Civil Appeals Nos
209  2280 of 1970
No 20970 arising out of certificate  CA
No 228070 arising out of special leave from the common judgment and decree dated the 28th February 1968 of the Patna High Court in Appeal from Appellate Decree No 1055 of 1962 SC Misra and UP Singh for the Appellant in CA No 20970 and for the Respondent in CA
No 228070
Sinha SK Sinha and ML Chibber for the Appellant in CA
228070 and for the Respondent in CA 209 of 1970
The Judgment of the Court was delivered by MISRA J
These two connected appeals are directed against a t common judgment dated 28th February 1968 of the Patna High Court the first one by certificate and the second by special leave
421 Bhaiya Rudra Pratap Deo was the holder of an impartible A estate known as Nagaruntari estate in the district of Palamau
The succession to the estate was governed by the rule of lineal primogeniture
Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members of the family were entitled only to maintenance grants subject to resumption on extinction of an heir in the male line of the eldest branch
It appears that the estate was accorded protection under the Chota Nagpur Encumbered Estates Act 1876 on the application of Bhaiya Rudra Pratap Deo as per notification dated 17th March 1932 published in the Bihar Gazette dated 23rd March 1932 and after liquidation of debt it was released from the operation of Chota Nagar Encumbered Estates Act in October 1945
Eventually the estate vested in the State of Bihar under the Bihar Land Reforms Act 1950 in pursuance of a notification dated 5th of November 1951
Harihar Pratap Deo who was the younger brother of Bhaiya Rudra Pratap Deo had died in a state of jointness with his brother Bhaiya Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha and one other step son who also died in 1937 unmarried
Lalu Maheshanuj Pratap Deo demanded land for khorposh maintenance from Bhaiya Rudra Pratap Deo in 1950
Bhaiya Rudra Pratap Deo executed a deed of maintenance on 14th of April 1952 in respect of eight h villages in favour of Lalu Maheshanuj Pratap Deo
A dispute however arose between the parties in respect of the plots of village Sigsigi which culminated in a proceeding under section 144 Cr
The proceedings were however later converted into proceedings under section 145 Cr
PC which ended in favour of Lalu Maheshanuj Pratap Deo on 4th of July 1955
Bhaiya Rudra Pratap Deo feeling aggrieved by the order filed a suit which has given rise to the present appeals and which was later on numbered as suit No 16 of 1955 against Lalu Maheshanuj Pratap Deo alias Nila Bacha  in respect of the agricultural plots of village Sigsigi and the grains in the custody and control of the police Bisrampur district Palamau
The case of the plaintiffs as follows After the vesting of the estate in the State of Bihar the defendant approached him with a request that the plaintiff should give him the villages Bhojpur Jaungipur Chitri Rohila Bhandar and Khundra but the plaintiff declined to do so as section 12A of the Chota Nagpur Encumbered Estate Act and the provisions of the Bihar Land Reforms Act stood as a bar
422 The defendant however implored and wanted to take a chance and try his luck
On the beseechment of the defendant the plaintiff allowed him six villages only namely Bhojpur Jaungipur Chitri Rohila Bhandar and Khundra subject to acceptance of the State of Bihar
There was neither any proposal for villages Sigsigi and Patihari nor had the plaintiff ever agreed to give these two villages to the defendant
A formal unstamped and unregistered deed of Khorposhmaintenance was no doubt created in respect of only six villages on 14th of April 1952 subject to the approval of the authorities
The defendant however in collusion with the plaintiff s employees and ex employees and without the knowledge and information of the plaintiff managed to use the plaintiff s signature and manufactured evidence to show that the two villages Sigsigi and Patihari had also been included in Khorposh grant and included these two villages in the formal deed dated 14th of April 1952 in collusion with the typist and designing persons by perpetrating fraud on the plaintiff
When the plaintiff came to know of the fraud and fabrication of the defendant he lodged protest before the authorities and the authorities refused to accept the plea of khorposh and they ordered the villages to be included in the compensation list of the plaintiff and the rent of all the sirjot lands was fixed in favour of the plaintiff
Thus no khorposh grant remains even in respect of the six villages and such grants if any are void under section 12A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act
Even assuming for the sake of argument that the two villages Sigsigi and Patihari were included in the deed dated 14th of April 1952 the transfer is void ab initio and no title accrued to the defendant on that basis
At the time of proceedings under section 145 Cr
PC paddy crops grown by the plaintiff were standing and on the petition of the plaintiff the same were harvested by the police
Subsequent cultivation was also done through the police Bisarampur and the plaintiff is entitled to all the grains in the custody of the police
On these allegations the plaintiff sought a declaration that the land in dispute detailed in Schedule A situated in village Sigsigi was the khasjot land of the plaintiff that the defendant had no concern therewith and that he the plaintiff  was entitled to the grain or the value thereof as detailed in Schedule B
The plaintiff also claimed a relief for possession over the disputed plots 423 and the grain or the value thereof
A relief for mesne profits to be A ascertained in subsequent proceedings was also claimed
