M.M. Ismail, J.
1. The question that arises for decision in this appeal is, whether the buildings situate in an impartible estate which has been notified under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948) hereinafter referred to as the Abolition Act, vesting in the landholder under the provisions of Section 18 (4) of the Abolition Act continued to retain their character of impartiality or not.
2. Defendants 20 to 25 in O.S. No. 26 of 1956 on the file of the Court of the Subordinate Judge of Tirunelveli are the appellants herein. The suit itself Was instituted as an interpleader one by the Court of Wards, Madras represented by the Estate Collector of Sivagiri Estate. The last principal holder of the estate, one V.R.P. Chinnathambiar, Zamindar of Sivagiri, applied to the Court of Wards, for the estate being taken over and managed by it, as it Was in an involved condition. The Court of Wards took over the management of the estate in 1941 under the provisions of the Court of Wards Act I of 1902 and continued in management till the estate Was taken over by the State Government on 3rd January, 1951 under the provisions of the Abolition Act. Defendants 1 and 2 are the widows of the last landholder, who died on 16th August, 1955. Defendants 3 and 4 are his sons by the first wife, namely, the first defendant. Defendants 5 and 6 are the minor sons of the landholder by his second wife, the second defendant. The third defendant is the seniormost male member of the family. The third defendant claimed the entire properties in himself as the seniormost male member and heir of the last landholder. The second defendant also claimed the entire properties on behalf of her minor son, the sixth defendant, on the ground that he alone was an undivided member of the family of the last landholder. Defendants 2 and 3 by their petitions dated 31st July, 1955 and 23rd September, 1955, respectively addressed to the Court of Wards claimed the entire estate as theirs to the exclusion of others. Since the dispute involved the right of succession to the estate and a division of the properties among the defendants who were setting up rival claims, the Court of Wards filed the interpleader suit referred to above impleading all the parties who claimed any right to or interest in the properties. Among the properties described in the schedules, Schedule II to the plaint Comprises buildings. With regard to the said buildings, the third defendant, the seniormost male member in the family put forward the contention that he alone Was exclusively entitled to those properties, and the other members of the Zamindar's family were not entitled to claim any share in the same as members of the joint family. The third defendant had alienated some items of the properties in the second schedule to the plaint in favour of the 18th defendant who had also purchased certain other items in that Schedule in court-auction sale and consequently the 18th defendant himself put forward the same contentions as those put forward by the third defendant. During the pendency of the suit, the 18th defendant died and the present appellants were brought on record as the legal representatives of the deceased 18th defendant. In their Written statement, they reiterated the contentions put forward by defendants 3 and 18 as to the buildings which Were described in the second schedule to the plaint as belonging exclusively to the third defendants and he being competent to dispose of the same and the other members of the family not having any right to a share therein. In the suit itself it was decided at an earlier stage that the civil Court had no jurisdiction to deal with the lands which were originally included in the plaint but it had jurisdiction to deal only with the buildings described in Schedule II to the plaint. Consequently the suit came to be disposed of by the learned Additional Subordinate Judge, Tirunelveli on 29th March, 1955, with reference to the said buildings alone. The question that he had to consider was, whether the said buildings continued to be impartible and therefore, survived, on the death of the last landholder on 16th August, 1955, to the third defendant, who was the seniormost male member of the family and the third defendant was therefore competent to dispose of the same and the other members of the family had no share in them. The learned Additional Subordinate Judge concluded:
the buildings falling under schedule 2 of the plaint were granted under the provisions of Section 18 (4) of the Abolition Act only to the father of defendants 3 to 6 and husband of defendants 1 and 2, who was the last zamindar of Sivagiri and it was granted personally to him and the abolition contemplated by the Abolition Act was not merely of the geographical estate or What was known as the Zamindari, but also of the impartibility. The third defendant and his alienees the 18th defendant or defendants 20 to 25 are not entitled to claim that the 3rd defendant alone is entitled to take the property and not defendants 1, 2, 4 to 6 and 13 and 14 (being sons of the last landholder through his permanently kept concubine) . Defendants 1 and 2 being the widows of the last holder of the estate and defendants 4 to 6 and 13 and 14 also being the sons they must also be held to be entitled to have succeeded to the estate.
In view of this conclusion, the learned Additional Subordinate Judge passed a decree declaring 'that defendants 1 to 6, 13 and 14 are entitled to partition and separate possession of their respective shares in the plaint schedule II properties viz., defendants 1, 2 ,13 and 14 each to 1/12 share and defendants 3 to 6 each 'to 1/6 share 'and decreeing 'that the plaint II schedule properties set out hereunder be divided by metes and bounds, according to good and bad soil and the respective sharers be allotted their shares'. The decree farther provided, 'that, While making a division the alienating coparcener's share as far as possible be allotted to the respective alienees or such share of the alienating members in each of the items shall be allotted to the alienees''. It is the correctness of the above decree that is challenged before us in the present appeal by defendants 20 to 25.
3. Mr. V. Vedantachari, learned Counsel for the appellants, contends that the Abolition Act does not make any provision for putting an end to the impartible character of the buildings vesting in the landholder under Section 18 (4) of the Abolition Act and therefore the buildings continued to be impartible and on the death of the last landholder they devolved on the seniormost member, namely, the third defendant, who had the competency to deal with the same absolutely. His further contention is that specific provision has been made for dealing with the compensation amount payable in respect of an impartible estate taken over under the Abolition Act in Section 45 (6) and a similar provision has been made with regard to the lands in respect of which a ryotwari patta may be granted to the landholder under Section 12 or Section 14 of the Abolition Act in Section 47 (3), treating the said compensation as well as the lands as if they belonged to the joint Hindu family of the sharers, the said sharers having been enumerated in Section 45 (2) (a) of the Abolition Act as 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, and as if a partition of the said compensation and the lands had been effected among the said sharers on the notified date. But no such provision has been made in respect of buildings vesting in the last landholder under Section 18 (4) of the Abolition Act. He also contends that the repeal of the Madras Impartible Estates Act, 1904 by Section 66 of the Abolition Act in its application to an estate taken over under the Abolition Act will not have the effect of putting an end to the impartible character of such buildings. On these grounds the case of the appellants is that the suit buildings survived exclusively to the third defendant herein and therefore he was competent to alienate the same in favour of the 18th defendant.
4. As against this, Mr. T.R. Mani, learned Counsel appearing for the contesting respondents 2, 5 and 6 has contended that with the repeal of the Madras Impartible Estates Act, 1904 and the abolition of the estate under the Abolition Act, the impartible character of the entire estate came to an end and it did not survive in respect of the suit buildings alone. His further contention is that the impartiality was a consequence of a custom which had merged in the Madras Impartible Estates Act, 1904 and as soon as that Act Was repealed, the anterior custom Was not revived and therefore the impartibility had come to an end. Mr. Mani's alternative contention is that on the notification of the estate under the provisions of the Abolition Act, the entire estate including the buildings vested in the Government that under Section 18 (4) of the Abolition Act, the last landholder obtained a fresh title to the buildings and such fresh title is not subject to the incidents of impartibility.
5. The question involved requires the consideration of the character of an impartible estate as such and also the consequence of certain provisions of the Madras Impartible Estates Act, 1904, as well as the Abolition Act.
