Appeal No 748 of 1966
Appeal by special leave from the judgment and order dated February 16 1965 of the Allahabad High Court in Civil Revision No 373 of 1963
B Sen and OP Rana for the appellant
Yogeshwar Prasad Paras N TiwariSS Khanduja for B Dutta for the respondent
The Judgment of the Court was delivered by Ramaswami J
This appeal is brought by special leave from the judgment of the Allahabad High Court dated February 16 1965 in Civil Revision No 373 of 1963 which was filed against the judgment of the Additional Civil Judge Mirzapur dated December 4 962 in Revenue Appeal No 417 of 1961
The respondent made an application before the Rehabilitation Grants officer Mirzapur under section 79 of the UP Zamindari Abolition and Land Reforms Act 1950 to obtain the determination and payment of rehabilitation grant to him
The case of the respondent was that he was the son of the late Raja Sharda Mahesh Narain Singh Shah of Agori Barhar Raj tehsil Robertsganj in Mirzapur district
Raja Anand Brahma Shah who was a Malgujar of more than Rs l0000 annually executed Gujaranama deeds in favour of his younger brothers and Iris mother separately in the year 1949
By these deeds certain villages were transferred by the raja to the Raj Kumar and the mother in lieu of their right of maintenance
One of such Gujaranamas was executed by Raja Anand Brahma Shah in favour of respondent Raj Kumar Rukmini Raman Brahma who is one of his younger brothers
The document was executed on October 5 1949 and registered on January 357 18 1950
The application of the respondent before the Rehabilitation Grants Officer was opposed by the appellant
The objection of the appellant was that the transfer in favour of the respondent cannot be legally recognised in view of section 23 1 a of the UP Zamindari Abolition  Land Reforms Act 1950 UP Act 1 of 1951  hereinafter called the Act for the purpose of assessing the amount of rehabilitation grant
By his order dated January 28 1961 the rehabilitation Grants Officer held that the respondent was entitled to rehabilitation grant
The appellant preferred an appeal against the order of the Rehabilitation Grant Officer
The appeal was heard by the Additional Civil Judge Mirzapur who rejected the objection of the appellant and dismissed the appeal
The appellant took the matter in revision to the Allahabad High Court but the Revision Application was dismissed on February 16 1965
It is necessary at this stage to set out the relevant provisions of the Act Section 3 12 In this Act unless there is anything repugnant in the subject or context 12 Intermediary  with reference to any estate means a proprietor under proprietor sub proprietor thekedar permanent lessee in Avadh and permanent tenure holder of such estate or part thereof
 Section 23 Transfer by way of sale or gift not to be recognised 1  Notwithstanding anything contained in any law no transfer by way of sale or gift of any estate or part thereof a made on or after the first day of July 1948 shall be recognised for the purpose of assessing the amount of rehabilitation grant payable to the intermediary 2 Nothing in sub section 1  shall apply to a any sale made under order of a court in execution of any decree or order for payment of money or b any sale or gift made in favour of a wakf trust endowment or society established wholly for charitable purposes unless the State Government in any particular case directs otherwise
 upCI70 l1 358 Section 24b Any contract or agreement made between an intermediary and any person on or after the first day of July 1948 which has the effect directly or indirectly a b of entitling an intermediary to receive on account of rehabilitation grant an amount higher than what he would but for the contract or agreement be entitled to under this Act shall be made and is hereby declared null and void
 Section 73 There shall be paid by the State Government to every intermediary other than a thekedar whose estate or estates have been acquired under the provisions of this Act a rehabilitation grant as hereinafter provided Provided that where on the date immediately preceding the date of vesting the aggregate land revenue payable by the intermediary in respect of all his estates situate in the areas to which this Act applies exceeded rupees ten thousand no such grant shall be paid to him
 The principal question involved in this appeal is whether the Gujaranama deed dated October 5 1949 executed by Raja Anand Brahma Shah is a transfer by way of sale or gift within the meaning of section 23 1  of the Act and cannot therefore be recognised for purpose of assessing the amount of Rehabilitation Grant was argued on behalf of the appellant that on a true construction of the document the transaction must be taken to be a gift of the property by Raja Anand Brahma Shah to the respondent
In our opinion there is no warrant for this argument
The relevant portion of the Gujaranama deed dated October 5 1949 states  