Bhaiya Rudra Pratap Deo the plaintiff died during the pendency of the suit and his two sons and four widows got themselves substituted in his place
His eldest son Bhaiya Ramanuj Pratap Deo filed a petition before the Trial Court for substitution in place of his deceased father alleging that the Nagaruntari Estate was an impartible estate governed by the rule of lineal primogeniture under which the eldest son alone is entitled to succeed his father
His prayer was allowed
Subsequently the second son of Bhaiya Rudra Pratap Deo and his widows filed a petition for being substituted
The Sub Judge impleaded all these persons provisionally as plaintiffs ordering to strike out an issue as to which of them was or were entitled to the fruits of the litigation if eventually the court decided the suit as against the defendant
The conduct of the suit was given to plaintiff No I under the provisions of rule 11 order 1 CPC
The suit was contested by the defendant on the following grounds amongst others The Nagaruntari estate was never an impartible estate governed by the rule of lineal primogeniture but in its origin it was a non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of a revenue paying estate and thus it became an ordinary joint family property partible amongst the members
His father died in a state of jointness with Bhaiya Rudra Pratap Deo sometime in 1934 when he was only four years old and he was living under the guardianship of his uncle
He was made to carry an impression due to propaganda made by his uncle Bhaiya Rudra Pratap Deo that Nagaruntari estate was an impartible estate and being under this wrong impression he subsequently filed an application against his uncle in 1950 claiming khorposh grant of 22 villages including village Sigsigi from out of Nagaruntria estate and also partition of the self acquired property of his grand father
That application was however rejected
The Nagaruntari estate later on vested in the State of Bihar under the Bihar Land Reforms Act
Thereafter Bhaiya Rudra Pratap Deo of his own accord executed a khorposh deed in his favour in respect of eight villages including Sigsigi and got it typed in his house and sent it to him with a direction to take possession of the eight villages and accordingly he took possession of the same
The defendant denied that he had fraudulently got Sigsigi and Patihari villages inserted in the Khorposh deed or that this deed was illegal
The defendant 424 claimed that he was a co sharer with the plaintiff and was entitled to remain in possession of all the eight villages covered by the Khorposh deed till partition was made The Subordinate Judge held that by the khorposh deed Bhaiya Rudra Pratap Deo had in fact given to the defendant in khorposh eight villages including village Sigsigi but the defendant did not acquire any interest in the said land on the basis of the khorposh deed as the same was against the provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act that Nagaruntari estate was an impartible estate governed by the rule of lineal primogeniture but it ceased to be so after the enforcement of the in June 1956 and since Bhaiya Rudra Pratap Deo died after this Act came into force the succession to the estate would be governed by survivorship as contemplated by section 6 of the 
As such the plaintiffs as well as the defendant would succeed
The defendant is thus entitled to remain in possession of the said property as one of the co owners and the plaintiffs could not claim an exclusive khas possession till the matter is decided in a partition suit
On these findings he dismissed the suit Feeling aggrieved by the decision heirs and legal representatives of Bhaiya Rudra Pratap Deo the deceased plaintiff preferred an appeal
On appeal the District Judge confirmed the findings of the Trial Court
He however held that the grant of khorposh by Rudra Pratap Deo after the release of the estate from the management of the Chota Nagpur Encumbered Estates Act was void under section 12A of the Act as the khorposh grant was not made with the sanction of the Commissioner and also because the possession of the ex proprietor with respect to the Bakasht land became that of a raiyat under the State of Bihar and the raiyati right was not transferable without a registered document
the possession of the defendant was on the basis of a void document
The learned Judge further held that the document of khorposh being unregistered was not admissible in evidence but it could be used for a collateral purpose of explaining the nature of possession that the defendant being a minor member of the family was put in possession of the property covered by it by the holder of the estate and his possession was as khorposh holder maintenance holder and not as a trespasser and he was not liable to be evicted
The Nagaruntari estate was found to be an impartible estate where succession was governed by 425 the rule of lineal primogeniture
But after the death of Bhaiya A Rudra Pratap Deo section 6 of the became applicable and the devolution of the property would not be governed by the rule of lineal primogeniture but by the ordinary rule of succession as is provided under the 
It was also held that Rudra Pratap had died in a state of jointness with the defendant and after came into force the Nagaruntari estate became an ordinary joint family property of the parties and that the possession of the defendant was as a co sharer
On these findings the appeal filed by the plaintiffs was dismissed by the District Judge
Undaunted the plaintiffs preferred a Second Appeal in the High Court which was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mesne profits for their share that is one half in addition to the entire mesne profits to which Rudra Pratap was entitled in his lifetime
Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them