6. Mayne's Treatise on Hindu Law and Usage (Eleventh Edition) at page 839 states:
Liability to partition is an ordinary feature of joint family property, but it must not be supposed that joint property and partible property are mutually convertible terms. If it were so, an impartible estate could never be joint property. There are estates which by special law or custom descend to one member of the family (generally the eldest) to the exclusion of the other members and which are impartible, though they are joint property, in the eye of the law, belonging equally to the other members; and their rights are hedged in by a number of restrictions or limitations.
The reverse however is the case.
The commonest instances of this class are the ancient zamindaris or estates which originally were either in the nature of a Raj or principality or Were feudatory estates held on military service tenure such as the palayams of South India, or royal grants of revenue for services, such as Jagirs or Saranjams in Bombay. So also are impartible those properties which under special family custom or by an express sanad or grant from the Grown are descendible to a single heir.
7. The characteristics of an impartible estate with reference to an undivided Hindufamily have been the subject-matter of several decisions. As a result of the decisions of the Judicial Committee in Rani Sartaj Kuari v. Deoraj Kuari (1887) 15 I.A. 51 : I.L.R. 10 All 272, the first and the second Pittapur cases, Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards and Venkata Kumara Mahipali Surya Rao (1899) 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. (Supp.) 1 and Raja Rama Rao v. Raja of Pittapur (1918) 45 I.A. 148 : I.L.R. 41 Mad. 778 : 35 M.L.J. 392 : A.I.R. 1918 P.C. 81, it Was supposed that an impartible estate was in no sense joint family property. But the decisions of the Privy Council in Baijnath Prasad Singh v. Tej Bali Singh (1921) 48 I.A. 195 : 40 M.L.J. 387 : I.L.R. 43 All. 228 : A.I.R. 1921 P.C. 62, Konammal v. Annadana (1928) 55 I.A. 114 : I.L.R. 51 Mad. 189 : 54 M.L.J. 504, Shiba Prasad Singh v. Prayag Kumari Debee (1932) 59 I.A. 331 : 63 M.L.J. 196, and Collector of Gorakpur v. Ram Sundar Mal have now established that an ancestral impartible estate is joint family property notwithstanding the fact that there is neither a right to partition nor a right to restrain any alienation. Even though the custom of impartibility affects the ordinary incidents of joint family property, it was firmly established that except to the extent to which the general law is superseded by custom, it is the general law which regulates such property all beyond the custom. Since the decision of the Privy Council in Shibaprasad Singh v. Prayag Kumari Debee (1932) 59 I.A. 331 : 63 M.L.J. 196, which has elaborately considered the entire law and the ealier decisions, has been approved by the Supreme Court, it is not necessary to go into the details of the other decisions. In the said decision the Judicial Committee observed:
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 maintenance; and (4) the right of survivorship. The first of these lights 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 impartibility, as laid down in Sartaj Kuaris' case (1887) 15 I.A. 51 : I.L.R. 10 All 272, and the first Pittapur case (1899) 26 I.A. 83 : I.L.R. 22 Mad. 383, and so also the third as held in the second Pittapur case (1918)45 I.A. 148 : I.L.R. 41 Mad. 778 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 (1921) 48 I.A. 195 : 40 M.L.J. 387, To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshra law applicable to such property. Though the other rights which a coparcener acquires by birth in the joint family property no longer exist, the birth-right of the senior member to take by survivorship still remains. Nor is this right a mere spes succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a light which is capable of being renounced and surrendered.
However, the Judicial Committee must be deemed to have revised its dictum that the right to maintenance is incompatible with the custom of impartibility, in view of its decision in Collector of Gorakpur v. Ram Sundar Mal (1934) 61 I.A. 286 : 67 M.L.J. 274, referred to already. In that decision, the Privy Council pointed out;
(1) The decisions of the Board is Sartaj Kuari v. Deoraj Kuari (1887) 15 I.A. 51 : I.L.R. 10 All 272, and the first Pittapur case (1899) 26 I.A. 83 : I.L.R. 22 Mad. 383, appeared to be destructive of the doctrine that an impartible zamindari could be in any sense joint family property. (2) This view apparently implied in these cases was definitely negatived by Lord Dunedin when delivering the judgment of the Board in 1921 in Baijnath Prasad Singh's case (1921) 48 I.A. 195 : 40 M.L.J. 387. (3) 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 Challapalli case (1900) 27 I.A. 151 : I.L.R. 24 Mad. 147: 10 M.L.J. 294, which regarded their right to maintenance, however limited out of an impartible estate as being founded upon the joint ownership of the junior members 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.
The Supreme Curt in Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur v. Sri Pushpavathi Visweswara Gajapathiraj Rajkumar of Vizianagaram and Ors. : 2SCR403 , stated:
Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi , it must be taken to be well-settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family.
After the above statement, the Supreme Court referred to the law as laid down by the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi , which portion we have already extracted.
8. Against the background of these characteristics of an impartible estate, one question that came to be considered Was, whether the holder of an impartible estate has unlimited power of alienation. In Rani Sartaj Kuari v. Deoraj Kuari (1887) 15 I.A. 51 I.L.R. 10 All 272, referred to already, the holder of an impartible estate made a gift of several villages to his junior wife and his son questioned the validity of the alienation. The Judicial Committee, upholding the gift, observed:
The property in the paternal or ancestral estate acquired by birth under the Mitakshara law is, in their Lordships' opinion, so connected with the right to a partition, that it does not exist where there is no right to it.
This decision Was followed in the first Pittapur case, where the right of the holder to alienate by will was upheld. As a result of these decisions, it was settled that the holder of an impartible estate could alienate it by gift inter vivos or by will although the family is undivided, unless by a family custom or by the condition of the tenure, he was precluded from doing so.
9. The decisions of the Courts on this aspect created a difficult situation in the South, where it Was always thought that the holder of an impartible estate for the time being had no unlimited power of alienation. In order to remedy the situation created by the decisions of Courts, steps had to be taken by the Legislature. The first piece of legislation was the Madras Impartible Estates Act, (II of 1902), which received the assent of the Governor on 6th June, 1902 and that of the Viceroy and Governor-General on 1st July, 1902. The statement of objects and reasons appended to the Bill which was enacted as the Madras Impartible Estates Act, 1902, stated:
The provisions of the Bill are directed towards the preservation of the ancient zamindaris of this Presidency. The zamindaris that were in existence at the time of the permanent settlement were generally either military fiefs or revenue farms which had become virtually heritable in the hands of Official sanad-holders from native Governments. From the nature of their tenure, these estates were treated as impartible, at least without the consent of the ruling power; and it was long believed that they continued impartible, even after the permanent settlement and that they Were held under the law of primogeniture. But the Privy Council, in their decisions in the Nuzvid case I.L.R. (1878) Mad. 128 : 71 I.A. 38, and the Devarakota case (1890) Mad. 406 : 17 I.A. 1341, declared that the rule of primogeniture and impartibility does not necessarily attach to any estate, however ancient, but is only the result of family custom liable to be annulled with the joint consent of the members of the family. It was also believed that the holders, for the time being, of impartible estates possessed only a life interest and that their powers of alienation Were merely those of the manager of joint Hindu family holding property in Coparcenary. This view must now, however, be regarded as erroneous in consequence of the decision in Sartaj Kuari v. Deoraj Kuari I.L.R. (1888) All. 272 : 15 I.A. 51, in which the Privy Council in effect declared that the right of coparceners in a joint estate was so connected with the right to demand partition that the former right did not exist independently of the latter; that in the case of an impartible estate descending to a single heir by the law of primogeniture, the natural presumption was that the holder for the time being was absolute owner of the property and could dispose of it as he pleased; but that this presumption might be rebutted by proving a custom of inalienability or that the tenure of the property was inconsistent with the free power of alienation by the holder; that the onus of proving such custom rested on the person averring it; and that to prove it he must show not only that there never had been any alienation beyond the powers of the manager of a joint Hindu family, but also that the owner had refrained from alienating in circumstances where the right would probably have been exercised but for the existence of the custom. This decision was followed by the Madras High Court in the Kangundi case I.L.R. (1890) Mad. 197, and in the Pithapur case I.L.R. (1899) Mad. 382 since confirmed by the Privy Council, in Which no special custom of inalienability having been ' proved the right of the holders to alienate the estate at will Was upheld. Having regard to the great difficulties which these judgments create by requiring positive evidence of the nature above indicated in order to establish in any particular case the existence of the custom of inalienability, the probable results will be protracted and ruinous litigation, and in time the dismemberment of the ancient estates in this presidency and the degradation and decay of the mature landed aristocracy.