I Shri Raja Anand Brahma Shah son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj Rampur Estate Pargana Barhar Tehsil Robertsganj District Mirzapur am the proprietor of Angori Raj District Mirzapur which is an impartible estate
That according to law and custom the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and the younger sons have a fight to maintenance and they are given a reasonable share of the estate in lieu of the right of maintenance so as to enable them to pass their life in accordance with their 359 status
The estate is under an obligation to provide  maintenance of this type
Therefore it is obligatory upon me also to make some provision for the maintenance of my younger brother Shri Rukmini Raman Brahma by giving him some property
He also desires that some maintenance should be provided for him
Therefore I out of my sweet will and willingness do hereby execute this document in the terms following 1
That from today s date I give the property detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his right of maintenance and I deliver to him the proprietary possession of the properties aforementioned which include all rights pertaining to Sir land self cultivated land water and forest rates houses and buildings shops jungles hills etc
That Shri Rukmini Raman Brahma and his male lineal descendants will as per the custom of maintenance prevailing in my estate remain in possession of the said properties from generation to generation and that in case of there being no male lineal descendants of the transferee the property shall revert to the holder of the jagir
That the erstwhile transferee for maintenance shall be competent to transfer the property detailed below subject to the condition that prior to sale it is and shall be obligatory on his part to give intimation in this behalf to the erstwhile holder of the jagir by means of a registered notice and if he be not willing to have the deed executed in his favour the property may be given in sale to
any other person
Otherwise the deed of sale shall be invalid and shall be liable to pre emption
That the transferee for maintenance shall pay land revenue and other customary dues and taxes to the Government
The jagir shall not be responsible for the payment of the same
That the transferee for maintenance may get his name entered in the revenue papers
We shall have No objection in this regard
Since the decision of the Privy Council in Shiba Prasad Singh vs Rani Prayag Kumari Devi1 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 1 59 IA 331 360 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
In the case of an ordinary joint family property the members of the family can claim four rights lthe 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
It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist
The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rant Sartaj Kuari vs Deoraj Kuari1 and the First Pittapur case2
The right of maintenance and the right of survivorship
 however still remain and it is by reference to these rights that the property though impartible has in the eye of law to be regarded as joint family property
The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successionis
Unlike spes succession is the right of survivorship can be renounced or surrendered
It was held by the Judicial Committee in Collector of Gorakhpur vs Ram Sunder Mal3 the right of maintenance to junior members out of an impartible estate was based on joint ownership of the junior members of the family
In that case Lord Blanesburgh after stating that the judgment of Lord Dunedin in Baijnath Prasad Singh vs Tej Bali Singh4 had definitely negatived the view that the decisions of the Board in Sartaj Kuari s case  1  and the First Pittapur case  2  were destructive of the doctrine that an impartible zamindari could be in any sense joint family property went on to observe One result is at length clearly shown to be that there is no reason why the earlier judgments of the Board should not be followed such as for instance the Challapalli case Raja Yarlagadda Mallikariuna Prasad Nayadu vs Raja Yarlagadda Durga Prasad Nayadu6 which regarded their right to maintenance however limited out of an impartible estate as being based upon the joint ownership of th e 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 Lord Blanesburgh said The recent decisions of the Board constitute a further landmark in the judicial exposition of the question at issue here
While the power of the holder of 1 15 IA 51
2 26 IA 83
3 61 IA 286 4 48 IA 195
5 271A 151 361 an impartible raj to dispose of the same by deed Sartaj Kuari s case1 or by will the First Pittapur case and Protap Chandra Deo vs Jagadish Chandra Deo3 remains definitely established the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re affirmed
Nor must this right be whittled away
It cannot be regarded as merely visionary
 As pointed out in Baijnath Prasad Singh s case4 when before the Allahabad High Court the junior members of a great zamindari enjoy a high degree of consideration being known as babus the different branches holding babuana grants out of the zamindari