First we take up appeal No 209 of 1970 filed by Bhaiya Ramanuj Pratap Deo heir and legal representative of deceased plaintiff
Mr S C Misra assisted by Mr UP Singh raised a number of contentions
His first contention is that the rule of lineal primogeniture survived even after the enforcement of the 
To appreciate the contention it will be necessary to examine the relevant provisions of the Act
Section 41 a of the Act lays down 4
1 Save as otherwise expressly provided in this Act G a any text rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act
 426 Section 6 of the Act provides 6
When a male Hindu dies after the commencement of this Act having at the time of his death in interest in a Mitakshara coparcenary property his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act Provided that if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship
 A bare perusal of section 4 would indicate that any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of with respect to any matter for which provision is made in the Act
If rule of lineal primogeniture in Nagaruntari estate is a customary one it will certainly cease to have effect even though it was part of Hindu law
Faced with this situation the learned counsel for the appellant invokes section 5 ii of the 
In so far as it is material for the present discussion it reads 5
This Act shall not apply to i    ii any estate which descends to a single heir by the terms of any covenant or agreement entered into or by the commencement of this Act
 This section protects an estate which descends to a single heir by the terms of any covenant or agreement entered into or by the terms of any enactment in as much as is not applicable to such an estate
This section stands as an exception to section 4 of the Act referred to above
It is urged by Shri Misra that the rule of lineal primogeniture in the instant case is a statutory rule and not a customary rule and 427 therefore it is saved by section 5 ii of the 
A In support of his contention he placed reliance upon Bengal Regulation 10 of 1800
Bengal Regulation 10 of 1800 reads as under i By Regulation 11 1798 the estates of proprietors of land dying intestate are declared liable to be divided among the heirs of the deceased agreeably to the Hindu or Muhamdan laws
A custom however having been found to prevail in the jungle Mahals of Midnapore and other districts by which the succession to the landed estates invariably devolves to a single heir without the division of the property the Governor General in Council has enacted the following rule to be in force in the Provinces of Bengal Bihar and Orissa from the date of its promulgation
Regulation 11 1798 2 shall not be considered to supersede or affect any established usage which may have obtained in the jungle Mahals of Midnapore and other districts by which the succession to landed estates the proprietor of which may die intestate has hitherto been considered to devolve to a single heir to the exclusion of the other heirs of the deceased
In the Mahals in question the local custom of the country shall be continued in full force as heretofore and the Courts of Justice be guided by it in the decision of all claims which may come before them to the inheritance of landed property situated in those Mahals
 The following propositions are clearly deducible from this Regulation F a The Regulation takes note of an earlier Regulation Regulation No 11 of 1798 according to which the estate of a proprietor of land dying intestate was to be divided amongst his heirs according to his personal law
b It further notes that a custom had been found to pre vail in certain areas by which land devolved on a single heir
c It then lays down that such a custom would not be deemed to have been superseded by Regulation No 11 428 of 1798 and that in the said areas such custom shall be rule of decision
This analysis of the Regulation leads to the further preposition that it did not by its own force declare that any estate would descend to a single heir
All that it did was to keep alive the custom sanctioning the rule of primogeniture entailing impartibility of the estate
The rule of custom was thus recognised as such and no estate by the terms of the Regulation itself was made to descend to a single heir
In this view of the matter clause ii of section 5 of the does not cover such a custom
Alternatively it was argued that even if the rule of lineal primogeniture did not survive after the enforcement of the the suit land will be deemed to be settled with the plaintiff under section 6 of the Bihar Land Reforms Act and the plaintiff became the exclusive owner of the suit land
Section 6 of the Bihar Land Reforms Act 1950 insofar as it is material for this case reads 6
1 On and from the date of vesting all lands used for agricultural or horticultural purposes which were in khas  possession of an intermediary on the date of  such vesting including a i proprietor s private lands let out under a lease for a term of years or under a lease from year to year referred to in Sec
116 of the Bihar Tenancy Act 1885 8 of 1885 ii landlord s privileged lands let out under a registered lease for a term exceeding one year or under a lease written or oral for a period of one year or less referred to in Sec
43 of the Chota Nagpur Tenancy Act 1908 Ben
Act 6 of 1908 b lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lease of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock and 429 c lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas  possession thereof shall subject to the provisions of Sec
7 A and 7 be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat  under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner
 This section only contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold it as a raiyat under the State having occupancy rights in respect of such land subject to payment of fair and equitable rent
But if the intermediary was in possession in a representative capacity on behalf of the other coparceners as a necessary corollary the land will be deemed to be settled with all those persons on whose behalf one particular intermediary was in khas possession
Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to be settled with all those coparceners and they shall all become raiyats
It is nobody s case that there has been any partition between the plaintiff and the defendant
The joint status of the family continued and therefore after the death of Bhaiya Rudra Pratap Deo his interest devolved on other coparceners as well
F It was next contended for the appellant that the defendant got the land under a khorposh deed which was void ab initio and therefore the status of the defendant was that of a trespasser and he was liable to ejectment on the suit of the plaintiff
According to the appellant the khorposh deed was void for two reasons firstly because there was no sanction of the Commissioner for the deed as contemplated by section 12 A of the Chota Nagpur Encumbered Estates Act 1876 secondly because the deed was neither stamped nor registered In order to appreciate the first reason it is pertinent to read section 12 A insofar as it is material for the purpose of the case 12 A 1 When the possession and enjoyment of 430 property is restored under the circumstances mentioned in the first or the third clause of section 12 to the person who was the holder of such property when the application under section 2 was made such person shall not be competent without the previous sanction of the Commissioner a to alienate such property or any part thereof in any way or b to create any charge thereon extending beyond his lifetime
2   3 Every alienation and charge made or attempted in contravention of sub section I shall be void
 Section 12 A would be attracted only when possession and enjoyment of the property is restored under the circumstances mentioned in the first or the third clause of section 12
It was for the plaintiff to show that the conditions contemplated by section 12 were satisfied which he has failed to do As regards the second reason the argument is based on section 17 read with section 49 of the Indian Registration Act
Section 17 of the Registration Act enumerates the documents requiring registration
Section 49 of the Registration Act provides that no document required by section 17 or by any provision of the to be registered shall be a affect any immovable property comprised therein b  c be received as evidence of any transaction affecting such property or conferring such power unless it has been registered
Khorposh maintenance deed is a document which requires registration within the meaning of section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property
Proviso to section 49 however permits the use of the document even though unregistered as evidence of any collateral transaction not required to be effected by registered instrument
In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession
431 Admittedly the defendant was a member of a joint Hindu family
Even in an impartible estate he was entitled to maintenance and the land in dispute had admittedly been given to the defendant by the impartible estate holder
His possession therefore cannot be taken to be the possession of a trespasser and the High Court in our opinion has erred in branding the defendant as a trespasser
This leads us to the last but not the least in importance contention raised on behalf of the appellants
According to Shri SCMisra the original plaintiff being holder of an impartible estate his estate would go to his successors alone and not to the other members of the family by survivorship
The learned counsel relied upon the following cases in support of his contention Rajah Velugoti Kumara Krishna Yachendra Varu  Ors
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors Raja Rama Rao vs Raja of Pittapur Hargovind Singh vs Collector of Etah Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards
In Rajah Velugoti Kumara Krishna Yachendra Varu and Ors
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors supra the first and the foremost case relied upon a contention was raised on behalf of the plaintiff that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartibility
In other words the contention was that the junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartibility was removed
This argument was repelled and this Court observed In our opinion there is no justification for this argument
The law regarding the nature and incidents of impartible estate is now well settled
Impartility is essentially the creature of custom
The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and therefore have no right of partition having regard to the very nature of the estate that is impartible
Secondly they have 432 no right to inerdict alienation by the head of the family either for necessity or otherwise
 This Court however further exposed the legal position in these words To this extent the general law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate though it may be ancestral joint family estate is clothed with the incidents of self acquired and separate property to that extent
The only vesting of the incident of joint family property which still attaches to the joint family impartible estate is the right of survivorship which of course is not inconsistent with the custom of impartibility
For the purpose of devolution of the property the property is assumed to be joint family property and the only right which a member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself
