ivil Appeal No 1072 of 1976
From the Judgment and Order dated the 221973 of the Madhya Pradesh High Court in First Appeal No 19 of 1966
TU Mehta SN Singh and TN Singh for the Appellants
VA Bobde Uday U Lalit SK Gambhir A G Rat naparkhi Ms Vandana Kakre and RA Roman for the Respond ents
The Judgment of the Court was delivered by K RAMASWAMY J
This appeal by special leave under article 136 of the Constitution of India arises against the decree and judgment dated February 2 1978 in First Appeal No 10 of 1966 of the MP High Court at Gwalior Bench
Krishna Rao  Lala Saheb for short respondent laid the Civil Suit No 9 A of 1962 before the Addl
District Judge Gwalior for partition of the plaint schedule 1 to 3 properties in equal moiety and allotment of one such share to him
648 Pending this appeal he died and his legal representatives are on record
The Trial Court by its judgment and decree dated January 31 1966 granted preliminary decree for parti tion of half share in schedule 1 and 2 and half share in the movable property namely compensation amount jewellery and utensils as found in the inventory prepared by the Nazir except the stridhana property of 3rd defendant ie mother of appellants Nos 1 and 2
The High Court while confirming the decree of the Trial Court directed the respondent to bring into hotch potch his jewellery and the appellants to have a half share therein and dismissed the appeal and the cross objections
The admitted facts are that one Ghanshyam Sadashiv Baxi Saheb for short Ghanshyam 1  was the common ancestor
He had two sons by name Yesaji 1 and Phatoji
Yesaji 1 had a son by name Ramakrishna whose son was Yesaji  Baba Saheb for short Yesadji2
Yesaji 2 rendered meritorious military service to Ranaji Scindhia and in recognition thereof the Raja of Gwalior granted permanent Jagir of Chandurpura village under exhibit D 20 together with the buildings situated in 100 Bighas of land and the residential Bada with right of enjoyment and succession from generation to generation
By virtue thereof the ownership possession and enjoyment was continued successively for seven generations upto Dwarkanath by rule of primogeniture
Ghanshyam Tatya Saheb for short Ghanshyam 2 had two sons by name Dattatraya Rao  Bapu Saheb for short Dattatraya 1 and the respondent
Dwarkanath was the son of Dattatraya 1
The appellant Dattatraya  Prakash and Pradip  Anil appellants Nos 1 and 2 are sons of Dwarkanath Aruna Bai third defendant is his widow
Ghansh yam 2 died on June 20 1909
Dattatrya 1 died on February 6 1926 and Dwarkanath died on May 19 1956
Dwarkanath being minor on his succession to the estate the court of wards took over management and the respondent was appointed as a Superintendent
On death Of Dwarkanath since appellants 1 and 2 were minors Aruna Bai their moth er initially managed the estate with the assistance of the respondent
Subsequently the respondent came into full control and management till date of suit
The respondent filed the suit for partition in the year 1962 pleading that all the plaint schedule 1 to 3 properties are coparcenary and he is entitled to a half share therein
The respondent received maintenance from Jagir income at the rate of Rs 125 per month
In the written statement the appellants while admit ting the geneology their residential house at Gwalior as ancestral they dis 649 puted the nature of the properties as joint family states of the respondent and the appellant as coparceners
They admitted that till death of Ghanshyam 2 in 1909 the family was joint and thereafter they were separated by mess and residence in the year 1929
The house M No 626 Holka No 101 at Gwalior was the residential old house but the Veran dah and two rooms on both sides were constructed by Datta traya 1
The shops in the back side of iron gate at Kampoo Road were not existing during life time of Ghanshyam 2 but the lands were purchased by Dattatraya 1 with the Jagir income and the shops and the rooms were constructed with the Jagir income
It was also pleaded that four shops situ ated on eastern side of iron gate were constructed by the appellants  mother from the compensation of the Jagir lands and the personal amount belonging to them
Jeherin Araji lands were purchased by Dattatraya 1 from his personal amounts
The rooms situated on eastern side of Shashikala Ranglekar was purchased and constructed during the minority of Dwarkanath from the income of the Jagir
The property adjacent to the gate on the north of the Bada namely two rooms gate the pucca house along with the well were con structed from the income of the Jagir by Dattatraya 1
The pator on the south side of the stair case was constructed by Dwarkanath from Jagir s income Pucca walls adjacent to the quarters and the southern side of the main residential Bada are estate properties and as per law and
custom of Gwalior State Dwarkanath became the owner of the property
The respondent has no right to a share but had only right to maintenance
After the death of Ghanshyam 2 the respondent continued to receive maintenance from his brother Datta traya 1 who continued in possession and enjoyment of the Jagir as his personal property
The respondent had right to share only in the private property
The residential house except Verandah and two rooms shown as No 1 2 and 3 in the enclosed map belong to the family and those three items belong to Dattatraya 1
Accordingly it is their plea that the Jagir being impartible estate is the separate and self acquired properties of Dattatraya 1 and Dwarkanath by rule of primogeniture and the concept of coparcenary and joint family status are inapplicable to it
