Patna High Court
Jitendra Pratap Bahadur Sahi vs Bhagwati Prasad Singh on 16 April, 1956
Equivalent citations: AIR1956PAT457, AIR 1956 PATNA 457
JUDGMENT Kanhaiya Singh, J.
1. These are two analogous appeals involving almost common questions of law and fact. Appellant 1 in the First Appeal is the respondent in the Letters Patent Appeal. Since the result of the First Appeal will determine the decision in the Letters Patent Appeal, I shall consider that appeal first.
2. The First Appeal is by the plaintiffs from the judgment and decree dated 16-12-1954, of Mr. S. G. Waris, Additional Subordinate Judge, Gaya, dismissing the plaintiffs' suit concerning the succession to the impartible estate of Tamkohi in Uttar Pradesh. The said estate is comprised of immoveable properties situate in the districts of Deoria, Gorakhpur and Basti in the State of Uttar Pradesh and in the district of Saran and Gaya in the State of Bihar. The following admitted genealogy shows the descent of the family from the common ancestor and will help in appreciating the respective cases of the parties:
RAJA KRISHNA PRATAP BAHADUR SAHI (Died on 21-12-1894) |
----------------------------------------------------------
| |
Raja Satrujit Pratap Bahadur Sahi Kuer Sarabjit Pratap Bahadur Sahi
(died on 10-10-1898) (died in April 1934)
=Maharani Padam Kuer |
| Chhaterpati Pratap Bahadur Sahi
------------------------------- alias Hira Saheb
| | (died in May 1949)
Raja Indrajit Pratap Bahadur Sahi Babui Horil Kuer |
(died on 12-6-1947) (died in july 1915) Jitendra Pratap Bahadur Sahi
=Jagdishwari Kuer | (defendant 1)
(died on 15-10-50) Shri Bhagwati Prasad Singh |
(pltiff. 1) |
-------------------------------------------------------
| | |
Khagendra Pratap Bahadur Sahi Bisheshwar Pratap Bahadur Sahi Navendra Pratap Bahadur Sahi
(defendant 2) (defendant 3) (defendant 4)
It is common ground that the Tamkohi Raj is an ancestral impartible estate, succession to which is governed by a special family custom of lineal primogeniture and rule of survivorship, subject to the right of junior members to receive maintenance. The parties are governed by the Mitakshara school of Hindu law. The last male holder of the estate was Raja Indrajit Pratap Bahadur Sahi who died on 12-6-1947. Bhagwati Prasad Singh, plaintiff 1 is his sister's son, Jitendra Bahadur Sahi, defendant 1 is the grandson of the full-brother of the father of the last male holder.
There is a competition between the two as to which of them is entitled in law to succeed to the estate in dispute. According to the rule of lineal primogeniture, Chaterpati Pratap Bahadur Sahi, father of defendant 1, being the eldest male member of the seniormost line of the family of Raja Indrajit at the time of the latter's death was entitled to succeed to the Tamkohi estate.
Plaintiff 1 claimed this estate substantially on two main grounds firstly, that there was a severance of the joint status, and the family of defendant 1 had separated, with the result that the Tamkohi estate constituted a separate property of Raja Indrajit, the last male holder, and, secondly, that before his death he had conferred on his wife Jagdishwari Kuer by a will a widow's estate, which, it was contended, had the effect of terminating the joint status and destroying the rule of lineal primogeniture and survivorship, defeating thereby the rights of all the members of the junior branch.
The plaintiff's case may be stated as follows: Kuer Sarabjit Pratap Bahadur Sahi, grandfather of defendant 1, had separated from Raja Indrajit and the entire properties constituted the separate property of the said Raja. Raja Indrajit had held the estate as his separate property. Alternatively, it is averred that the holder of the impartible estate had unfettered right of disposal over the Tomkohi estate, and, in exercise of this right, he executed on 15-12-1939, a registered will in favour of his wife Jagdishwari Kuer creating in her favour a Hindu widow's estate.
By the said will, he also gave her authority to adopt which, however, was never exercised. The plaintiffs assert that by reason of the grant of a Hindu widow's estate to Rani Jagdishwari Kuer the whole estate vested in her and ceased to be joint family property, with the result that the junior members were disinherited, since there was no family property over which the rule of survivorship could operate. About eight years after the will, he died issueless on 12.6-1947, leaving him surviving his widow Jagdishwari Kuer, his mother Maharani Padam Kuer, his sister's son Bagwati (plaintiff 1) and his nearest agnate defendant 1.
Jagdishwari Kuer, his widow, entered into possession of his estate, without taking any probate of the will and died on 15-10-1950, and on her death the estate devolved by the rule of inheritance on the mother of the last male holder, Maharani Padam Kuer, his next heir, who obtained from the High Court letters of administration on 18-3-1952 and died a little more than a year after on 18-5-1953. On her death, the estate devolved upon Bhagwati Prasad Singh who, being his sister's son was by virtue of the Hindu Law of Inheritance (Amendment) Act 2 of 1929, the preferential heir.