The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put an end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention express or implied on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate
 The observations extracted above are self explanatory and do not support the contention of the appellant lather they support the defendant respondent
In Raja Rama Rao vs Raja of Pittapur supra it was held An impartible Zamindari is the creature of custom it is of its essence that no coparcenary in it exists
Apart therefore from custom and relationship to the holder the junior members of the family have no right to maintenance out of it
 In Hargovind Singh vs Collector of Etah supra the Allahabad High Court quoted with approval the following observations made by the Privy Council in Baijnath Prasad Singh vs Tej Bali Singh  433 
Zamindari being the ancestral property of the joint family though impartible the successor falls to be designated according to the ordinary rule of the Mitakshara law and that the respondent being the person who in a joint family would being eldest of the senior branch be the head of the family is the person designated in this impartible raj to occupy the Gaddi In Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards supra it was laid down that an impartible zamindari was not inalienable by will or otherwise by virtue only of its impartibility and in the absence of proof of some special family custom or tenure attaching to the zamindari and having that effect
This question however need not detain us long as this Court had the occasion to consider the point at great length in Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and Ors
vs Shri Pushavathi Visweswar Gajapathi Raj and Ors
Dealing with the point in question this Court observed as follows Since the decision of the Privy Council in Shiba Prasad Singh vs 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
In the illuminating judgment delivered by Sir Dinshah Mulla for the Board the relevant previous decisions bearing on the subject have been carefully examined and the position of law clearly stated
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 that from the very nature of the property which is impartible 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 Rani Sartaj 434 Kuari vs Deoraj Kuari and the First Pittapur case Venkata Surya vs Court of Wards
Even the right of maintenance as a matter of right is not applicable as laid down in the Second Pittapur case Rama Rao vs Raja of Pittapur
The 4th right viz the right of survivorship however still remains and it is by reference to this right that the property though impartible has in the eyes 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 successionis the right of survivorship can be renounced or surrendered
It also follows from the decision in Shiba Prasad Singh s case that unless the power is excluded by statute or custom the holder of customary impartible estate by a declaration of his intention can incorporate with the estate self acquired immovable property and thereupon the property accrues to the estate and is impressed with all its incidents including a custom of descent by primogeniture
It would be noticed that the effect of incorporation in such cases is the reverse of the effect of blending self acquired property with the joint family property
In the latter category of cases where a person acquires separate property and blends it with the property of the joint family of which he is a coparcener the separate property loses its character as a separate acquisition and merges in the joint family property with the result that devolution in respect of that property is then governed by survivorship and not by succession
On the other hand if the holder of an impartible estate acquires property and incorporates it with the impartible estate he makes it a part of the impartible estate with the result that the acquisition ceases to be partible and becomes impartible
 Prior to the decision of the Privy Council in the case of Rani Sartaj Kuari vs Deoraj Kuari supra it was always assumed that a holder of an ancestral impartible estate cannot transfer or 435 mortgage the said estate beyond his own life time so as to bind the coparceners except of course for purposes beneficial to the family and not to himself alone
In 1888 however this view was shaken by the decision of the Privy Council in Rani Sartaj Kuari s case supra
In that case the holder of the estate had gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son
The son s plea however failed because the Privy Council held that if as their Lordships are of opinion the eldest son where the Mitakshara law prevails and there is the custom of primogeniture does not become a co sharer with his father in the estate the inalienability of the estate depends upon custom which must be proved or it may be in some cases upon the nature of the tenure
This decision was again affirmed by the Privy Council in the First Pittapur case supra
As a result of these decisions it must be taken to be settled that a holder of an impartible estate can alienate the estate by gift inter vivos or even by 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
Again in Chinnnthayal alias Veeralakshmi vs Kulasekara Pandiya Naicker  Anr
 it was held by this Court that to establish that an impartible estate has ceased to be joint family property for purposes 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 an intention to impress upon the zamindari the character of separate property
In Pushavathi Viziaram Gajapathi Raj Manne s cases supra this Court reiterated the same legal position
For the foregoing discussion this appeal must fail
This leads us to the other appeal filed by the defendant