The respondent has no share therein but has only right to maintenance as a junior member of the family as per the law and custom of Gwalior State
It was further pleaded that the respondent and his wife were given jewellery at the time of their marriage
The jewellery found by Nazir belong to the family of the appel lants and some of them are stridhana of 3rd defendant
The respondent is not entitled to any share therein or in the utensils
The trial court found that till date of death of Ghanshyam 2 in 650 1909 he was Jagirdar
Dattatraya 1 and Dwarkanath succeeded as Jagirdars by rule of primogeniture
After the abolition of the Jagir compensation was paid to Dwarkanath during his life time as the eldest member of the family and the appel lant No 1 also had been paid balance of the compensation
If a joint family possesses property which was admittedly joint the presumption would be that the property continued to be joint and the burden lies upon the member who claims and separate property to plead and prove it as separate or self acquired property
The respondent was living jointly with his brother Dattatraya 1
Number of sale deeds show the purchase made by Dattatraya 1 that old pators and two shops were remodelled by the court of wards
The purchase of the plots by Dattatraya 1 and constructions made thereon by him on the ancestral lands are the joint family properties
The Bada at Gwalior is the residential house and was not a part of the grant in exhibit D 20
Therefore the residential Bada on the Kampoo Road is an ancestral property of the family
Whatever accretions were made therein must be deemed to be incorporated for the benefit of the family unless it is specifically shown that it was self acquired and separate property by Ghanshyam 2 or Dattatraya 1 or Dwarkanath
After the abolition of the Jagir Dwarkanath received compensation
The four shops constructed also form joint family property
The properties given under exhibit D 20 in the village Chandupu ra are the Jagir properties
This is also ancestral and impartible property
There is no evidence to show that out of the Jagir income received any property purchased or constructed were kept as separate properties
Therefore whatever accretions made by Dattatraya 1 for Dwarkanath or Aruna Bai are joint family properties
It was also found that the respondent did not make any contribution nor improved the properties
As there is no evidence to show that Dattatraya 1 treated the income of the property as his separate income the plaint schedule 1 properties are ances tral properties
The Jagir compensation received from time to time also form the joint family properties
The relations between the family was smooth and cordial till 1962
There was no partition earlier thereto
Merely because succession to the Jagir was governed by the rule of primogeniture it did not clothe the Jagir with the incidence of separate and self acquired property
Therefore they are joint family properties liable to partition
The jewellery except the stridhana of third defendant are joint family properties
The High Court substantially upheld the findings of the trial court
It held that rule of primogeniture and survi vorship was introduced by the Manual of Jagirdars of the Gwalior State Qwaid Jagirdaran in the year 1913 Samwat 1970 and with the abolition of the Jagir in 1951 under the Madhya Bharat Aboli 651 tion of Jagir Act 28 1951 Samwat 2008 for short the Act   the properties became the ancestral Hindu Joint Family properties and they are partible irrespective of the fact in whose name it was entered either as Bhumidar in revenue papers or Jagirdar
The rooms constructed in the ancestral Bada are accretions to the ancestral house and became part and parcel of it
There is no evidence that the money spent for construction came from separate or own funds of the appellants
All the rooms became accretions to the ancestral property and became joint family property
The jewellery are joint family properties to the extent found by the Trial Court and are liable to partition
The compensa tion paid under the Act also belongs to the joint family property
It directed to bring into hotch potch the jewel lery of the respondent for partition in equal shares
Shri TU Mehta learned senior counsel for the appel lants contended that the courts below erred in holding that the properties are joint family properties liable to parti tion
Since it is a Jagir grant as per the custom and law the eldest male member succeeds by rule of primogeniture and survivorship
Therefore they are the separate properties of the eldest descendant subject to right of maintenance by the junior members of the family
Despite they being members of the undivided Hindu Joint Family the concept of copar cenership cannot be applied to Jagir estate
The respondent having had the benefit of maintenance right through is not entitled as coparcener to a partition of the plaint sched uled properties as the joint family properties
The jewel lery are the exclusive property of the appellantsdefend ants Shri Bobde learned senior counsel for the respondent argued that though the Jagir was granted tO the named indi vidual the recitals therein unmistakably point to the fact that it is to be enjoyed by the family from generation to generation
It would therefore be the coparcenary proper ty
Appellants and the respondent being governed by the Mitakshara Law are entitled to equal moiety
The jewellery is the joint family property