2. The Bill therefore declares that the estates entered in the schedule thereto are impartible. The schedule includes only those permanently settled estates which have been in existence from before the date of the Permanent Settlement Regulation (XXV of 1802) and have been declared by judicial decisions to be impartible or are locally considered by ancient custom to be so, and have, as a fact, descended without partition since that date. In respect of the estates so included the Bill provides that the powers of alienation of the. holder for the time being should be limited to those possessed in regard to ancestral property by the managing member of a joint Hindu family governed by the ordinary law of succession. Clause 4 of the Bill saves from its operation portions of the scheduled estates which have already been permanently alienated or which may hereafter be permanently alienated either by the execution of decrees for debts incurred before the Bill becomes law or by the exercise of the restricted powers of alienation recognised in the Bill. Clause 5 is intended to provide for the case where a scheduled estate may be found to be encumbered to such an extent that it is likely to be so reduced by sales in execution of decrees as to render its retention in the schedule inexpedient.
These objects were given effect to by the provisions of the said Act which came into force on 2nd June, 1902, and continued in force till 1st June, 1903. Section 2 of the Act stated that the estates included in the schedule there to annexed shall be deemed to be impartible and further provided that in the case of any estate not included in the schedule if it be thereafter judicially declared that such estate is impartible, such estate shall thereupon be deemed to have been, included in the schedule. Section 3 imposed restriction on alienations by proprietors consistent with the object referred to above. By the subsequent enactment of 1903, the said Act Was continued till 31st March, 1904. Thereafter, the Madras Impartible Estates Act (II of 1904) Was enacted as a permanent measure. Section 3 of this Act stated that the estates included in the schedule to that Act shall be deemed to be impartible estates, impartible estate having been defined as an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India. Section 4 imposed restriction on alienations of impartible estate. Sub-section (1) there of provided that the proprietor of an impartible estate shall be incapable of alienating or binding by his debts, such estate or any part thereof beyond his own lifetime unless the alienation shall be made, or the debt incurred, under circumstances which would entitle the managing member of a joint Hindu family not being the father or grandfather of the other coparceners, to make an alienation of the joint property, or incur a debt, binding on the shares of the other coparceners independently of their consent. The effect of this provision is to bring in the impartible estate on a par With other joint family property With reference to the power of alienation of the manager of the family. Sub-section (2) of Section 4 enumerated certain permissible alienations. Section 9 and the subsequent sections dealt With the right of maintenance of certain members of the family out of the impartible estate and the amount of maintenance. Section 12 expressly provided that nothing contained in the Act shall affect the right to maintenance out of an impartible estate and the income thereof, of any other relations of the proprietor or any previous proprietor under any law or custom for the time being in force. Thus, it will be seen that this Act dealt with only two topics in relation to the impartible estate, namely: (1) power of alienation of the holder of an impartible estate; and (2) right to maintenance of certain named members of the family mentioned in Section 9. With regard to these legislations the Supreme Court in Mizra Raja Pushpavathi Vijayaram Gajapathi Raj Marine Sultan Bahadur v. Sri Pushpavathi Visweswar Gajapatiraj Rajkumar of Vizianagaram and Ors. : 2SCR403 , referred to already, observed:
Soon after these decisions were pronounced by the Privy Council, the Madras Legislature stepped in because these decisions very rudely disturbed the view held in Madras about the limitations on the powers of holders of impartible estates in the matter of making alienations of the said estates. That led to the passing of the Madras Impartible Estates Acts II of 1902, II of 1903 and II of 1904.. The Legislature took the precaution of making necessary enquiries in regard to impartible estates within the State and made what the Legislature thought-were necessary provisions in respect of the terms and conditions on Which the said estates Were held. It may be stated at this stage that the result of the relevant provisions of the Madras Acts is that the question of inalienability of impartible estates does not depend in Madras on the family custom, but is expressly provided for by the relevant provisions of the statute.
10. Now, we shall consider the relevant provisions of the Abolition Act. That Act applies to all estates as defined in Section 3 (2) of the Madras Estates Land Act, 1908, except inam villages which became estates by virtue of the Madras Estates Land 3rd Amendment Act, 1936, without making any distinction between an impartible estate and a partible estate. Section 2 (C) of the Abolition Act defines 'impartible estate' as an estate governed immediately before the notified date, by the Madras Impartible Estates Act, 1904. Section 3 dealt With the effect of notification of an estate under the Act. Section 3 (b) states:
With effect on and from the notified date and save as otherwise expressly provided in this Act:the entire estate (including all communal lands and porambokes; other non-ryoti lands; Waste lands; pasture lands; lanka lands; forests; mines and minerals; quarries, rivers and streams; tanks and irrigation Works; fisheries and ferries), shall stand transferred to the Government and Vest in them, free of all encumbrances and the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1865, and all other enactments applicable to ryotwari areas shall apply to the estate.
Section 3 (c) states:
With effect on and from the notified date and save as otherwise expressly provided in this Act:all fights and interests created in or over the estate before the notified date by the principal or any other landholder shall as against the Government cease and determine.
Section 3 (e) states:
With effect on and from the notified date and save as otherwise expressly provided in this Act:the principal or any other landholder and any other person, Whose rights stand transferred under Clause (6) or cease and determine under Clause (c), shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act.
As far as the landholder is concerned, he obtained principally two rights under this statute. One Was a right to a ryotwari patta in respect of his private lands under Sections 12 to 14 of that Act. The other was a right to compensation as provided for in that Act. In addition to these two rights, Section 18 dealt With the vesting of buildings situated in an estate and that section is as follows:
18 (1) Every building situated within the limits of an estate, which immediately before the notified date, belonged to any landholder thereof and Was then being used by him as an office in connexion With its administration and for no other purpose, shall vest in the Government, free of all encumbrances, With effect on and from the notified date
(2) Every building so situated Which immediately before the notified date, belonged to any such landholder and the whole or principal part whereof Was then in the occupation of any religious, educational or charitable institution shall also vest in the Government, free of all encumbrances, with effect on and from the notified date:
Provided that when such institution ceases to exist, the building shall revert to such landholder or if he is dead, to his heirs or legal representatives.
