Case: Rajah Velugoti Kumara Krishna Yachendra Varu &amp; Others Vs. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu &amp; Others

and were satisfied that the Estates included in the schedule to Act 2 of 1904 were impartible and the inclusion of the Estates therein is a legislative determination that they were impartible. In Pushavathi Vijayaram Gajapathi Raj v. Pushavathi Visweswar Gajapathi Raj, (1964) 2 SCR 403 = (AIR 1964 SC 118 ), this Court observed: Soon after these decisions were pronounced by the Privy Council, the Madras Legislature stepped in because those decisions very rudely disturbed the view held in Madras about the limitations on the powers of holders of impartible estates in the matter of making alienations of the said estates. That led to the passing of the Madras Impartible Estates Acts II.1902, II/1903 and II/1904. The Legislature took the precaution of making necessary enquiries in regard to impartible estates within the State and made what the legislature thought were necessary provisions in respect of the terms and conditions on which the said estates were held. 12. In these circumstances we see no reason to differ from the finding of the High Court that the Estate of Venkatagiri was an ancient impartible Estate by custom and was not made impartible for the first time under the agreement of 1889 or by the Madras Acts of 1902 and 1904. 13. The next question for determination is what is the effect of the Abolition Act on the rights and obligations of the members of the family in relation to the Venkatagiri Zamindari. According to the plaintiffs the property described in the B Schedule appended to the plaint did not vest under Section 3 (b) of the Abolition Act. The properties in the B Schedule include a building at Mount Road Madras a bungalow at Kalahasti and the District Judges bungalow at Nellore Town. These buildings are situated outside the territorial limits of the Venkatagiri Estate. Section 3 (a) and (b) of the Abolition Act states: x x x x x x 3 With effect on and from the notified date and save as otherwise expressly provided in this Act- (a) the Madras Estates Land (Reduction of Rent) Act, 1947 (Madras Act XXX of 1947) in so far as it relates to matters other than the reduction of rents and the collection of arrears of rent and the Madras Permanent Settlement Regulation, 1802 (Madras Regulation XXV of 1802), the Madras Estates Land Act, 1908 (Madras Act I of 1908), and all other enactments applicable to the estate as such shall be deemed to have been repealed in their application to the estate. (b) the entire estate (including all communal lands; porambokes: other non-ryoti lands; waste lands; pasture lands; lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances and the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1864, and all other enactments applicable to ryotwari areas shall apply to the estate; x x x x x x Section 1 (3), states: x x x x x x (3) It applies to all estates as defined in Section 3, clause (2) of the Madras Estates Land Act, 1908, except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, 1936. Section 2 (3) defines estate to mean . . . x x x x x x (3) estate means a zamindari or an undertenure or an inam estate; x x x x x x Section 2 (16) defines Zamindari as follows: x x x x x x (16) zamindari estate means- (i) an estate within the meaning of Section 3, clause (2) (a) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, clause (2) (b) or (2) (e) of that Act; or (ii) an estate within the meaning of Section 3, clause (2) (b) or (2) (c) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, clause (2) (e), of that Act. x x x x x x Section 3 (2) of Estates Land Act (Madras Act I of 1908) defined an estate to mean: (a) any permanently-settled estate or temporarily-settled zamindari; (b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; x x x x x x 14. Section 2 (2) of the Madras Impartible Estates Act, 1904 (Madras Act 2 of 1904) defines an `impartible estate as an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India. In relation to the Venkatagiri Zamindari the expression `Estate in Section 3 (a) of the Abolition Act refers obviously to the Venkatagiri Estate which till then was subject to the operation of the Madras Permanent Settlement Regulation and the Madras Estates Land Act. In relation to the Venkatagiri Zamindari Section 66 of the Abolition Act enacts that with effect from the notified date the Madras Impartible Estates Act, 1904 shall be deemed to have been repealed in its application to the Estate,. The question arises whether the word estate in Section 66 of the Abolition Act denotes the zamindari consisting of properties which stood transferred to the Government under the Abolition Act and properties which are not so transferred, or whether the expression `estate refers to only the Venkatagiri Estate which until the notification issued under the Abolition Act took effect was the subject of the Permanent Settlement Regulation and the Madras Estates Land Act.The High Court has given sufficient reasons in support of its view that the word estate in Section 66 of the Abolition Act denotes only the estate governed by the Permanent Settlement Regulation and the Estates Land Act and not any other part of the impartible zamindari. In other words the Abolition Act has no application to properties which are outside the territorial limits of the Venkatagiri Estate.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. In our opinion the contention of the plaintiffs that Venkatagiri Estate was not impartible by custom is untenable9. The document of 1889 also negatives the case of the plaintiffs that the Estate was made impartible for the first time by that document. The language of the document clearly shows that it only recognised the then subsisting impartible character of the Estate. In other words the document proceeds on the assumption that the Zamindari was made impartible by custom from the very beginning10. Counsel for the plaintiffs has been unable to show any term in this agreement to support his contention that it was only by virtue of that document that the parties agreed to call the Estate impartible. On the contrary the document indicates that there was clear recognition by the executants of the then character of the Estate as an impartible zamindariWe have already given reasons for the view that the Zamindari was impartible independently of the agreement of 1889 and that the agreement was no more than a conscious affirmation by the parties of what the position was previously in fact and in law. To put it differently the agreement of 1889 merely acknowledged and defined antecedent rights and antecedent obligations. It is therefore difficult to accept the contention of the plaintiffs that the three items of property in Schedule B have become partible properties. Since