Civil Appeal No 2477 of 1972
1114 From the Judgment and Decree dated 2121969 of the Gujarat High Court in FA No 89 of 1961
SK Dholakia RC Bhatia and PC Kapur for the Appellants
BK Mehta HS Parihar and ND Bhatti for the Respondents
The Judgment of the Court was delivered by DUTT J
This appeal by special leave is at the instance of the plaintiff appellant since deceased and is directed against the judgment and decree of the Gujarat High Court reversing those of the Civil Judge Senior Division Himatnagar whereby the learned Civil Judge decreed the suit instituted by the appellant
The late Thakore Sartansinhji the father of the appellant was the Ruler of the former Mohanpur State situated in the district of Sabarkantha Gujarat
After independence the said Mohanpur State merged in the then State of Bombaynow the State of Maharashtra
The former Ruler the father of the appellant by a deed of gift dated May 14 1951 gifted certain properties to his youngest son the respondent No 1 herein
By his will dated May 22 1951 the former Ruler also bequeathed certain properties to the respondent No 1 and his mother
The father of the appellant died on December 9 1955 and on his death the appellant became the Ruler
On May 10 1956 the suit out of which this appeal arises was instituted by the appellant challenging the validity of the said deed of gift and the will
In the suit the case of the appellant was that as the rule of primogeniture applied to the Raj Estate he being the eldest son succeeded to the Gadi 
It was contended that the former Ruler that is the father of the appellant had no power of alienation either by gift or by will and accordingly the disposition made by him by the said deed of gift and the will in favour of his younger brother the respondent No 1 was illegal and invalid
The respondents including the younger brother of the appellant contested t he suit inter alia denying that the former Ruler had no power of alienation as contended by the appellant
It was averred that the deed of gift and the will were perfectly legal and valid
The learned Civil Judge decreed the suit in part declaring that the deed of gift and the will were illegal and directed the respondent No 1 to hand over to the appellant the possession of the properties which were all agricultural lands as mentioned in the deed of gift
The learned Civil 1115 Judge passed a decree for mesne profit but refused the prayer of the appellant for an injunction on the ground that the appellant had failed to prove his possession of the properties mentioned in the plaint
Being aggrieved by the judgment and decree of the learned Civil Judge the respondents preferred an appeal to the High Court
The High Court after considering the facts and circumstances of the case and the evidence adduced by the parties held that the former Ruler had the power of alienation and accordingly the deed of gift and the will impugned in the suit were legal and valid
The appeal was allowed and the judgment and decree of the learned Civil Judge were set aside
Hence this appeal by special leave
During the pendency of the appeal in this Court the appellant Thakore Harnathsinhji Vinayasinhji died on June 27 1985 leaving behind him the present appellants who were already on record as his heirs and legal representatives
It is not disputed that the Raj Estate of which the deceased appellant was the Ruler is impartible and that the rule of primogeniture which is one of the essential characteristics of an impartible estate is also applicable
The question that is involved in this appeal for our consideration is whether the holder of an impartible estate to which the rule of primogeniture applies as an essential characteristic of such an estate can alienate the properties comprised in the estate by a deed of gift or will
The legal position that prevailed up to 1888 was that a holder of an impartible estate could not transfer or mortgage such estate beyond his own life time so as to bind the coparceners except for purposes beneficial to the family and not to himself alone
In 1888 for the first time in Rani Sartaj Kuari vs Deoraj Kuari 15 IA 51 the Privy Council recognised the power of alientation by the holder of an impartible estate and held that such power of alienation could be excluded by custom or by the nature of the tenure
In that case the Privy Council also took the view that in an impartible Raj Estate the son is not a co sharer with his father
This view however was not accepted by the later Privy Council decisions and it is now well settled that co ownership of the joint family exists in impartible estate
At this stage it will be profitable for us to refer to the illuminating judgment of Sir Dinshah Mulla in the case of Shiba Prasad Singh vs Rani Prayag Kurnari Debi AIR 1932 PC 2 16
Sir Dinshah Mulla while delivering the judgment of the Judicial Committee of the Privy Council observed as follows 1116 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 t3 the right of maintenance and 4 the right of survivorship
The first of these rights cannot exist in the case of an impartible estate though ancestral from the very nature of the estate
The second is incompatible with the custom of impartibility as laid down in Satraj Kuari s case 15 IA 5 1 and Rama Krishna vs Venkata Kumara 26 IA 83 PC and so also the third as held in Gangadhara vs Rajah of Pittapur 45 IA 148
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 48 IA 195
To this extent the estate still retains its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such property