(3) Where any building so situated--
(a) which belonged to any such landholder on the 1st day of July, 1947 ; and;
(b) (i) which on that date Was being used by him as an office in connexion with the administration of the estate, and for no other purpose, or,
(ii) the Whole or principal part whereof was on that date in the occupation of any religious, educational or charitable institution has, after the 1st day of July, 1947 and before the notified date, been sold or made a gift of by the landholder or ceased to be used by him as an office as aforesaid, or ceased to be in the occupation of such institution, the Value of the building shall be assessed by the Tribunal in such manner as may be prescribed; and the Tribunal shall pay. to the Government such Value from out of the compensation deposited in its office under Section 41, Sub-section (1).
(4) 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 for each fasli year commencing with the fasli year in which the estate is notified.
(i) in every case to levy the appropriate assessment thereon; and
(ii) in the case of a building which vests in a person other than a landholder, also to 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 on or after the notified date.
(5) In this section, 'building' includes the site on which it stands and any adjacent premises occupied as an appurtenance thereto.
(6) If any question arises whether any building or land falls or does not fall Within the scope of Sub-sections (1), (2), (3), (4) or (5),it shall be referred to the Government whose decision shall be final and not be liable to be questioned in any Court of law.
(7) Any person holding a mortgage or charge on any building referred to in Sub-section (1) or Sub-section (2) shall, for the purpose of Section 42, be a secured creditor and be entitled to priority over any person holding a mortgage or charge subsequently created by the landholder over any part of the estate.
11. The Supreme Court in Mirza Raja Puskpavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur v. Sri Pushpavatli Visweswar Gajapathiraj Rajkumar of Vizianagaram and Ors. : (1963)IILLJ657SC referred to already, construing Section 18 (4) of the Abolition Act, has stated that it is the landholder or the proprietor, as defined in the earlier Act of 1904, that is, the Madras Impartible Estates Act, 1904, that is contemplated by the expression, 'the person who owned it' in Section 18 (4) of the Abolition Act and therefore it is the principal landholder who is entitled to the building under Section 18 (4) of the Abolition Act and the other members of the family have no right to the same. Having regard to this decision, it can be stated that in addition to the two rights to which a landholder is entitled, as stated already, namely, a right to a ryotwari patta in respect of private lands under Sections 12 to 14 of the Abolition Act and a right to compensation as provided for in the Abolition Act, he is entitled to a third right, namely, a right to the buildings as provided for in Section 18 (4) of the Abolition Act.
12. The question now for consideration is, how these three rights have been dealt with by the Abolition Act in respect of an impartible estate taken over under the said Act. Section 45 of the Abolition Act makes special provisions for the apportionment of compensation in the case of impartible estates. Section 45 (a) of the Abolition Act, which enumerates certain members of the family as sharers, provides that the tribunal constituted under that Act shall determine the aggregate compensation payable to (a) all those sharers, considered as a single group 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. This section also makes a provision for the Tribunal determining the creditors who are lawfully entitled to have their dues paid from and out of the assets of the impartible estate and the amount to which each of them is so entitled and provides that only the remainder of the aggregate compensation shall be divisible among the sharers and the maintenance holders as provided in that section. Sub-section (6) of Section 45 deals with the balance of the compensation after providing for payment to the maintenance holders out of the compensation and provides:
Section 45 (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.
Similar is the provision contained in Section 47 (3) with regard to the lands in respect of which ryotwari pattas are granted under Section 12 or 14 and that section is as follows:
Section 47 (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 subsection(2). shall be divided among the sharers, as if they owned such lands as a joint Hindu family and a partition thereof had been effected among them on the notified date.
Thus it Will be seen that specific provisions have been made for the division of the net compensation amount and the private lands in respect of which a ryotwari patta is granted to the landholder as between the sharers enumerated in the section as if the compensation amount and the lands belonged to a joint Hindu family consisting of them and a partition thereof had been effected among them on the notified date. The contention of Mr. Vedantachari is that but for these special provisions, the compensation as well as the lands would have retained the character of impartibility and it is only because of these special provisions that that character no longer survived; but no such special provision having been made in regard to buildings falling within the scope of Section 18 (4) of the Abolition Act, the impartible character of those buildings, forming part originally of an impartible estate, continues. We are of the opinion that this argument of the learned Counsel is well-founded.
13. In the Special Deputy Collector of Ramnad v. The Rajah of Ramnad I.L.R. (1935) Mad. 442 : 68 M.L.J. 575 : A.I.R. 1935 Mad. 215, where proceedings under the Land Acquisition Act had been taken to acquire a part of an impartible estate, the proceeds had been regarded as money belonging to a person not capable of alienating the lands acquired.
14. In T.B. Ramachandra Rao and Anr. v. A.N.S. Ramachandra Rao and Ors. (1922) 49 I.A. 129 : I.L.R. 45 Mad. 330 : 43 M.L.J. 78, the Judicial Committee referred to the land acquired by the Government for which compensation had been paid as 'a piece of land represented by a sum of money paid into Court', thereby holding that the conversion Would not alter the quality or the nature of the estate.
15. Even in Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Marine Sultan Bahadur v. Sri Pushpavathi Visweswar Gaja-pathiraj Rajkumar of Vizianagaram and Ors. : 2SCR403 , referred to already, the Supreme Court upheld the claim of the landholder to exclusive right to certain pieces of jewellery as constituting regalia.
16. Thus, these decisions will clearly show that but for the special provision contained in Section 45 (6) of the Abolition Act, the balance of the aggregate compensation Would continue to retain the character which originally the estate it represented had. Consequently, it will follow that in the absence of a similar provision With regard to buildings falling Within the scope of Section 18 (4) of the Abolition Act, they retain their original character of impartibility.
17. Mr. T.R. Mani, learned Counsel for the contesting respondents, has repeatedly contended before us that after the abolition of the impartible estate, the concept of impartibility itself came to an end and it cannot attach itself to the buildings alone. We are unable to accept this argument. A Bench of this Court in Sri Ravu Janardhana Krishna Ranga Rao Bahadur v. The State of Madras represented by the Collector of Srikakulam District at Srikakulam and Ors. : AIR1953Mad185 , observed:
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 immovable property and in particular landed property, and that as soon as the estate or a part of it acquired by the Government the compensation amount payable for such acquisition must be deemed to be not impressed With the custom of impartibility.
That was a case in which the younger brother of the Zamindar of Bobbili, the principal landholder, put forward a claim to a half share in the compensation amount remaining after satisfying all the claims of genuine creditors of the estate and the maintenance-holders. The Bench held that he had no such right.
18. Another Bench of this Court in Minor Sangiliveerappa Balasubramanian Pandian alias Kuttiraja and Ors. v. Kannuthayi alias Muthathal Machiyar and Ors. : (1967)2MLJ169 , Which dealt with the very Sivagiri zamin, which is the subject matter of the present appeal, after referring to certain decisions including the one referred to above, observed:
The aforesaid decisions are authorities for the position that the Impartible Estates Act cannot be totally and completely ignored for all purposes, and despite the repeal of the Act by Section 66 (1) of the Abolition of the Estates Act, the concept of the original estate has to be kept in mind for certain purposes.