There is no partition at any time
It was further contended that after the abolition of the Jagir under the act Dwarkanath or appellants received compensation and the properties were acquired from the income of the compensation
The properties therefore are impressed with joint family character and are partible
Thus the decree for partition is not illegal
The facts as found or not disputed in the pleadings are thus Admittedly Chandurpura village was granted as Jagir under Sanad exhibit D 20 and thereafter the family lived in Gwalior for several gen 652 erations in the Bada
Certain accretions or incorporations were made to the properties of the family from out of the income derived from the estate or compensation received under the Act
Dattatraya 1 Dwarakanath and 3rd defendant improved the properties
The respondent right through received maintenance from the estate and did not contribute anything for the improvement of the estate
He had his education from the maintenance granted from the estate and became a Judicial Officer
After the abolition of the Jagir under the Act compensation received also was used to build shops
The Jagir remained indivisible and impartible and devolved successively for seven generations on the eldest male lineal descendant and it continued till Dwarkanath s death in 1956
They are governed by Mitakshara Hindu Law and rule of primogeniture
Under the Act the Jagir lands were resumed and Jagir was abolished
During the management of the estate by the Court of Wards the respondent admittedly worked as Superintendent
The family remained undivided till date of suit
There is no evidence that any Jagirdar in particular Dattatraya 1 or Dwarkanath treated the accre tions as separate or self acquired property
From these facts the question emerges whether the plaint schedule properties are coparcenary
In our view the Courts below fell in serious misconceptions of law
Qwaid Jagirda ran only recognised and reiterated the existing law or custom of impartibility and indivisibility of Jagir etc
and succession by rule of primogeniture
High Court also committed error in holding that impartibility came to an end with the abolition of Jagir under the Act and that earlier thereto and subsequent to the Act the properties were copar cenary
Neither court appreciated the correct legal posi tion
In Chapter 25 of Mayen s Hindu Law 12th Edition at page 1065 paragraph 744 it is stated that 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 common instances of this class are the ancient zamindaries  or feudatory estates held on military service tenure such as   royal grants   services such as Jagirs  653 In Baijnath Prasad Singh vs Tej Bali Singh 48 Indian Appeals 195AIR the Judicial Committee held that succession to impartible estate will be regulated according to the ordinary rule of Mitakshara Law
and that the respondent being a person who in joint family would being eldest of the senior branch with head of the family is the person designated in this impartible estate to occupy the gaddi
Accordingly it was held that rule of primogeni ture would apply and not the ordinary rule of Mitakshara Law of survivorship that would be applicable to impartible estate
In Katama Natchiar vs Raja of Shivganga 1863 9 Moore Indian Appeals 588 PC the Board held that the Zamindari is admitted to be in the nature of a principality of im partible and capable of enjoyment by only one member of the family at a time and that therefore Mitakshara law of suc cession of the eldest male member would be applicable
In Sartai Kuari  Anr
vs Deoraj Kuari 15 Indian Appeals 51 the Board held that there was no co parcenary in impartible estate
Pratap Chandra Deo vs Jagdish Chandra Deo 54 Indian Appeals 289AIR ruled that there is no co ownership in an impartible estate and that therefore no right of coparcenary
survivorship would arise in an impart ible estate
In Anant Bhikkappa Patii vs Shankar Ramchandra Patii AIR 1943 PC 196 at 201 it was held that Now an impartible estate is not held in coparcenary though it may be joint family property
It may devolve as joint family property as separate property of the last male owner
In the former case it goes by survi vorship to that individual among those male members who in fact and in law are undivided in respect of the estate who is singled out by the special custom
eg lineal male primogeniture
In the latter case jointness and survivorship are not as such in point the estate devolves by inheritance from the last male owner in the order prescribed by the special Custom or according to the ordinary law of inheritance as modified by the custom
 In Amrendra Man Singh vs Sanatan Singh 60 Indian Appeals 242AIR it was held that the zamindari proper ty belonged to the adopted son as to the last male owner
Thus it is settled law that succession to an impartible estate is 654 governed by rule of primogeniture and the eldest male member of the family would succeed by survivorship to the imparti ble estate
It is seen from the record and it is not contro verted even across the Bar that for seven successive genera tions the Jagir estate descended on the eldest male member of the family by rule of primogeniture
The question then is whether the Jagir is partible as Hindu Joint Family property
In Shiba Prasad Singh vs Rani Prayag Kumari Debi  Ors 59 Indian Appeals 351AIR relied on by Sri Mehta Sir Dinshan Mulla speaking for the Board held that impartibility is essentially a creation 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 mainte nance and 4 the right of survivorship