Though the other rights which a co parcener acquires by birth in joint family property no longer exist the birthright of the senior member to take by survivorship still remains
Nor is this right a mere spes successlonis similar to that of a reversioner suceeding on the death of a Hindu widow to her husband s estate
It is a right which is capable of being renounced and surrendered
Such being their Lordships  view 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
 The law has been clearly and succinctly stated in the passage extracted above
There is therefore no restraint on the power of alienation of the holder of the impartible estate as any restraint on the power would be incompatible with the custom of impartibility
The impartible estate though ancestral is clothed with the incidents of self acquired and separate property except as regards the right of survivorship which is not inconsistent with the custom of impartibility
1117 The right of survivorship has been held to be a birthright and is not a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband s estate
Mr Dholakia learned Counsel appearing on behalf of the appellants does not dispute that the holder of an impartible estate has the power of alienation by transfer inter vivos
It is however submitted by him that he has no such power to make a disposition by a will which would affect the right of survivorship by birth of the junior members of the family which is the only right that remains and as recognised by the Privy Council in Shiba Prasad s case supra is not opposed to the custom of impartibility
It is submitted by the learned Counsel that disposition by will is incompatible with the right of survivorship by birth
The right of the junior branch to succeed by survivorship to the Raj on the extinction of their senior branch has also been definitely and emphatically reaffirmed by the Privy Council in Collector of Gorakhpur vs Ram Sundar Mal AIR 1934 PC 157
Counsel submits that the right of alienation by will and the right of survivorship by birth cannot co exist and as it is now a settled law that in an impartible Raj Estate the right of survivorship of birth of the junior members to succeed to the estate still remains it will be beyond the power of the holder of the estate to defeat such right by a will
Attractive though the contention is we regret we are unable to accept the same
It has been already noticed that in Sartaj Kuari s case supra the right of alienation of the holder has been recognised and in Shiba Prasad s case supra such right of the holder is reiterated
Impartibility is essentially a creature of custom which supersedes the general law
It is true that the impartible estate retains the character of joint family property only to the extent that there is a right of survivorship by birth to the junior members of the family but as the Privy Council has observed in Shiba Prasad s case supra that in all other respects it is clothed with the incidents of self acquired and separate property so it follows that the holder of the impartible estate has the unlimited right of alienation not only by transfer inter vivos but also by will
When the holder has the power to dispose of the estate during his life time it would be quite illogical to hold that he would not have the power of disposition by a will
It is however submitted that no assumption should be made of the power of disposition by will from the existence of the power of the holder to alienate during his life time
In support of this contention the learned Counsel for the appellants has placed reliance upon a 1118 decision of this Court in Chinnathayi vs Kulasekara Pandiya Naicker 19521 SCR 241 where it has been observed by Mahajan J in delivering the judgment of the Court that 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 and from the existence of one power the other cannot be deduced as it is destructive of the very nature and character of the estate and makes it partible property capable of partition
We do not think that the said observation bears any analogy to the contention made on behalf of the appellants
In that case this Court was concerned with the question whether the holder of an impartible estate could divide the estate amongst the members
In laying down that there is no such power of division this Court has pointed out that such a power would be contrary to the nature and character of the estate that is to say the impartibility of the estate
In the instant case the question is whether the holder has power of disposition by will
The power of alienation as already noticed has been recognised without any reservation inasmuch as such power is not incompatible with the impartibility of the estate
The rights which are available to the members of the Hindu joint family under the Mitakshara law have been curtailed to a great extent as most of the said rights would be inconsistent with the nature and character of the estate
Chinnathayi s case supra lends no support to the contention of the appellants
We may now consider a later decision of the Privy Council in Sri Raja Rao vs Venkata Kumari 26 IA 83
In that case the Privy Council considered the question of extension of the decision in Sartaj Kuari s case supra to a will and it was held If the Rajah had power to alienate he might do it by will and the title by the will would have priority to the title by succession As the case before the Privy Council related to an impartible Raj Estate succession to the estate would be by survivorship
