Case: State Of U.P Vs. Raj Kumar Rukmani Raman Brahma

2. The respondent made an application before the Rehabilitation Grants Officer, Mirzapur under Section 79 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 to obtain the determination and payment of rehabilitation grant to him. The case of the respondent was that he was the son of the late Raja Sharda Mahesh Narain Singh Shah of Agori Barhar, Raj, Tehsil Robertsgunj in Mirzapur district. Raja Anand Brahma Shah who was a Malgujar of more than Rs. 10,000 annually executed Gujaranama deeds in favour of his younger brothers and his mother separately in the year 1949. By these deeds certain villages were transferred by the Raja to the Raj Kumar and the mother in lieu of their rights of maintenance. One of such Gujaranamas was executed by Raja Anand Brahma Shah in favour of respondent, Raj Kumar Rukhmini Raman Brahma who is one of his younger brothers. The document was executed on October 5, 1949 and registered on January 18, 1950. The application of the respondent before the Rehabilitation Grants Officer was opposed by the appellant. The objection of the appellant was that the transfer in favour of the respondent cannot be legally recognised in view of Section 23 (1) (a) of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act 1 of 1951) (hereinafter called the Act) for the purpose of assessing the amount of rehabilitation grant. By his order dated January 28, 1961 the Rehabilitation Grants Officer held that the respondent was entitled to rehabilitation grant. The appellant preferred an appeal against the order of the Re-habilitation Grant Officer. The appeal was heard by the Additional Civil Judge, Mirzapur, who rejected the objection of the appellant and dismissed the appeal. The appellant took the matter in revision to the Allahabad High Court, but the Revision Application was dismissed on February 16, 1965.

Reasoning: In our opinion there is no warrant for this argument.Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi, 59 Ind App 331 = (AIR 1932 PC 216  ) it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity (3) the right of maintenance; and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deorai Kuari. (1887-1888) 15 Ind App 51 (PC) and the First Pittapur case (1899) 26 Ind App 83 (PC).The right of maintenance and the right of survivorship however, still remain and is by reference to these rights that the property though impartible has, in the eve of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successions. Unlike spes successionis the right of survivorship can be renounced or surrendered.In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must beno case has been made out for remand because the appellant has not denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Arand Brahma Shah. No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer, the award of the Rehabilitation Grants Officer was challenged only on a question ofour opinion there is no warrant for this argument.The relevant portion of the Gujaranama deed dated October 5, 1949I Shri Raja Anand Brahma Shah son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj, Rampur Estate pargana Barhar, Tehsil Robertsganj, District Mirzapur, am the proprietor of Angori Raj District Mirzapur which is an impartible estate. That according to law and custom the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and the younger sons have a right to maintenance and they are given a reasonable share of the estate in lieu of the right of maintenance so as to enable them to pass their life in accordance with their status. The estate is under an obligation to provide maintenance of this type. Therefore it is obligatory upon me also to make some provision for the maintenance of my younger brother Shri Rukmini Raman Brahmas by giving him some property. He also desires that some maintenance should be provided for him. Therefore I out of my sweet will and willingness do hereby execute this document in the terms following:1. That from todays date I give the property detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his right of maintenance and I deliver to him the proprietary possession of the propertiesThat the transferee for maintenance shall pay land revenue and other customary dues and taxes to the Government. The jagir shall not be responsible for the payment of the same.5. That the transferee for maintenance may get his name entered in the revenue papers. We shall have no objection in this regard.In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must be