19. In Sri Rajah Velugoti Kumara Krishna Yachendra Varu and Ors. v. Sri Rajah Velugoti Sarvanga Kumara Krishna Yachendra Varu and Ors. : 3SCR88 , the Supreme Court had occasion to consider the character of a building forming part of an impartible estate, but situate outside the geographical limits of the estate abolished under the Abolition Act. The estate Was Venkatagiri estate. The Supreme Court observed:
Section 2 (2) of the Madras Impartible Estates Act, 1904 (Madras Act II of 1904) defines an 'impartible estate' as 'an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India'. In relation to the Venkatagiri Zamindari the expression 'Estate' in Section 3 (a) of the Abolition Act refers obviously to the Venkatagiri Estate which till then Was subject to the operation of the Madras Permanent Settlement Regulation and the Madras Estates Land Act. In relation to the Venkatagiri Zamindari, Section 66 of the Abolition Act enacts that with effect from the notified date the Madras Impartible Estates Act, 1904, shall be deemed to have been repealed in its application to the Estate. The question arises Whether the Word 'estate' in Section 66 of the Abolition Act denotes the zamindari consisting of properties which stood transferred to the Government under the Abolition Act and properties which are not so transferred, or whether the expression 'estate' refers to only the Venkatagiri Estate which until the notification issued under the Abolition Act took effect was the subject of the Permanent Settlement Regulation and the Madras Estates Land Act. The High Court has given sufficient reasons in support of its view that the Word 'estate' in Section 66 of the Abolition Act denotes only the estate governed by the Permanent Settlement Regulation and the Estates Land Act and not any other part of the impartible zamindari. In other Words the Abolition Act has no application to properties which are outside territorial limits of the Venkatagiri estate. The result, therefore, is that in relation to Venkatagiri Zamindari the Madras Impartible Estates Act has been repealed so far as the Act applied to the Estate which by operation of Section 3 (b) of the Abolition Act has got transferred and became vested in the State Government. In' relation to other properties which have not become so vested in the Government the Madras Impartible Estates Act, 1904 continues to be in force....It is true that the buildings which are outside the geographical limits of the Venkatagiri Zamindari cannot be brought Within the definition of the estate as defined in the Estates Lands Act and the Abolition Act cannot therefore be made applicable to such buildings. But the buildings have acquired the character of impartibility as a result of incorporation Within the parent estate and that character cannot be lost unless the statute intervenes.
20. Mr. Mani contends that it will be anomalous when the impartibility of the estate as such is lost, that one or more buildings forming part of that estate continue to remain impartible. We are unable to appreciate this argument. If there is no anomaly in a building situate outside the geographical limits of an estate of which it formed part abolished under the Abolition Act, continuing to have the character' of impartibility, we are unable to see any anomaly simply because the building happens to be situate within the geographical limits of an estate abolished under the Abolition Act.
21. Apart from the consideration of the express provisions as contained in Section 45 (6) and Section 47 (3) of the Abolition Act, with reference to the buildings falling under Section 18 (4) of the said Act, there is yet another consideration for holding that the impartible character of the buildings remained unaffected. We have already referred to the provisions contained in Section 45 (6) and Section 47 (3) with reference to Section 45 (2) (a) of the Abolition Act. Section 45 (2) (a) of the Abolition Act has enumerated the sharers Who alone are considered to be a members of the joint family entitled to have a share in the compensation and in the lands under Section 45 (6) and Section 47 (3). It will be seen that the said joint family is an artificial one and not a natural joint family known to Hindu law, because all the persons who will be considered to be members of a coparcenary have not been brought within the fold of the sharers constituting the joint family for the purpose of Abolition Act, entitled to have a share in the compensation and the lands. Therefore, if the argument of Mr. Mani is accepted, a question will arise as to which joint family the buildings belonged, whether the joint family of the coparcenary as ordinarily understood in the Hindu law or the artificial joint family created by Section 45 (a) (a) read With Section 45 (6) and Section 47 (3) of the Abolition Act. It may be that the Legislature Was justified in including only sons, grandsons and great-grandsons as sharers and enabling them to get a share in the compensation because the estate of the principal landholder is taken away and therefore he has to be compensated and the chances of succession of his lineal descendants to the estate have been taken away and therefore they have to be compensated; and others who, under the ordinary Hindu law, would have constituted the other coparceners of the joint family were not included in this family of sharers because they might get a share in the compensation as maintenance-holders. But that is far different from saying that a joint Hindu family contemplated by Section 45 (6) and Section 47 (3) of the Abolition Act is the same as a joint Hindu family or coparcenary known to ordinary Hindu law. This is yet another reason for our taking the view that in the absence of a specific and express provision in the Abolition Act, it must be held that the buildings falling within the scope of Section 18 (4) of that Act continue to retain their original impartible character.
22. Mr. Mani, learned Counsel for the contesting respondents, has then contended that by virtue of the provisions contained in Section 45 (6) and Section 47 (3) of the Abolition Act, a partition among the members of the joint family must be deemed to have been effected on the notified date and if so, the buildings falling under Section 18 (4,) cannot be held by the principal landholder or the seniormost male member of the family as an impartible estate. We are unable to accept this argument as well. We have already pointed out that the joint family in Which a partition is deemed to have been effected on the notified date under Section 45 (6) and Section 47 (3) of the Abolition Act is an artificial and statutorily created joint family and not a natural joint family known to Hindu law. Apart from this, the said sections have a limited operation only With reference to the balance of the aggregate compensation and the lands for which ryotwari patta under Section 12 or Section 14 has been granted and they do not provide for any general division in status or partition in the joint family for all purposes. This is the conclusion reached by this Court in V.S. Subramania Iyer and Anr. v. Minor Sangili Veerappa Balasubramania Pandian alias Kutti Raja and Ors. : (1960)2MLJ102 , which also dealt with the Very Sivagiri estate Which is the subject-matter of this appeal. After referring to Section 45 (6) of the Abolition Act a Bench of this Court held:
Section 45 which enacts a fiction cannot, however, be extended so as to effect a division between the members of the family in regard to other properties for neither the status of the family nor its other properties are within its operation.... The statute which gives right to compensation amount treats it as a joint family property and also treats it as if there has been a partition of that property on the date of the notification. The statute creates a legal fiction for the purpose of compensating those persons, who, but for the Act Would be entitled to certain rights in the impartible estate. So far as the principal landholder was concerned, his estate Was taken over. So far as the sons and grandsons are concerned their chance of succession to the estate and their rights to maintenance have disappeared. In providing compensation for those persons, the statute creates a fiction by treating the compensation amount as joint family property. While that fiction could not be extended so as to hold that there Was a partition in the family of the sharers, its operation could not be belittled either, by holding that it has not done what it purported to achieve. Therefore, so far as the compensation amount is concerned, the sharers should be deemed to have been divided but in regard to their other coparcenary properties, they would continue to be as before, that is, undivided.
The position, then, Will be analogous to a case where members of a family are divided in regard to certain items of property, but continue to remain in undivided status in regard to others.
23. The next argument of Mr. T.R. Mani is that the custom of impartiality having been merged in the Madars Impartible Estates Act, 1904, the repeal of that Act by Section 66 of the Abolition Act Will not revive the old custom of impartibility and therefore the plaint second schedule buildings cannot be said to be impartible. For this purpose, strong reliance was placed upon a passage in the judgment of this Court in Minor Sangiliveerappa Balasubramanian Pandian alias Kuttiraja and Ors. v. Kannuthayi alias Muthathal Nachiyar and Ors. : (1967)2MLJ169 , referred to already. That passage contains a Statement from Craies on Statute Law and on this statement also, Mr. Mani relied. That case also, as we have pointed out already, concerned With the Sivagiri zamin estate which is the subject-matter of the present appeal and it came up to this Court in the form of appeals under Section 51 of the Abolition Act against the decisions of the Tribunal constituted under the Abolition Act for the distribution of the compensation amount deposited by the Government under the provisions of the Abolition Act. The question that arose for consideration in the said appeals was the right of the creditors of the deceased principal landholder in respect of the debts incurred by him personally prior to the notification of the estate to proceed against his share in the compensation and other amounts under the Abolition Act in the hands of his heirs and representatives. The argument advanced on behalf of the heirs of the deceased landholder to negative the claim of the creditors had been summed up in the judgment itself in the following terms:
The claims of the creditors in question are not against the impartible estate under Section 45 (3) of the Act and had been admitted only under Section 46 of the Act. The estate being an impartible estate, the character of impartibility is continued in the compensation amount to which the estate got transferred and in spite of its being divided under the provisions of the Act, the share of the principal landholder therein Would retain its impartible character. On his death no part of it could be treated as his estate and proceeded against by his creditors, and Section 59 (1) of the Act limited the liability of the compensation amount for debts, to the extent the liability could have been enforced prior to the notification. Prior to the abolition personal debts could not survive the death of the Zamindar. Ergo, there could be no execution against his share in the compensation.