The Privy Council however took the view that title by will would have priority to the title by succession
In other words it follows that the holder of the Raj Estate can defeat the right of survivorship by disposing of the estate by a will
The learned Counsel for the appellants however submits that in laying down that an impartible Raj Estate is alienable by a will the Privy Council proceeded on the basis that there was no right of survivorship by birth
We are afraid we are unable to accept this contention
It is true that the Privy Council in that decision has not referred to the right of survivorship of the junior members of the family but it should not be assumed that the Privy Council was not aware of the legal position that in an impartible Raj Estate the junior members would succeed to it by 1119 survivorship
Raja Rao s case supra is therefore an authority for the proposition that a holder of an impartible estate cannot only dispose of the estate by transfers inter vivos but also by a will and that when such a disposition is made by a will it defeats the right of survivorship
It is submitted by the learned Counsel for the appellants that in extending the decision in Sartaj Kuari s case supra the Privy Council Raja Rao s case supra did not give any reason for extending the power of alienation of the holder of an impartible estate to alienation by a will thereby defeating the right of survivorship by birth which is the only right that is available to the junior members of the family
It may be that no reason has been given by the Privy Council but at the same time there is also no reason why when the holder is entitled to dispose of the estate during his life time he is not so entitled to dispose of the same by a will
Our attention has been drawn by the learned Counsel for the appellants to a decision of the Privy Council in Seth Lakhmi Chand vs Mt Anandi and others AIR 1926 PC 54
In that case the question that arose was whether a member of a joint Hindu family could make a disposition by a will or not
The Privy Council relied upon the following observation made in its earlier decision in Lakshman Dada Naik vs Ramchandra Dada Naik 7IA 181 Its the High Court s reasons for making distinction between a gift and a devise are that the co parcener s power of alienation is founded on his right to a partition that that right dies with him and that the title of his co sharers by survivorship vesting in them at the moment of his death there remains nothing upon which the Will can operate
 It is submitted on behalf of the appellants that the same principle against alienability by will by a coparcener should also be applied to an impartible estate otherwise it will defeat the right of survivorship by birth which is the only right that is conceded to in favour of the junior members of the joint Hindu family
The decision in Lakhmi Chand s case supra or in Lakshman Dada s case supra does not relate to an impartible estate but to a coparcenary property and accordingly the principle of law that is applicable to a coparcenary property or to the coparceners is inapplicable to an impartible estate or to the holder thereof except as has been noticed earlier that an impartible estate is considered to be a joint family property to the extent of the junior members succeeding to the estate by right of survivorship
Similarly 1120 the decision of this Court in MN Aryamurthi vs ML Subbaraya Setty AIR 1972 SC 1279 relating to coparcenary property has no application to the instant case
It is urged on behalf of the appellants that to hold that the holder of an impartible estate has the power of dispossession by a will defeating the right of survivorship would be quite illogical
It may be that the holder of an impartible estate can defeat the right of survivorship by leaving a will and such right cannot be said to have been founded on any logical basis
But it has to be borne in mind that the whole concept of impartibility is a creature of custom including the right of alienation of the holder of such estate
In matters of custom it is hardly possible to justify every incident on some logical basis
Much reliance has been placed by the learned Counsel for the appellants on the decision of the Privy Council in Baijnath Prasad Singh vs Tej Bali Singh AIR 192 where it has been ruled that the fact that a Raj Estate is impartible does not make it a separate or self acquired property
It is submitted that if the impartible estate is not a separate or self acquired property as held by the Privy Council how then a holder of such an estate will have the power of disposition by a will
There can be no doubt that an impartible estate is not a separate or self acquired property of the holder thereof but it has been observed by Sir Dinshah Mulla in Shiba Prasad s case supra that it is clothed with the incidents of self acquired and separate property
One of such incidents is that the owner is entitled to dispose of the same in whatever manner he likes either by a transfer during his life time or by a will
The contention of the appellants proceeds on the assumption that the right of survivorship is an immutable right and cannot be defeated by the disposition by a will
Mr Mehta learned Counsel appearing on behalf of the respondents has invited our attention to a statement of law in Mulla s Hindu Law Fifteenth Edition Paragraph 2292 to show that a right of survivorship of a coparcener can be defeated in certain cases