Their enjoyment of these grants is attributable to their membership of the joint family and until the decisions above referred to beginning in 1888 supervened they had no reason to believe that their rights of succession were being imperilled by their estrangement from the zamindar in possession
 In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of m aintenance
In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift
It is also not possible to contend that it was a sale of the properties for there is no money consideration
It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahm a Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate
In our opinion the Gujaranama deed dated October 5 1949 is not hit by the provision of section 23 of the Act and the argument of the appellant on this aspect of the case must be rejected
It was contended on behalf of the appellant that the case should be remanded to the Rehabilitation Grants Officer on account of certain procedural irregularities
It was pointed out that the Rehabilitation Grants Officer did not follow the provisions of the Civil Procedure Code by treating the application under section 79 as a plaint and the objection of the State Government as a written statement
It was said that the Rehabilitation Grants Officer was bound to
frame proper issues and to take evidence of the parties 1 15 IA 51
2 26 IA 83
3 54 IA 289
4481A 195
362 on those issues as in the civil suit
But no case has been made out for remand because the appellant has not denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Anand Brahma Shah
No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer the award of the Rehabilitation Grants Officer was challenged only on a question of law
For these reasons we hold that this appeal fails and must be dismissed with costs
GC Appeal dismissed


Summary:
The Raja of an impartible Estate in UP executed certain Gujaranama deeds in 1949 including one in favour of the respondent his younger brother
After the UP Zamindari and Land Reforms Act 1950 UP Act 1 of 1951 came in force the respondent made an application before the Rehabilitation Grants Officer under section 79 of the Act
The Rehabilitation Grants Officer held that the respondent was entitled to the Grant and the order was upheld by the higher courts including the High Court
In appeal by the State of UP before this Court it was contended that the Gujaranama executed by the Raja in favour of the respondent was
a transfer by way of sale or gift within the meaning of section 231  of the Act and therefore could not be recognised for purposes of assessing the amount of Rehabilitation Grant
HELD i After the decision of the Privy Council in Shiba Prasad Singh s case 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
In the case Of an ordinary joint family property the members of the family can claim four rights 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
It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist
The second is also incompatible with the custom of impartibility
The right of maintenance and the right of survivorship however still remain and it is by reference to these rights that the property though impartible has in the eve of law to be regarded as joint family property
The right of survivorship unlike mere spes successionis can be surrendered
The right of maintenance to junior members out of an impartible estate is based on joint ownership of the junior members of the family
361 H 362 D Shiha Prasad Singh vs Rant Prayag Kumari Devi 59 IA 331 Rani Sartaj Kuari vs Deoraj Kuari 15 IA 51 First Pittapur case
26 IA 83 Collector of Gorakhpur vs Ram Sunder Mal 61 IA 286 and Baijnath Prasad Singh vs Tej Bali Singh 48 IA 195 applied
Raja Yarlagadda Mallikarjuna Prasad Nayadu vs Rain Yarlagadda Durga Prasad Nayadu 27 IA 151 and Protap Chandra Deo vs Jagadish Chandra Deo 54 IA 289 referred to
ii In the present case there was the statement of the Raja in the Gujaranama deed that according to the law and custom of the estate the 356 eldest son of the Raja becomes the owner of the estate on the death the earlier Raja and that the younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance
In view of this admission of the Raja it was not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift
It was also not a sale of the properties for there is no money consideration
It was manifest that the transaction was by way of a settlement to the respondent by the Raja in lieu of the right of maintenance of the respondent which was obligatory upon the holder of impartible estate
The Gujaranama was therefore not hit by the pro vision of section 23 of the Act
363 D F iii The plea on behalf of the appellant that the case must be remanded to the Rehabilitation Officer because no issues were framed or evidence taken in the case had no force because there were no questions of fact raised in the written statement on which evidence could be taken
364 A