The contention of the learned counsel for the defendant appellant in 436 this case is that the possession of the appellant was not as a trespasser but he was a maintenance holder on the khorposh grant maintenance given by the impartible estate holder
The High Court therefore erred in law in passing a decree for possession and mesne profits against the defendant appellant
It was further contended that the Nagaruntari estate was a partible estate
As regards the first contention it is open to a co sharer to remain in possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted
The learned counsel for the plaintiff respondent on the other hand urged that the defendant s possession was only as a trespasser
In support of his contention he placed reliance on Collector of Bombay vs Municipal Corporation of the City of Bombay  Ors
The majority took the view that The position of the Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market
Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the Corporation took possession of the land under the invalid grant
This possession had continued openly as of right and uninterruptedly for over 70 years and the Corporation had acquired the limited title to it and its predecessor in title had been prescribing for during all this period that is to say the right to hold the land in perpetuity free from rent but only for the purpose of a market in terms of the Government Resolution of 1865
In the instant case the defendant being a member of a joint Hindu family was entitled to maintenance from the impartible estate holder
The impartible estate holder executed a khorposh deed in favour of the defendant
If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant appellant
This being the position in the instant case the case cited above is not of much help to the plaintiff respondent
In 437 that case the sole basis of title itself was invalid
A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed
The execution of the document is not denied by the plaintiff
All that he says is that village Sigsigi was not included in the deed
We find considerable force in the contention raised on behalf of the defendant appellant that the High Court has decree in passing the decree for possession and mesne profits against the defendant
The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits
The second contention that disputed estate was a partible estate has been raised only to be repelled
The overwhelming evidence on the record leaves no room for doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957 In the result the first appeal No 209 of 1970 filed by the plaintiff is dismissed while the other appeal filed by the defendant No 2280 of 1970 is allowed and the decree passed by the High Court is set aside and the decree of the Trial Court as affirmed by the first appellate court is restored
In the circumstances of the case we direct the parties to bear their own costs
VDK CA 20970 dismissed 228070 allowed


Summary:
Bhaiya Rudra Pratap Deo was the holder of an impartible estate known as Nagaruntari estate in the district of Palamau
The succession to the estate was governed by the rule of lineal primogeniture
Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members were entitled only to maintenance grants subject to resumption on extinction of the male line of the eldest branch
Rudra Pratap Deo Singh had a younger brother Harihar Pratap Deo who died in a state of jointness with his brother Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha and one other step son who also died in 1937 unmarried
Bhaiya Rudra Pratap Deo executed a deed of maintenance Khorposh on 14th April 1952 in respect of eight villages
A dispute arose between the parties in respect of the agricultural plots of village Sigsigi
The proceedings under section 145 Crl
PC ended in favour of Nila Bacha
Bhaiya Rudra Pratap Deo therefore filed a civil suit No 16 of 1955 on the grounds that a a fraud was committed by including two villages namely Sigsigi and Patihari in the formal deed of khorposh dated 14th April 1952 and b that F the khorposh grants are void under section 12A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act 1950 and therefore no title accrued to the defendant on that basis
The suit was contested by the defendant on the grounds amongst others The Nagaruntari estate was never an impartible estate governed by the rule of primogeniture but in its origin it was a non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of a revenue paying estate and thus it became an ordinary joint family property partible amongst the members there was no fraud committed by any one and with the enforcement of the  being a co sharer with the plaintiff he was entitled to remain in possession of all the eight villages covered by the khorposh deed till partition was made
The learned Subordinate Judge held that by the khorposh deed the defendant was given all the eight villages but he did not acquire any interest in the 418 said land as the deed was against the provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act that the Nagaruntari Estate was an impartible estate governed by the rule of primogeniture but it ceased to be so after the enforcement of the Hinda Succession Act 1956 and since Bhaiya Rudra Pratap Deo died during the pendency of the suit and after this Act had come into force the succession would be governed by survivor ship and as such the legal representatives of the plaintiff as well as the defendant would succeed