Paragraph 2292 is as follows Para 2292
The right of a coparcener to take by survivorship is defeated in the following cases i Where the deceased coparcener has sold or mortgaged his interest in States where such sale or mortgage is allowed by law 1121 ii Where the interest of the deceased coparcener has been attached in his lifetime in execution of a decree against him
A mere decree obtained by a creditor not followed up by an attachment in the lifetime of the debtor will not defeat the right of survivorship unless the judgment debtor stood in the relation of father paternal grandfather or great grandfather to the surviving coparceners
This rule must be read subject to the provisions of sections 6 and 30 of the  in cases where those sections are applicable
iiiWhere the interest of the deceased coparcener has vested in the official Assignee or Receiver on his insolvency
On the annulment of insolvency the interest which vested in the Official Receiver revests under sec
37 of the Provincial Insolvency Act in the insolvent and if on that date he is not alive it goes to his heirs under the law
Thus the right of a coparcener to take by survivorship can be defeated under certain circumstances as enumerated in Mulla s Hindu Law in the passage extracted above
In paragraph 587 of Mulla s Hindu Law it is stated that an impartible estate is not held in coparcenary though it may be joint family property
Indeed this proposition has not been disputed by either party in this appeal
When under certain circumstances the right of a coparcener to take by survivorship can be defeated no exception can be taken if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will
The same principle as laid down in Raja Rao s case supra has been reiterated by the Privy Council in a later decision in Protap Chandra Deo vs Jagadish Chandra Deo 54 IA 289
In this case it has been ruled by the Privy Council that the holder of an impartible Zamindari can alienate it by will although the family is undivided unless a family custom precluding him from doing so is proved
In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur vs Shri Pushavathi Visweswar Gajapathi Raj  it has been held by this Court that it must be taken to be 1122 settled that a holder of an impartible estate can alienate the estate by gift inter vivos or even by a will though the family is undivided the only limitation on this power would flow from a family custom to the contrary or from the condition of the tenure which has the same effect
The same principle of law has been reiterated by this Court in Bhaiya Ramanuj Pratap Deo vs Lalu Maheshanuj Pratap Deo  In view of the above Privy Council decisions and of the decisions of this Court it must be held that the holder of an impartible estate has the power of alienation not only by transfer inter vivos but also by a will even though the disposition by will may altogether defeat the right of survivorship of the junior members of the family
The only question that remains to be considered by us relates to the alternative plea of the appellants that by virtue of a family custom the holder of the impartible estate with which we are concerned had no power of alienation either by a transfer inter vivos or by a will
In support of this contention our attention has been drawn on behalf of the appellants to a few correspondence between the original appellant since deceased and the political agent of the Mohanpur State
Before considering these correspondence a few facts are necessary to be stated
In 1938 the former Ruler that is the father of the deceased appellant during his life time gifted certain villages and properties by way of jiwai maintenance to his younger son
In that connection some correspondence ensued between the appellant and the political agent of the State
Before such a gift was made by way of jiwai to the younger son the original appellant by his letter dated August 1 1937 drew the attention of the political agent of the State to the proposed jiwai worth according to him Rs10000
It was stated in the said letter that despite his pointing out to his father that the proposal of jiwai was too big in proportion to the annual revenue of the State which was about Rs60000 his father turned a deaf ear to his earnest entreaties not to make such a jiwai
In that letter it was stated by him that big jiwai was proposed contrary to the prevailing practice in all the states and Talukas of this Agency and the past precedent of the State
In reply to the said letter the political agent by his letter dated August 13 1937 informed the appellant that he would not sanction any grant which the former Ruler wished to make to his younger son without any previous discussion with the appellant
The appellant also had written to his father on June 26 1938 inter alia stating that whatever he wished to give him in excessive in proportion to the income of the State and it is unreasonable and against the practice and rules prevailing in the State
The political agent it appears refused to sanction the proposed jiwai
Further it appears that the appellant 1123 had given consent to the execution by his father of a deed of gift dated February 9 1940 in favour of his younger brother for his jiwai
The political agent granted sanction to the said deed of gift as it was with the consent of the appellant
The appellants have placed much reliance upon the above documentary evidence in proof of their contention that there was a family custom prohibiting alienation by the Ruler of the State