the Abolition Act did not affect these items the properties have continued to be what they were at the time of incorporation with the zamindari, namely the properties retain their impartible character15. We are also not impressed with the argument that as there was incorporation of the buildings with the original impartible estate the buildings ceased to have any impartible character when the impartibility of the parent estate was gone.It is true that the buildings which are outside the geographical limits of the Venkatagiri Zamindari cannot be brought within the definition of the Estate as defined in the Estates Land Act and the Abolition Act cannot therefore be made applicable to such buildings. But `the buildings have acquire the character of impartibility as a result of incorporation with the parent estate and that character cannot be lost unless the statute intervernes. Section 4 of the Impartible Estates Act itself contemplates parts of an Estate being impartibleIt is not possible to accept this principle in the present case. For, many times custom outlives the condition of things which give it birth. As observed by Lord Atkinson in Rao Kishore Singh v. Mst. Gahenabai, AIR 1919 PC 100:Rao Kishore Singh v. Mst. Gahenabai, AIR 1919 PC 10017. We are also unable to accept the contention of the plaintiffs 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 junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartibility was removed. In our opinion there is no justification for this argumentThe law regarding the nature and incidents of impartible estate is now well settled. Impartibility is essentially a 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 it is impartial. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. This, of course, is subject to Section 4 of the Madras Impartible Estates Act in the case of impartible estates governed by the Act. The right of junior members of the family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. This is now made clear by the Judicial Committee in Commr. of I.-T., Punjab v. Krishna Kishore, 68 Ind App 155 = (AIR 1941 PC 120  ), App 155 = (AIR 1941 PC 120  ), 68 Ind App 181 = (AIR 1942 P C 3).The income of the impartible estate is the individual in- come of the holder of the estate and is not the income of the joint familyUnder the agreement of 1889, plaintiffs 1 to 4 are entitled to an allowance of Rs. 1,000 if paid out of the income of the zamindari, that is to say, the income of the Venkatagiri Estate strictly so called and the income of the properties which did not get transferred to the Government under the Abolition Act.The Madras Impartible Estates Act, 1904, provides by Sec. 9 for the payment of maintenance of junior members of an impartible zamindari family:Where there is in force an agreement relating to payment of maintenance, the Act does not authorise reduction of the quantum of maintenance provided by such agreement except in the circumstances stated in Section 14 (2) - circumstances which are not applicable to the present case. It is admitted that junior members of the Venkatagiri family were receiving maintenance, under the agreement of 1889 until the coming into force of the Abolition Act20. Under the agreement of 1889, plaintiffs 1 to 4 are entitled to payment of Rs. 1,000 per month from the income of the Venkatagiri Zamindari. That part of the zamindari which consisted of the Venkatagiri Estate has been converted into compensation deposited and to be deposited in the office of the Tribunal. The first defendant and plaintiffs 1 to 4 would also be entitled to ryotwari pattas under Sections 12 and 47 of the Abolition Act. It is not disputed that plaintiffs 1 to 4 have been paid Rupees 75,000 when the second instalment of compensation is deposited by the Government. If additional compensation is allowed under Section 54-B of the Abolition Act, plaintiffs 1 to 4 would get a part of such additional compensationIn other words, the plaintiffs 1 to 4 were held entitled to recover from defendant No. 1 the difference between the interest payable on the compensation amount and the sum of Rs 1,000 per mensem and the difference was made a charge on items 1, 14 and 16 of Schedule B propertiesIn other words, the plaintiffs 1 to 4 were held entitled to recover from defendant No. 1 the difference between the interest payable on the compensation amount and the sum of Rs 1,000 per mensem and the difference was made a charge on items 1, 14 and 16 of Schedule B propertiesThe Subordinate Judge, Nellore, held in O. S. No. 30 of 1932 that plaintiffs 5 and 6 were not the purusha santathi of Venugopal. The decision was affirmed by the High Court in ILR (1939) Mad 622 = (AIR 1939 Mad 614) and an appeal against the judgment of the High Court was dismissed by the Judicial Committee. That decision is binding upon the plaintiffs 5 and 6 on the ground of res judicata. The seventh plaintiff as the son of the 5th plaintiff can claim no higher rights than the 5th plaintiffThis clause provides that on the death of any male member entitled to maintenance allowance under the deed without leaving any male issue either by birth or adoption, the allowance which was received by that person should go according to Hindu Law to the gnatis who in the same line as the deceased are nearest to such deceased member. Plaintiffs 5 to 7 alternatively claimed to be the gnatis of Venugopal. In our opinion, it is not open to plaintiffs 5 to 7 to re-agitate the matter which should have been pressed as a ground of claim in the previous suit. In any case the argument is without substance.It is true that the word `gnati in Sanskrit literally interpreted includes a brother also. But in the context of the particular passage in the agreement, it could not have been the intention of the parties that when there was a failure of legitimate or adopted son, gnatis including illegitimate sons would take the allowance.The question in reality is not whether an legitimate brother is a gnati or not for purposes of succession, but whether the word is used in that unusual sense in the agreement. As pointed out in the previous case, this clause has no application and the case is really governed by the earlier clause already referred to. We accordingly reject the argument of plaintiffs 5 to 7 on this aspect of the case21. Lastly, it was contended on behalf of plaintiffs 1 to 4 that they were entitled to one-third share of the golden howdah in sub-item 8 of item No. 8 of B Schedule. The only evidence upon which plaintiffs relied was cls. 5 and 6 in the will of Rajagopalkrishna dated 22nd September, 1910,These clauses make it clear that the golden howdah had been divided and nothing was left for further division. In our opinion the Division Bench was right in taking the view that the plaintiffs 1 to 4 are not entitled to division of the golden howdah.