The first of these rights cannot exist in the case of an impartible estate though ancestral from the very nature of the estate
The second and the third are incompatible with the custom of impartibility
To this extent the general law of 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 survivor ship is not inconsistent with the custom of impartibility
This right therefore sail retains its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such property
Though the other rights which a co parecener acquires by birth in joint family property no longer exist the birth right of the senior member to take by survivorship still remains
emphasis supplied Nor is this right a mere succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband s estate
It is a right which is capable of being renounced and surrendered
Therefore it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint it is necessary to prove an intention express or implied on the part of the junior members of the family to renounce their right of succession to the estate
It is not sufficient to show a separation merely in food and worship
In Chinnathayi  Veeralakshmi v Kulasekara Pandiya Naicker  Anr
1 this Court held that the right to bring about partition of an
impartible estate cannot be inferred from the power of alienation that the holder there of may possess
In the case of an impartible estate the power to divide it amongst the members does not exist though the power in the holder to alienate it is there
This Court further held that 655 To establish that an impartible estate has ceased to be joint family property for pur poses of succession it is necessary to prove an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate
In each case it is incumbent on the
plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant s branch in the estate was determined so that it became the separate property of the last holder s branch
The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and intention to impress upon the zamindari the character of separate property In Shiba Prasad Singh s case it was further held thus surely then the property will pass not as his separat property but by survivorship as joint property devolu tion by survivorship being another incident of an impartible estate
The fact is that when self acquired property is incorporated with an ordinary joint family estate the pro perty so incorpo rated is impressed with all the incidents whic attach to an ordinary joint family estate and when self acquired property is incorporated with an ancestral impartible estate the property so incorporated is im presse with all the incidents which attach to an ancestral impart ble estate
The mere possi bility therefore of the holder alienating the property after incorporation is no reason for denying to him the power which the Hindu law gives him of changing the mode of descent to his property
Nor is there anything in that rule of law which is incon sistent with the custom of impartibility Accordingly it must be held that the impartible estate though descends by rule of primogeniture and survivorship on the eldest male member of the family it must also be proved that the junior members gave up expressly or by implication his right to a share therein
The further question is whether it is competent to the holders ofan ancestral impartible estate to incorporate with the estate other properties acquired or incorporated by him or them with the income ofthe impartible estate
In Smt
Rani Prabha Kumari Dibi vs Jagdish Chunder Dhabal 29 Indian Appeals 82ILR 29 Calcutta 433 PC 656 the question was regarding succession to an ancestral im partible estate and four Mauzas that has been purchased on behalf of the last holder out of the savings of the estate
The Board held that there must be evidence to establish the intention of the holder express Or implied to incorporate the property as part of the estate
Though the collection of the rents was by the estate servant and the papers were kept in the estate the Board held that the evidence was not sufficient to hold that the Raja intended to incorporate the four mauzas with ancestral estate for the purpose of his succession
The 4 Mauzas must therefore follow the rule of Mitakshara as to self acquired property
In Janki Pershad Singh vs Dwarka Pershad Singh 40 Indian Appeals 170ILR 35 Allahabad 391 PC the movable and immovable properties acquired from the income of the estate and were incorporated as part of the estate yet the Board held that the question whether the properties acquired by an owner becomes part of the ancestral estate for the purpose of the succession would be considered from the intention of the holder of the es tate
It was held on facts that no sufficient evidence was adduced to establish such an intention
In Murtaza Husain Khan vs Mohd Yasin Ali Khan 43 Indian Appeals 269AIR as regards immovable properties the same view
was reiterated
In Jagdamba Kumari vs Wazir Narain 48 Indian Appeals 195AIR the Board held that the income of ancestral impartible estate was the absolute properties of the owner of the estate and not an accretion to the estate as in the case of ordinary joint family estate
While reversing the judgment of the High Court it held It is possible that this confusion is due to the consideration of the position with regard to an ordinary joint family estate