The first appellate court held that a in as much as the khorposh grant was not made with the sanction of the Commissioner the grant was void under section 12A of the Chota Nagpur Encumbered Estates Act and b because the possession of the ex proprietor with respect to the Bakasht land became that of raiyat under the State of Bihar and raiyati right was not transferable without a registered document the possession of the defendant was on the basis of a void agreement and c that after the death of Bhaiya Rudra  Pratap Deo section 6 of the became applicable and both appellants and the defendants were entitled to succeed as co sharers
The second appeal by the plaintiffs was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap Deo were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mense profits for their share ie One half in addition to the entire mense profits to which Rudra Pratap Deo was entitled in his life time
Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them
Dismissing the plaintiff s appeal and allowing that of the defendant the Court  HELD 1
A bare perusal of Section 4 of the indicates That any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of with respect to any matter for which provision is made in the Act
If rule of lineal primogeniture in Nagaruntari estate is a customary one it will certainly cease to have effect even though it was part of Hindu law
426 DE 2
Section Sii of the protects an estate which descends to a single heir by the terms of any covenant or agreement entered into or by the terms of any enactment inasmuch as is not applicable to such an estate
Section 5ii stands as an exception to section 4 of the Act
426 G H The rule of lineal primogeniture in the instant case is not a statutory rule but a customary rule and therefore it is not saved by section 5ii of the 
426 H427 A 3
Section 6 of the Bihar Land Reforms Act only contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold it as a raiyat under the state having occupancy rights in respect of such land subject to payment of fair and equitable rent
But if the intermediary was in possession in a representative capacity on behalf of the other coparceners as a necessary corollary 419 the land will be deemed to be settled with all those persons on whose behalf A one particular intermediary was in khas possession
Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to be settled with all those coparceners and they shall all become raiyats
Here the joint status of the family continued and therefore after the death of Bhaiya Rudra Pratap Deo his interest developed on other coparceners as well
429 C F 4 1
Admittedly the defendant was a member of a joint Hindu family
Even in an impartible estate he was entitled to maintenance and the land in dispute had admittedly been given to the defendants by the impartible estate holders
This possession therefore cannot be taken the possession of a tresspasser
431 A 4 2
Section 12A of the Chota Nagpur Encumbered Estates Act 1876 would be attracted only when possession and enjoyment of the property is restored under the circumstances mentioned in the first or the third clause of section 12
The onus to prove that the conditions contemplated by section 12 were satisfied lay on the plaintiff which he failed to do
430 D E 4 3
The maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession
Khorposh maintenance deed is a document which requires registration within the meaning of section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property
Proviso to section 49 however permits the use of the document even though unregistered as evidence of any collateral transaction not registered to be effected by registered instrument
430F H 5 a A holder of an impartible estate can alienate the estate by gift intervivos or even by 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
Therefore it is not correct to say that the impartible estate would go to holder s successors alone and not to the other members or the family by survivorship
431 B C 435 C D b It must be taken to be well settled that the 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 by primogeniture it will be a part of the joint estate of the undivided family
433 D E In the case of an ordinary joint family property the members of the family can claim four rights 1 the right to partition 2 the right to restrain alienation by the head of the family except for necessity 3 the right to maintenance and 4 the right of survivorship
It is obvious that from the very nature of the property which is impartible the first three rights cannot exist
The fourth right viz the right of survivorship however still remains and it is by reference to this right that the property though impartible has in the eyes of law to be regarded as joint family property
The right of survivorship which can be claim 420 ed by the members of the undivided family which owns the impartible estate should not be confused with mere spec successionis
Unlike spec successionis the right of survivorship can be renounced or surrendered
433 G H 434 A B Rajah Velugoti Kumara Krishna Yachendra Varu and Ors
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors  Raja Rama Rao vs Raja of Pittapur 1918 LR 45 I A 148 Hargovind Singh vs Collector of Etah A I R 1937 All 377 and Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards 1899 LR 26 IA 83 discussed and distinguished
Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and ors
vs Shri Pushavathi Visweswar Gajapathi Raj and ors
  applied
Chinnathayal alias Veeralakshmi vs Kulasekara Pandiya Naicker and Anr   referred to
The overwhelming evidence on the record in the instant case categorically proves a that the disputed estate was an impartible estate till the death of the original plaintiff in 1957 and b it is open to a co sharer to remain in possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted and not a suit for possession of plots of one village and for mesne profits
436 B 437 B D Collector of Bombay vs Municipal Corporation of the City of Bombay and Ors   held inapplicable