It is this argument that was repelled by this Court by holding that after, the compensation amount has been distributed among the sharers under Section 45 (6) of the Abolition Act, such a share does not retain the character of impartibility either in the hands of the principal landholder or in the hands of the other sharers. It is only in this context that this Court made the following observation:
The question is whether in the face of the provisions of the Act holding that the principal or any other landholder or other persons whose rights can stand transferred to the Government shall be entitled only to such rights and privileges as are recognised and conferred under the Act, and the Act providing for apportionment of the compensation without any restraint or limitation under Which they have to draw the compensation amount, can it be held that the original custom of impartibility is revived In this connection, it will be useful to refer to the following principle enunciated by Lord Davey in New Windsor Corporation v. Taylor L.R. (1899) A.C. 41 at 49.
'My Lords, I hold it to be an indisputable proposition of law that where an Act of Parliament has according to its true construction, to use the language of Littledale, J., embraced and confirmed a right which had previously existed by custom or prescription that right becomes hence forward a statutory right, and that the lower title by custom or prescription is merged in and extinguished by the higher title derived from the Act of Parliament.
In Craies on Statute Law, sixth edition, after referring to the above passage from the judgment of Lord Davey, it is stated at page 339:
The result of the doctrine is that the repeal of the statute dealing with a right previously existing by custom, charter, prescription or franchise does not revive the old right as it stood before the repealed statute Was passed unless an intention to do so is clearly indicated.' In this case far from there being absence of any intention apparent in the Act to revive the custom., one finds the provisions in the Act totally incompatible With the continued existence of the custom of impartibility in the substituted assets. We are concerned here only with the compensation amount relating to the impartible estate which has been notified and taken over by the Government and not with the properties, if any, of the impartible estate outside its geographical limits.
24. We are clearly of the opinion that for more than one reason, the above passage in the judgment of this Court referred to above does not in any Way support the contention of the contesting respondents. In the first place, the Bench of this Court in that case Was dealing only with the character of the share of the compensation in the hands of the principal landholder after its distribution as provided for under Section 45 (6) of the Abolition Act. Section 45 (6) is express and is creating a fiction to the effect that the compensation amount should be divided as between the sharers, as if the same belonged to the joint family consisting of them and a partition among them had taken place on the date of the notification. Such a fiction has to be given full effect to and once it is so done, certainly the share of the compensation amount in the hands of the principal landholder could not by any stretch of imagination be held to continue to possess the character of impartibility.
25. Secondly, We are not sure that the observation of Lord Dvey and the passage in Craies on Statute Law have the effect contended for by the learned Counsel in the present case. The full passage as to the effect of statutes on prescription, or custom is to be found in Craies on Statute Law, seventh edn, at pages 340-341 and the same is as follows:
There is a very lengthy and learned discussion in Coke upon Littleton by Hargarve and Butler, as to the effect of a statute upon a cutsom, leading to the conclusion that a statute which is in the affirmative does not take away a custom; but it seems doubtful whether even a statute expressed in negative language can do so if it is merely declaratory of the exiting law.
In New Windsor Corporation v. Taylar L.R. (1899) A.C. 41, 45, 49 Lord Halsbury, L.C. said: It is therefore clear to my mind beyond question that the nature of the right (customary tolls) is completely altered by turning it into a statutory right and that the right must continue--if it does not continue-by virtue of the statute without any power of revival or reverter back to its original nature.' Lord Davey said: 'I hold it to be an indisputable proposition of law that where an Act of Parliament has, according to its true construction, to use the language of Littledale, J., 'embraced and confirmed' a right which had previously existed by custom or prescription, that right becomes thenceforward a statutory right, and that the lower title by custom or prescription is merged in and extinguished by the higher title derived from the Act of Parliament.' This doctrine also applies to a franchise or charter created by a grant from the Grown. The result of the doctrine is that the repeal of the statute dealing with a right previously existing by custom, charter, prescription or franchise does not revive the old right as it stood before the repealed statute was passed, unless an intention to do so is clearly indicated. If the statute which superseded the franchise was of a temporary character, it seems uncertain whether on the laps of the statute the old right Would revive. So an ancient franchise market was held in Miyor of Manchester v. Lyons (1883) 22 Ch. D. 287 to have been extinguished by a series of statutes creating a statutory market in its place (corresponding to the same as found at page 339 of Craies on Statute Law, sixth Edn).
The opening sentence of the above passage Will clearly indicate that a statute which is in the affirmative does not take away, a custom. Even with regard to a statute expressed in negative language which merely declares an existing law a doubt is expressed whether it could be said to take away the custom. Since the proposition contended for is said to arise out of a decision of the House of Lords in The Mayor and C of New Windsor and Anr. v. Joseph Taylor L.R. (1899) A.C. 41, we shall examine that decision to find out whether that decision in any Way supports the said contention. In that case from a time long before living memory down to 1734 the mayor, bailiffs and burgesses of the borough of New Windsor had taken certain tolls for passage over the wooden bridge which crossed the Thames at Windsor. In 1734, the local Act 9 Geo. 2 c. XV. was passed, by which--after reciting that the mayor and C. were seized of the bridge and the way thereon, and Were obliged by reason of their tenure to repair and maintain them, and Were entitled to receive certain customary tolls for pontage and passage over and under the bridge, Which tolls the Act specified, including 2 d. for every passage of every hackney coach (not a freeman's) and that the bridge was then ruinous--it Was enacted that the bridge and the way and the said customary tolls should be and remain vested in the mayor and G. and their successors, who should spend for every item chargeable for the repair and maintenance and new making of the bridge and Way; and that the mayor and G. might demand and take of all persons (other than freeman of the borough) the respective tolls before mentioned, for horses, carriages, barges and other things. The exemption of freemen Was thus extended from the tolls for hackney coaches to all tolls.