In such a case the income equally with the corpus forms part of the family property and if the owner mixes his own moneys with the moneys of the family as for example by putting the whole into one account at the bank or by treating them in his accounts as indistin guishable his own earnings share with the property with which they are mingled the character of the joint family property but no such considerations necessarily apply to the income from impartible property In Jagdamba Prasad s case the Board held that the income received is the absolute property of the owner of the im partible estate and it does not attach to the estate as does the income of ordinary ancestral estate attaches to the estate
While immovable property can be impressed with the impartible estate movable property cannot
It 657 was further held that the income received is the absolute property of the owner of the estate it derives and in no way from the property he might have by his own saving
It is wrong assumption to make that the income of the property of that nature is so effected by the sources from which it came that still retains itself original character
In Commission er of Income tax Madras vs Honble Sri Ravu Swetachalapati Ramakrishna Ranga Rao Rajah of Babbili the full Bench held that the income received by the holder of the impartible estate was not received as
a member of the Hindu Undivided Family
The income is
his and the junior members have no right therein
In Shiba Prasad s case 1932 the Board held that it is possible to incorporate immovable property as a part of the estate but movable properties are the separate properties and they cannot be incorporated and the doctrine of incorporation does not apply in the words thus The rule of succession in such a caseis recognised by the State as part of the law of family though it is no more than the result of a course of conduct of individual subjects of the State constituting the family
Under the Hindu system of law clear proof of usage
 even if it be a family usage will outweigh the written text of the law In Commissioner of Income tax Punjab vs Dewan Bahadur Dewan Krishna Kishore Rais Lahore SirGeorge Rankin speaking for the Board held that when a family governed by the Mitakshara by custom the rule of primogeniture controls the devolution of impartible proper ty the custom of impartibility does not touch the succes sion since the right of survivorship is not inconsistent with the custom hence the estate retains its character
of joint family property and devolves by the general law upon the person who being in fact and in law joint in respect of the estate is also the senior member in the senior line
Hence a holder of the estate receiving income from house property cannot be said to be the owner of such property
It is the joint family that is the owner and therefore he cannot be assessed as an individual in respect of such income
In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur  Ors
vs Shri Pushavathi Visweswar Gajapathi Raj  Ors  it was held that immov able property subsequently acquired also would become im partible and ceases to be partible and becomes impartible but the theory of incorporation cannot apply to movable property
In ease there is a family custom even in respect of movable properties as per the custom those movable pro 658 perties also become part of impartible estate
Incorporation is a matter of intention
It is only where evidence has been adduced to show the intention of the acquirer to incorporate the property aCquired by him with the impartible estate of which he is the holder then an inference can be drawn about such incorporation
The question therefore is one of intention of acquirer
By custom in the family the jewellery would be treated to form part of the regalia which belong to the holder of the estate and then would form part of impart ible estate
In that case as per custom in the family cer tain jewellery were treated as part of impartible estate and belonged to the estate
The income of an impartible estate thus is not income of the undivided family but is the income of the present holder notwithstanding that he has sons or brothers from whom he is not divided
The fact that the son s or brother s right to maintenance arises out of the eldest brother s possession of impartible estate and is a right to be maintained out of the estate do not make it a right of a unique or even exceptional character or involve the conse quence at Hindu Law that the income of the estate is not the holder s income
Income is not
jointly enjoyed by the party entitled to maintenance and the party chargeable nor can it be said that the respective chances of each son to succeed by survivorship make them all co owners of the income with their father or make the holder of the estate a manager on behalf of a Hindu family of which he and they are the male members of the family
It is equally well settled law that the holder of im partible estate can incorporate other properties belonging to him with that estate so as to make them also impartible and descendable to a single heir by survivorship
It is one of intentions to be proved as a fact whether the accretions are his separate properties or incorporated as part of impartible estate
The intention may be express or implied by conduct or treatment of the properties
In Muttu Baduga nadha Tevar vs Periasami  Udayana Tevar 23 Indian Appeals 128 PC the Privy Council held that the doctrine of representation between the father and his three lineal descendants has been on the assumption that he is reborn in them and the eldest to exclude his brother is continued to his lineal male heirs
