Case: Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo and Others

case, the holder of the estate and gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son. The sons 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 the 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 [(1918) LR 45 IA 148 : AIR 1918 PC 81 : 16 ALJ 833]. 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 conditions of the tenure which has the same effect.31. Again in Chinnathayi alias Veeralakshmi, v. Kulasekara Pandiya Naicker [1952 SCR 241 : AIR 1952 SC 29 : 1952 SCJ 1 ] 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 giver up the chance of succeeding to the estate. In each case it is incumbent on the plaintiff to adduce a satisfactory grounds for holding that the joint ownership of the defendants branch in the estate was determined so that it became the separate property of the last holders branch. The test to be applied is whether the facts show a clear intention to renounce or surrender an interest in the impartible estate or the relinquishment of the right succession and an intention to impress upon the zamindari the character of separate property. In Pushavathi Viziaram Gajapathi Raj Manne case [(1964) 2 SCR 403 : AIR 1964 SC 118 ] this Court reiterated the same legal position.32. For the foregoing discussion this appeal must fail.33. This leads us to the other appeal filed by the defendant. The contention of the learned counsel for the defendant-appellant in 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. This High Court, therefore, erred in law passing a decree for possession and mesne profits against the defendant-appellant. It was further contended that the Nagaruntari Estate was a partible estate.34. As regards the first contention it is open to a co-sharer to remain in the 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 plaintiff-respondent on the other hand urged that the defendants possession was only as a trespasser. In support of his contention he placed reliance on Collector of Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469 : 1952 SCR 43 : 1951 SCJ 752]. The majority took the view that :The position of the Corporation and its predecessor it 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 the title of the Corporation took possession of the land under the invalid grant. This possession had continued openly, as if of right and uninterruptedly for over 70 years and the Corporation had acquired the limited title to it and is predecessor in title and had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent out only for the purposes of the market in terms of the Government Resolution of 1865.35. In the instant case the defendant being a member of 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 that case the sole basis of the 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.36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred 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.37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.

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

Explanation:
0[ds]22. As regards the second reason, the arguments is based on Section 17 read 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 provisions ofthe Transfer of Property Act, 1882 to be registered shall (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.23. Admittedly the defendant was a member of a joint Hindu family, Even in an impartible estate 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 aof Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469   : 1952 SCR 43   : 1951 SCJIn the instant case the defendant being a member of 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 that case the sole basis of the 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.36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred 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.37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.