The correspondence related only to the question of granting jiwai to the younger son of the former Ruler
It would appear from the correspondence that the entire attempt of the appellant was against the quantum of maintenance that was proposed to be granted by the Ruler to his younger son
It was not the contention of the appellant that in view of a family custom the Ruler had no right of alienation but his case was that in view of the annual revenue of the State the quantum of the jiwai would be out of proportion
It was only on this ground that he protested against the proposed jiwai
We do not think that the correspondence referred to above prove any custom of inalienability of the impartible estate
It is submitted on behalf of the appellants that as there was no instance of alienation till before the impugned deed of gift and the will it should be presumed that there was a family custom of inalienability of the estate
More or less a similar contention was made before the Privy Council in Protap Chandra Deo s case supra that the absence of any instance of a will purporting to dispose of the estate was itself sufficient evidence of the custom of inalienability of the estate
The said contention was overruled by the Privy Council
There must be some positive evidence of such a custom
Mere absence of any instance of alienation will not be any evidence of custom
Moreover as noticed already the correspondence which are being relied upon as the evidence of the alleged family custom of inalienability are far from being such evidence for the only question that formed the subject matter of all this correspondence related to the propriety of the quantum of jiwai
Accordingly we hold that the appellants have failed to prove that there was any family custom of inalienability of the estate
No other point has been urged in this appeal by either party
For the reasons aforesaid the judgment and decree of the High Court are affirmed and this appeal is dismissed
There will however be no order as to costs in this Court
SL Appeal dismissed


Summary:
 The appellant who had enrolled himself as an Advocate on 24277 and practised law till 1481 when he was appointed in the service of the Hindustan Shipyard an undertaking owned by the Government of India applied for the post of a District Munsif in pursuance of an advertisement dated 25484 issued by the respondent No 1 Andhra Pradesh Public Service Commission for filling up by direct recruitment of vacancies reserved for the Scheduled Castes
His application was rejected by the respondent No I as in its opinion he did not fulfil the necessary qualification fixed under Rule 12 of the Andhra Pradesh State Judicial Service Rules and was therefore ineligible for appointment
The appellant challenged the aforesaid decision before the High Court
A Single Judge allowed the writ petition and directed the first respondent to consider the appellant s candidature
The Letters Patent Appeal filed by the respondent was allowed and the writ petition was dismissed
In the appeal by special leave the appellant contended that as he had practised for a requisite period immediately prior to his entering 36 service of Hindustan Shipyard an undertaking owned by the Government of India he must be held to be qualified for appointment that no distinction ought to be made between experience acquired in Government service and the one in any other service whether public or private in nature that this discrimination was illegal and ultra vires and that the word Government should be deleted from the proviso to Rule 12 so as to save it from the vice of discrimination
The respondents opposed the appeal on the ground that the appellant was not in Government service
Dismissing the appeal  HELD 11 There is no doubt that the expression Government service mentioned in the proviso to Rule 12 of the Andhra Pradesh State Judicial Service Rules includes service either under the State Government or the Government of India
Sub rule 15a of Rule 2 explains that the expression recruited direct would refer to a candidate including a person in the service of Government of India or the Government of State to be recruited directly subject to service conditions mentioned therein
39A B In the instant case the Hindustan Shipyard although a fully owned undertaking of the Central Government cannot be equated with the Government or State except for the purpose of part III of the Constitution
The undertaking has a separate legal entity
The expression State does not by reason of Article 12 of the Constitution include the undertaking except for the limited purpose which is not attracted in the present case
The appellant who is in the service of Hindustan Shipyard and is wt serving directly the Union of India cannot take advantage of the proviso
38E F 12 What is forbidden by the Constitution is discrimination between persons who are substantially in similar circumstances or conditions
An equal treatment does not arise as between persons governed by different conditions and different sets of circumstances
It is obviously permissible to classify persons into groups and such groups may be differently treated if there is a reasonable basis for such difference or distinction
39C D Having regard to the difference in the nature of service under the Government and that of the other services therefore a classification based on that line cannot be struck down on the ground of illegal discrimination
The Proviso to Rule 12 must be held to be valid and effective
39D E 37