In Ravi Janardhana Krishna Ranga Rao vs State of Madras AIR 1953 Madras 185 relied on by Sri Mehta it was held that in the case of an estate to which the incident of impartibility attaches
by custom custom supersedes the general Mithakshara law excepting in the matter of devolution of the property by right of survivor ship
When an impartible estate was aCquired by the Govt
under the 659 
Madras Estates Abolition and ConVersion into Ryotwari Act compensation received retains the incident of impartibility attached to the estate and the principle that conversion would not alter the nature ofthe estate is universal
In Thakore Shri Vinayasinghji vs Kumar Srinatwarsinghji  Ors
1988 Supp SCC 133 relied on by the appellants this court held thatthere is no restraint on the power of alienation of the holder of theimpartible estate
There is a right of survivorship by birth to the seniormembers of the family but in all other respects it is clothed with thein cidents of self acquired and separate property with the holder ofimpartible estate and unlimited right of acquisi tion not only by transferbut by will
In Sri Raja Rao Venka ta Mahipati Gangadara Rama RaoBahadur vs Raja of Pittapur 47 Indian Appeals 354AIR and in Maharajah of Jeypore  Anr
vs VikramaDeo Garu 52 Indian Cases 333AIR the Board alsoheld that apart from custom and from near relationship to the holderthe junior members of the family have no right to maintenance out ofthe income of the impartible estate
It is also thus well settled law that the right of joint enjoyment which is ordinary incident to a coparcenary where the joint estate is partible is excluded by the rule of primogeniture and impartibility
The income of an impartible estate and the accumulation of such income are the absolute property of the holder
The immovable properties would be incorporated with impartible estate
It must be proved that the holder had impressed the immovable proper ties as part of the estate
But the movable properties will not
Movables are not an accretion to the estate as in the case of an ordinary joint family estate
It is seen that the grant of Chandurpur Jagir was in perpetuity and the enjoyment is from generation to genera tion Geneology abstracted hereinbefore establishes that devolution by survivorship to the eldest male member contin ued till time of Dwarakanath and the respondent received only maintenance from the Jagir estate
What was implicit was made explicit by Quaid Jagirdaran issued in Samwat 1970 by the Maharaja Scindhia of Gwalior State
In paragraph 2 thereof it has been stated that Jagir grant shall be indi visible and impartible property
In paragraph 2 of the preamble it is stated that the Jagir in its entirily would continue in the family in which they were conferred
Thus it is indivisible and impartible and succeeded by lineal eldest descendent of the family by rules of primogeniture
660 Chandarpura Jagir was granted under exhibit D 20 with 100 Bighas of lands and the buildings situated therein accre tions made in such estate out of its income are impartible estate governed by the rule of primogeniture and was suc ceeded by Dwarkanath as last eldest male descendant in the family
Therefore they were not the joint family properties but are separate properties of Dwarkanath and the respondent has no right to a share therein as a coparcener
The other lands acquired from the income thereof stand incorporated as part of the Jagir and are not partible
Section 9 of the Act recognises the existing legal position and that the Junior member has only right to maintenance and directs payment thereof out of the compensation amount and creates a charge thereon
Therefore the properties enumerated in items 1 to 3 and 5 of schedule 2 are not partible
The preliminary decree in that regard is set aside
There appears to be dispute regarding item 4
So it is left out to be decided in separate proceedings
Both the courts found as a fact that the accretions were from out of the income of the Jagir
Schedule 1 ances tral residential Bada and other properties situated at Gwalior are not covered by the sanad exhibit D 20
Admittedly all the members of the joint family lived therein
The prior partition in 1929 set up by the appellants was negated by the courts below
Though Dattatraya 1 and Dwarkanath improved the properties from the income of Jagir estate as part of the joint estate there is no evidence to establish that either Dattatraya 1 or Dwarkanath treated those proper ties as their separate or self acquired properties
Both the courts found as a fact that accretions formed part of
the joint
family properties
Equally there is no evidence that the respondent had given up his share therein either ex pressly or by implication by conduct
His assertion to be a coparcener and the properties to be coparcenary shows that he continued to claim to be a member of the joint family and admittedly the properties are joint
The accretions stood blended with ancestral joint family properties
Under section 3 of the Act what was resumed was only Jagir lands
Resumption means taking back what was given what was re sumed are the lands and not the property of a person from whom it was taken by the rightful owner
Therefore
what was resumed is the right title and interest in the Jagir lands covered by the provisions of the Act and compensation was paid in lieu thereof
Under section 5bi notwithstanding the vesting in the State under section 4 thereof all Open enclosures used for   domestic purposes and in continuous possession for 12 years immediately before the date of the resumption II all open house sites purchased for valuable consideration III all private 661 buildings places of worship wells etc
