition Act to the compensation for the estate payable under the terms of Section 45 of the Abolition Act. Section 66(1) ran:

'with effect on and from the notified date--'the Madras Impartible Estates Act, 1904, shall be deemed to have been repealed in its application to the estate, if the estate had been governed by the Act immediately before that date.'

43. Mr. Rajagopala Ayyangar's contention was that the effect of this repeal by Section 66(1)] of the Abolition Act was as if the Act of 1904 never existed at all; it restored the position, in the case of the Vizianagaram estate, it occupied between 1897 and 1902 when nothing was Impartible in the hands of Chitti Babu. It was on this basis that Mr. Rajagopala Ayyangar contended that defendants 1 and 2 were entitled to their share of whatever property did not vest in the Government under Section 3 and under Sub-sections (1), (2) and (3) of Section 18 of the Abolition Act. The learned Advocate General pointed out that in construing the scope of the repeal effected by Section 66(1) of the Abolition Act, it would be useful to refer to Section 3(a) of the Abolition Act which repealed certain other enactments. The repeal in both cases was confined to the repealed Act in Its application to the estate. It was not a case of an unqualified repeal.

44. The effect of Section 68(1) In my opinion is that the Impartible Estates Act of 1904 would cease to apply to that portion of the Vizinagaram estate which vested in the Government under Section 3 of the Abolition Act, rights In which thereafter, that is, after the notified date, were regulated by the several provisions Including Section 18 of the Abolition Act. I see no basis for limiting the effect only to Section 43 of the Abolition Act.

45. Besides, Section 66(1) repealed the Impartible Estates Act only with effect on and from the notified date. For the vesting effected by Section 18(4) of the Abolition Act, the test is Ownership before the notified date. There could be no question of the repeal of the Impartible Estates Act taking effect before the notified date. If before the notified date the plaintiff 'qua' landholder owned any ot the buildings, Section 18(4) of the Abolition Act vested the ownership of those buildings in the plaintiff. That was in no way affected by Section 66(1) of the Abolition Act.

As I have already pointed out, the Abolition Act is a complete Code in itself both with reference to the rights it took away and the rights it conferred. I am unable therefore to see any real basis for the contention of Mr. Rajagopala Ayyangar, that the effect of Section 66(1) was to make all the buildings other than those that vested in the Government under Sub-sections (1), (2) and (3) of Section 18 of the Abolition Act partible between the plaintiff, the first defendant and their mother, Rani Vidyapathi.

46. My conclusion on the question of the effect of the Abolition Act on the rights of the parties to the 106 items or immovable properties, partition of which is sought in these proceedings, is as follows: Whatever was an integral part of the impartible zamlndari or Vizianagaram before the notified date within the meaning of the Abolition Act, inclusive of the lands and buildings that had been lawfully incorporated with that impartible zamindari, would be governed by the provisions of the Abolition Act. The apportionment of lands should be under Sections 12 and 47 of the Abolition Act. The buildings Incorporated with the zamlndari prior to the Abolition Act should vest in the plaintiff after the notified date, and they are therefore not partible. As I stated in discussing the question of incorporation, which were lands and buildings so incorporated with the zamlndari is a question of fact, which I reserve for discussion under the respective issues.


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