26. In 1819 the local Act 59 Geo. 3 c. XXVI Was passed, whereby it Was enacted that as soon as the old bridge should be taken down or rendered impassable the Act, Geo. 2 c. XV should be repealed and the mayor and G. might build a new bridge which should be vested in the major and C. for the time being for ever, and might demand and take the tolls specified by this Act. These tolls Were in some respects larger than the former tolls and included other matters. The Act also provided that if the new bridge should not be completed within five years from 1st March, 1820, all the powers should cease except as to so much of the bridge as should have been completed. Section 57 provided that the Act should commence on 1st March, 1820 and continve in force during twenty-one years and from thence to the end of the next session of Parliament. This term was extended by 5 Viet. c. VIII to thirty one years further and from thence to the end of the next session. The Corporation built the bridge and took the tolls but obtained no further Act. In that situation a question arose whether after the expiry of the period of the Act, the Corporation was entitled to collect tolls on the basis of its anterior customary right. It was this right that was negatived by the House of Lords. Earl of Halsbury, L.C. said:
By prescription the appellants had the right to take certain tolls. They had that right by prescription, and the right of a tenant under the lord of the franchise to do certain thing could not be contested; but the lord of the franchise had also certain rights in respect of the man who was under obligation to him, and if he had so pleased, and if there had been misconduct in the nature of a fraud, either upon him or upon those persons against whom the franchise was exercised, he might have had power to forfeit. That right was an important right, and a right which in early times was not infrequently exercised, but in this case the moment that Act of 9 Geo. 2, Was passed that right was gone. That question does not depend on the mere identity of the sums to be exacted from the public. If there had not been a single change in any part of the things that were to be done, or powers to - be exercised, the nature of the right itself, the root of the title under which a person invested with that right could use it against the general public, was gone as originally granted. The person empowered to take the toll was clothed with a new parliamentary authority, and was in fact acting under a statute...It is, therefore, clear to my mind beyond question that the nature of the right itself is completely altered by turning it into a statutory right, and that the right must continue, if it does not continue, by virtue of the statute without any power of revival or reverter back to its original nature. * * * *
At present the one proposition We have to deal With is that the right to take tolls rested entirely on 9 Geo. 2, and from the time when that Act was repealed, except in so far as the right to take the toll was continued by the temporary Acts, the right was gone; all that the appellants were entitled to rely upon Was their statutory power; and as by the hypothesis the statutory power has expired, it appears to me that all power to levy a toll of any kind is gone.
Lord Watson observed:
But when the substance of the Act is looked to, there are a great many considerations which, to my mind, clearly point to this result-that the Legislature did not intend the franchise to subsist and be an available right to the holders; that their intention was to substitute for it a statutory right which was at least equivalent to the franchise, and to leave no other right standing; to regulate the rights of the holders of the franchise, or the rights and obligations of those who used their bridge * * * It would be out of the question to suggest that, having made statutory provision for the levy of those franchise tolls for the future under statutory authority, the Legislature intended the mayor, bailiffs, and burgesses to continue to levy the same tolls under their franchise.
Well, my Lords, what appears to me to have been effected by that part of the enacting clause of this statute is simply to create what it was quite competent for them to do--a statutory authority in the room of, and in substitution for, the right of franchise which was previously available to the mayor, bailiffs and burgesses. The effect of that substitution of a new statutory authority for an authority derived from the franchise only Was, I apprehend, on the clearest authority to determine the franchise--to put an end to it; and, accordingly, I think that matters stood in the position that there was no franchise; there was a perpetual right to levy according to the scheme substituted for the franchise certain sums for the bridge and thereupon the mayor and burgesses go to Parliament for another Act.
Lord Davey himself observed:
Turning to the Act of George II, I have no doubt whatever that that Act did confer a statutory right to tolls of the same amount as that which the corporation had previously received by custom or prescription, although differing in one respect as to the persons liable to those tolls * * * * * * **
I cannot conceive, my Lords, that that is not such a confirmation of the previous title of the Corporation as Would operate to give hence-forward after the passing of that Act a statutory right to the tolls subject to the exception mentioned which Would merge and extinguish the previous lower title by prescription and custom.
Lord Ludlow, on his part, stated:
In my opinion the Act of George II, extinguished the old franchise or prescriptive rights and substituted in their place a new parliamentary title.
Thus, it is clear that the entire reasoning in the said judgment of the House of Lords on which the passage is based, is that the statute in question extinguished the pre-existing right flowing from franchise, prescription or custom and substituted for it a new statutory right and therefore the repeal or the expiry of that statute did not revive the previous right Which Was already extinguished.
27. On the above principle, it cannot be contended that in the present case the buildings, lost their impartible character, since the customary impartible character of the estate was not extinguished by the Madras Impartible Estates Act, 1904 and in its place a statutory impartible character Was not created. We have already referred to in detail, the circumstances under which the Madras Impartible Estates Act, 1902, the Madras Impartible Estates Continuance Act, 1903 and the Madras Impartible Estate-Act, 1904 were passed and the provisions contained therein. The provisions in the Madras Impartible Estates Act, 1904 make it absolutely clear that the said Act does not deal with the impartible character of an estate at all; it merely recognises the existence of the impartible character of the estates and on the basis of such recognition proceeds to make provisions for preserving the estates by imposing restraints on the power of alienation of the holders of the estates for the time being and providing for right of maintenance in certain other persons.
28. Mr. Mani strongly relied upon Section 3 of the Madras Impartible Estates Act, 1904, and contended that once that section stated that the estates included in the schedule shall be deemed to be impartible estates, it must be held that the impartible character of the estates had merged in the statute and therefore the statute must be deemed to have dealt with the impartible character itself. We are unable to agree with this contention, in view of the plain intent and the language of the statute. The only two matters that have been dealt with by the said Act are the right of the holder of an impartible estate for the time being to alienate the estate or parts thereof and the right of certain persons to maintenance from and out of the impartible estate and its income. Sivagiri zamin is one of the impartible estates included in the schedule to the Madras Impartible Estates Act, 1904. It is conceded, before us that the said estate Was an impartible one even prior to that Act and as a matter of fact in all the judgments referred to above dealing with this estate, it has been treated as an ancient, ancestral impartible estate. Under such circumstances We are unable to hold that the impartible character of the estate Was dealt with by the Madras Impartible Estates Act, 1904 and all that can be said is that the pre-existing impartible character of the estate Was recognised by the said statute and on the basis of such recognition provisions With regard to other matters concerning the estate were made in the said Act.
29. Bobbili Zamin is another ancient impartible estate and with reference to such an estate in relation to the Madras Impartible Estates Act, 1904, this Court in Sri Ravu Janardhana Krishna Ranga Rao Bnhadvr v. The Stale of Madras, represented by the Collector of Srikakulam District at Srikakulam and Ors. : AIR1953Mad185 already referred to, stated:
So far as the Bobbili Estate is concerned, it did 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 was recognised.
We are of the opinion that the abovesaid observation made in connection with the Bobbili Estate applies directly to Sivagiri Estate which is the subject matter of the present appeal. For these reasons, We hold that the repeal of the Madras Impartible Estates Act, 1904 under Section 66 of the Abolition Act does not deprive the buildings falling Within the scope of Section 18 (4) of the Abolition Act of their impartible character.
30. We may also in this context refer to a subsidiary point. We have already pointed out that the buildings in question have been alienated by the third defendant, the seniormost male member of the family in favour of the 18th defendant. We have also referred to the law as declared by the Privy Council with regard to the right of a holder of an impartible estate to alienate the same absolutely and it is with a view to curtail that right the Madras Impartible Estates Act, 1904, Was passed, as far as the old Madras Presidency Was concerned. With the repeal of that enactment by Section 66 of the Abolition Act naturally the restraint imposed on the power of alienation by the said enactment came to an end, thereby restoring the law, as laid down by the Judicial Committee in the decisions referred to already.