situated in  house sitespecified in clause I and II IV all groves wherever situated andlands appurtenant thereto shall continue to belong to and be held by the Jagirdar and be settled on him V all tanks trees private wellsand buildings in the occupied lands shall continue to belong to or beheld by the family
Thus it is clear that all private properties including buildings in the jagir belong to or held by the Jagirdar remained to bethe property of the Jagirdar
All private properties in the Jagir otherthan impartible Jagir therefore rem ained to be joint family property
We therefore hold that schedule I properties are partible
The pre liminary decree for partition of them are Upheld  It is seen that 100 bighas of land in Chandurpura was granted as Jagir
What had remained after the Act is hardly 541 bighas
So the rest of the lands obviously was re sumed by the Government under the Act
By operation of section 18 of the Act it is Jagirdar who is entitled toreceive compensation money payable under the Act
Therefore themon ey received towards compensation of Jagir lands also retains thecharacter as impartible
Under the Act by operation of section 19 of the Act the Jagirdar is declared to be pucca tenant of Khudkhast lands of Dwarkanath
From the impugned judgment it is clear that there are plethora of precedents of Madhya Pradesh High Court that after the abolition of the estates under the Act the lands became joint family properties which received approval from Anant Kibe  Ors
Purushottam Rao  Ors 1984 Suppl SCC 175 relied on by Sri Bobde
There in this court held that the combined effect of sections 1581b and 164 of the MP Land Revenue Code was that the incident of impartibility and the special mode of Succession by the rule of primogeniture which were granted in terms of the grant of inam lands under the Jagir Manual stood extin guished
Bhumiswami right was conferred on the holder of the land ie Dwarkanath In Madhya Bharat Land Revenue and Tenancy Act 1950 by operation of sections 547 69 and 82 the lands become the pucca tenancy of Bhumiswami ie Dwarka nath
Therefore the devolution of the right of puccatenancy is by succession opened to the appellants Nos 1 and 2Accordingly we hold that Item 2 3 and 5 of schedule 2 lands become the properties of the appellants
Cash grant of item 1 in schedule 3 of a sum of Rs689500 is to the family the respondent had already received maintenance as a Junior member from the family and so he is not entitled again to a share therein
The decree is accordingly set aside
Regarding item 2 by operation of section 18 of the Act the Jagirdar is entitled to it and that 662 therefore the respondent had no share therein
The jewel lery and utensils being movable properties are separate and personal propertiesbelonging to the appellants
Admittedly the respondent was given jewellery at his marriage etc
Therefore the jewellery and utensils are not liable to partition
The decree for partition of them is set aside
The appeal is partly allowed
The judgment and decree of the trial court as confirmed by the High Court to the extent of all the items in schedule 1 for partition in two equal shares and allotment of one such share to the respondent is confirmed
The decree for partition of schedule 2 and 3 and of the jewellery and utensils is set aside
The appeal is allowed to the above extent but parties are directed to bear their own costs
YL Appeal patly allowed


Summary:
One Ram Subba Reddy an advocate politician and a tradeunionist was murdered on the night between 14th and 15th April 1975 at his house in Proddatur when the de ceased is stated to have received fatal blows by lethal weapons whilst his daughter PW 1 sleeping nearby received injuries when she attempted to go to help her father
Ac cording to the prosecution Accused No 1 Respondent No 1 was a friend and a regular visitor to the house of the deceased till they fell out on account of trade union activities
Accused No 1 was the President of the workmen s unions of Andhra Cotton Mills Proddatur International Packaging Company Proddotur and Transport Workers espous ing the cause of workmen and directing their union activi ties while the deceased a practising Advocate represented the managements of these companies and tendered legal advice to them in connection with the various labour problems arising in those companies
The deceased who was a lawyer for the companies had advised the accused No 1 not to resort to violence for settlement of industrial disputes
The fact that infuriated accused No  1 further was the help which the deceased agreed to provide to PW 11 for setting up an office of INTUC in his own office
This was intended to counter the militant activities of Accused 1 who was in control of most of the labour unions in the town
According to the prosecution at about 330 am on the day of occurrence PW 1 who was sleeping on the terrace of the house nearby her father woke up bearing the cries of her father ans saw accused 1 with 6 or 7 others stabbing her father with daggers
She raised an alarm and tried to go to rescue her father but she was prevented by three of them from getting up accused No 3 had gagged her mouth with his hand and had pinned her down to the cot
Thereafter accused 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sus tained injuries on her left index finger 601 thumb and palm extending to another finger
After the as sailants left she got down and informed her mother PW 2 about the incident she opened the door to PWs 3 and 4 who were sleeping outside
She sent a message to the police through PW S her neighbour as telephone lines were cut
The police took up investigation and 19 persons including the respondents were put up for trial before the Additional Sessions Judge Cuddapah on different charges eg criminal conspiracy rioting and murder etc
The learned trial judge came to ie conclusion that the prosecution had failed to establish the Charge of criminal conspiracy under Section 120B IPC It accepted the testimony of PWs 1to 5 and held i that the incident occurred at 330 am on the terrace of the residence of the deceased ii the injuries borne on the fingers of PW 1 were not self inflicted as suggested by defence and iii that the intimation of the incident was the police without loss of time
Accordingly the trial Judge convicted Accused Nos 1 and 3 under Sections 148 and 302 and Sec 324 with the aid of Section 149 IPC and accused No S under Section 148 302 and 324 IPC and sentenced all the three to life imprisonment for murdering Ram Subba Reddy and to rigorous imprisonment for 3 years under section 148 IPC
The other 16 accused were acquitted
The convicted persons appealed to the High Court and the State filed an application for enhancement of the sentence imposed on Accused No 1 to capital punishment
The High Court allowed the appeal by the convicted persons and acquitted them
Hence this appeal by the State against the order of acquit tal by special leave
The High Court bold that the evidence of PW 1 is tainted in that the names of accused 2 and 4 who were strangers to her figure in her statement Exh
P 1 and further her statement regarding identity of Accused 3 and S was unacceptable
The High Court therefore found the evi dence led by the prosecution untrustworthy
and thus acquit ted the accused appellants before it
Partly allowing the appeal this Court HELD On the question of presence of PW 1 in Proddatur on the date of the incident apart from the oral evidence of PWs 1 to 3 and 5 there is the documentary evidence in the form of the entry exhibit S6 recorded by PW 24 in the general diary on April 15 1975 at about 4 30 am
That entry was made on the information supplied by PW 5
It is clearly stated therein by PW S that he had been told by PW 1 that her father was murdered at his residence
It was on receipt of this information that the police went to the house of the deceased drew up the inquest report and recorded the state ments of those present there including PW 1
The presence of PW 1 is therefore clearly established 602 by this document prepared within an hour from the time of the incident
This contemperaneous document corroborates the oral evidence of the aforesaid witnesses
614AC The High Court failed to realise that when an injury is on an accessible part of the body which the individual can himself reach such an injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction of the injury or such other factors show otherwise
But merely because the medical officer says that they could be self inflicted there is no reason to jump to such a conclusion unless
circumstances establish such a possibility
In the present case there was hardly any opportunity to self inflict them
Her not being a left hander should make no difference because she is bound to use that hand to ward off the blows if her assailant is on that side of her bed
The High Court was not justified in con cluding that PW 1 had self inflicted the wounds found on her left hand
This conclusion of the High Court is to say the least wholly conjectural and totally against the weight of evidence on record
615F 616A Once it is accepted that PW 1 had slept on the terrace and had sustained the injuries in the incident her evidence regarding the identity of accused No 1 who was quite well known to her cannot be doubted
616G The evidence of PW1 is that when she heard the cries of her father she woke up and saw accused No 1 and six or seven others belabouring him
This means that she did not know and could not identify the companions of accused No 1
However when she tried to raise an alarm three of the assailants approached her and pinned her down to the bed and one of them threatened to stab her
He did carry out his threat as is evidenced from the injuries sustained by her
She was able to identify two of them at the identification parade held on May 23 1975
This is proved through the evidence of PW 14 who conducted the test identification parades
Now accused Nos 3 and S had surrendered before the Court on May 13 1975
PW 14 received the requisition for arranging a test identification parade on May 17 1975the identification parade was actually held on May 23 1975 There is no valid explanation tendered by the prosecution for the delay in holding the identification parades
The High Court was reluctant to place absolute reliance on the evidence of PW 1 regarding the identity of accused Nos 3 and 5
In the absence of a valid explanation for the delay the Court did not think that this approach of the High Court can be said to be manifestly wrong to call for intervention
617A E 603 The Court in the result partly allowed the appeal in so far as it related to original Accused No 1 respondent No 1 set aside the High Court s order acquitting him and restored the order of trial Judge convicting and sentencing him
The Court affirmed the High Court s order of acquittal passed in respect of other accused giving them the benefit of doubt
617E G State of Jammu and Kashmir vs Hazara Singh  Anr  referred to