31. The last argument of Mr. T. R. Mani is based on the language of Section 18 (4) of the Abolition Act. According to the learned Counsel, as a result of the notification of the estate under the Abolition Act, the entire estate including the buildings has vested in the Government and When under Section 18 (4) the principal landholder becomes entitled to the building', it is a creation of a new right in his favour and to this new right the character of impartibility does not attach itself. We are of the opinion that this argument proceeds on a misconception. We have already extracted Section 3 (6) of the Abolition Act in full. We have also extracted the provisions of Section 18 (1), Section 18 (2), Section 18 (3), Section 18 (4) and Section 18 (5). A combined reading of these provisions Will clearly show that the buildings in an estate do not vest in the Government under Section 3 (b), but under independent provisions made in Section 18 itself. The very opening portion of Section 3 dealing with consequences of notification of an estate states that the consequences enumerated therein would follow, 'save as otherwise expressly provided in this Act'. Therefore, the combined effect of this saving provision as well as the absence of reference to buildings in Section 3 (b) Will clearly show that Section 3 (b) does not take in buildings. If Section 3 (b) takes in buildings and thereunder the buildings vest in the Government free of all encumbrances, Section 18 (1) and Section 18 (2.) vesting the buildings in the Government free of all encumbrances will be redundant and otiose. Consequently, the only way of reconciling Section 18 (1), and Section 18 (2) and Section 3 (b) of the Abolition Act is to hold that the buildings as such do not vest in the Government under Section 3 (b) and they vest in the Government only under Section 18 (1) and Section 18 (2).
32. This position is easily understandable, because the buildings situate in an estate might belong to the principal landholder or to the members of his family or third parties and even with regard to the buildings belonging to the principal landholder, some of them might have been used as office in connection with the administration of the estate or might have been in the occupation of any religious, educational or charitable institutions or might have been used for the private purposes of the last principal landholder. The object of the Legislature is not to enable the Government to take over all such buildings but enable them to take over only such buildings as had been exclusively used as office in connection with the administration of the estate, since the estate itself is being taken over; and such buildings Which were in the occupation of any religious, educational or charitable institutions. At the same time, the Legislature Wanted to thwart any attempt that might be made by the landholder after 1st July, 1947, to evade the provisions of the Act, when the impending legislation became known. In view of this alone, specific provisions Were made for taking over, (1) all the buildings belonging to the landholder and used exclusively as office in connection with the administration of the estate immediately before the notified date, under Section 18 (1) and (2) all the buildings belonging to the landholder which Were in the occupation of any religious, educational or charitable institutions, immediately before the notified date, under Section 18 (2); and for payment of compensation to the Govern-ment out of the compensation payable to the landholder for the buildings of the category referred to in Section 18 (1) and Section 18 (2) but sold or gifted away or ceased to be used as office for the administration of the estate or ceased to be occupied by the religious, educational or charitable institutions after the 1st day of July, 1947. Barring these three categories of buildings, all other buildings were dealt With under Section 18 (4) and they were allowed to remain with the persons who Were entitled to the same immediately before the notified date. No doubt, the language of Section 18 (4) namely, 'shall vest in the person who owned it immediately before that date' is the same as that Which occurs in Section 18 (1) and Section 18 (2). But nonetheless We are clearly of the opinion that the effect is not the same, having regard to the scheme of the enactment namely the effect of Section 18 (1) and Section 18 (2) being to vest the buildings in the government for the first time and the effect of Section 18 (4) being to recognise the pre-existing ownership of the building in the persons concerned.
33. This conclusion of ours derives further support from the fact that with regard to the buildings falling within the scope of Section 18 (3) there is no express provision for vesting. That subsection deals with three types of buildings (1) building belonging to the landholder on the 1st day of July, 194.7 and on that date Was being used by him exclusively as office in connection With the administration of the estate, but had been sold or made a gift of, after 1st July, 1947, (2) building belonging to the landholder, which on 1st July, 1947 Was being used exclusively as office in connection With the administration of the estate, but had ceased to be used as office of the estate after 1st July, 1947; and (2) building belonging the landholder on 1st July, 1947, the whole or principal part of which Was on that date in the occupation of any religious, educational of charitable institution, and which, after the 1st day of July, 1947 ceased to be in the occupation of such an institution. With regard to these three categories of buildings, there is no vesting provision, in that sub-section, or any other subsection since Section 18 (4) deals with buildings other than those referred to in Section 18 (1), Section 18 (2) and Section 18 (3) and Section 18 (1) and Section 18 (2) make specific provisions for vesting of the buildings dealt with by them. All that Section 18 (3) states is that the value of such buildings shall be assessed by the Tribunal in such manner as may be prescribed and the Tribunal shall pay to the Government such value from out of the compensation deposited in its office under Section 41 (1). The inevitable conclusion is that the ownership of the buildings as such continues to remain with the landholder or the persons in Whose favour a sale or gift has been made thereof. This position confirms our conclusion that the buildings in an estate do not vest in the State under Section 3 (b) of the Abolition Act and Section 18 (4) of the said Act does not vest the ownership of the building for the first time in the persons referred to therein and it merely recognises the pre-existing ownership. Consequently, We are unable to accept this argument of Mr. T.R. Mani, namely, that a new right is created under Section 18 (4) of the Abolition Act with regard to the the buildings falling within that subsection and therefore to such a new right the character of impartibility cannot attach itself for the first time.
34. For the above reasons, We reverse the conclusion of the learned Additional Subordinate Judge of Tirunelveli and hold that the properties described in the second schedule to the plaint, namely, the buildings, continued to have their impartible character, even after the abolition of the estate and therefore on the death of the last landholder of the estate on 16th August, 1955, they devolved on the eldest male member of the family namely, the third defendant. However, since defendants 20 to 25, the legal representatives of the 18th defendant alone have preferred this appeal, we allow the appeal, set aside the decree and judgment of the learned Additional Subordinate Judge dated 29th March, 1965 in O.S. No. 26 of 1956 and hold that the appellants are entitled to such of those buildings covered by Exhibits B-7 and B-9 and no other member of the family of the last Zamindar has any share or interest therein. Since the third defendant has not preferred any appeal, the decree for partition passed by the learned Additional Subordinate Judge will stand as far as the items of buildings other than those covered by Exhibits B-7 and B-9 are concerned, namely Vacant site of 3 acres in Item 1 not covered by Exhibit B-9, Door No. 100 in item 2 and items 3, 4 and 5 of the plaint second schedule, the other items of the plaint second schedule being covered by Exhibits B-7 and B-9.
35. There is one other small matter regarding the shares of the various parties as allotted by the learned Additional Subordinate Judge. In paragraph 29 of his judgment, the learned Additional Subordinate Judge correctly held that defendants 13 and 14, the illegitimate sons of the last Zamindar would be entitled to take a half share, which they would have taken, if they had been the legitimate sons. However, in working out the shares in paragraph 37 of the judgment, he committed a mistake in holding that defendants 13 and 14 will each be entitled to 1/12 share in the properties. The last Zamindar died leaving behind his two widows, defendants 1 and 2, his four legitimate sons, defendants 3 to 6 and two illegitimate sons, defendants 13 and 14. Therefore, the shares of the parties will be: Defendants 1 and 2 will have together G/35 share; defendants 3 to 6 will each have 6/35 shares; and defendants 13 and 14 will each have 1/14th shares in the items or buildings in the second schedule to the plaint, other than those covered by Exhibits B-7 and B-9. This being an obvious mistake committed by the learned Subordinate Judge and the parties before us agreeing that the above will be the correct shares to which the parties are entitled, the decree of the trial Court is modified accordingly with reference to the items of buildings in the plaint second schedule, other than those covered by Exhibits B-7 and B-9.
36. There will be no order as to costs.