The present suit was commenced by Maharani Padam Kuer and Bhagwati Prasad Singh. During the pendency of the suit Maharani Padam Kuer died on 18-5-1953, and her name was expunged. The present plaintiff 2 is a transferee of the properties set out in Schedule 6 to the plaint and was subsequently added as a party. The properties in suit consist of the Tamkohi estate proper, the self-acquired properties of the last holder and properties endowed by him. Bhagwati Prasad Singh claims all these properties as heir to Raja Indrajit. The plaintiffs claimed the following reliefs:
"(i) A declaration that Maharani Padam Kuer succeeded as heir and next reversioner of the estate of Raja Indrajit Pratap Bahadur Sahi in respect of properties set out in Schedules 5 and 6 of the plaint, and as trustee of the properties set out in Schedule 4 of the plaint.
(ii) A declaration of title in favour of plaintiff 1 in respect of the properties set out in Schedule 5 of the plaint and as trustee of the properties set in Schedule 4 of the plaint excepting Schedule 6 properties.
(ii-a) A declaration that plaintiff 1 is entitled to compensation under the provisions of the Bihar Act 30 of 1950 and the U. P. Act 1 of 1951 in respect of the estate set out in Schedule 5 of the plaint.
(ii-b) A declaration that plaintiff 1 is entitled to the status of Bhumidar tenant in respect of the lands set out in Schedule 7.
(ii-c) A declaration that plaintiff 2 is entitled to the status of Bhumidar tenant in respect of the lands set out in Schedule 8.
(iii) For declaration of title as in favour of plaintiff 2 in respect of the properties detailed in Schedule 6 of the plaint.
(iv) Any other relief and costs."
The suit was resisted by defendant 1. The other defendants are his sons. He controverted all the allegations made in the plaint. He denied that there was any separation in the joint family and that they had renounced their claim to the estate, and alleged that the Tamkohi estate was and continued to be an ancestral impartible estate and never became the separate property of Raja Indrajit. He disputed the nature of the estate created by the will of the last male holder in favour of his wife and alleged that the will conferred upon Rani Jagdishwari a life estate with a defeasance clause providing for termination of the estate on adoption by his widow of a son to him and not a widow's estate and, alternatively, that if widow's estate was conferred upon her by the will, its effect was merely to hold in abeyance the right of defendant 1 to succeed to the Tomkohi estate by survivorship till the death of Rani Jagdishwari. He contended that on the death of Rani Jagdishwari the entire Tamkohi estate devolved upon him by the rule of survivorship. He alleged further that in any event the plaintiffs were not entitled to succeed to the estate as the Hindu Law of Inheritance (Amendment) Act had no application to this case since the last male holder did not die intestate, and the whole estate was disposed of by the will.
The self-acquisitions of the last male holder constituted an accretion to the impartible estate by reason of a special custom by which the acquisition of the holder to the estate ipso facto became incorporated in the Raj and descended as a compact estate. He also disputed, the applicability of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, and alleged that at any rate it had not the effect of divesting him of all the properties which vested in him in May, 1953, on the death of Maharani Padam Kuer.
3. The learned Subordinate Judge negatived all the contentions raised on behalf of the plaintiffs and dismissed the suit. He held that there was no separation between the late Raja Indrajit and Kuer Sarabjit, that the estate created by the will of the Raja in favour of his widow Was a life estate & not a Hindu widow's estate, that even if widow's estate was conferred upon her, it had not the effect of breaking the line of succession, that the properties set out in Schedule 2 to the plaint devolved virtue of the custom on defendant 1 by survivorship and that similarly he also got the Bhumidar rights in the properties mentioned In Schedules 7 and 8 by rule of survivorship. He held further that Act 2 of 1929 did not apply as Raja Indrajit because of his making a will before his death could not be said to have died intestate.
4. Tile first contention raised by Mr. Lalnarain Sinha on behalf of the appellants is that there was a complete separation between the late Raja Indrajit and Kuer Saratajit. In order to appreciate this contention, it will be necessary to state the facts culminating in the present litigation. The junior members of the family made several attempts for a share in the properties constituting the Tamkohi estate.
As far back as 20-7-1895, an ekrarnamah, Ex. B(1), was executed between the late Raja Satrujit and the late Kuer Sarabjit reiterating that the Tamkohi estate was an impartible estate governed by the rule of lineal primogeniture, the junior members of the joint family being entitled only to maintenance and giving Kuer Sarabjit one-eighth share in the properties of the Rai, move-able and immoveable, in case he decided to live separately. Raja Satrujit died on 10-10-1898.
Pour years after the ekrarnamah, Kuer Sarabjit repudiated it and instituted against Raja Indrajit a title suit No. 203 of 1899 at Gorakhpur for partition of the Tamkohi estate on the ground that the estate was partible and the ekrarnamah of 1895 had no binding effect (vide plaint Ex. A(1)). His contentions, however, were overruled, and the suit was dismissed on 3-8-1901 (vide judgment, Ex. E), and an appeal from the decree to the High Court also was dismissed with costs amounting to Rs. 46,323/5/3 on 25-5-1904 (vide decree, Ex. C(1).).
Kuer Sarabjit preferred an appeal to the Privy Council, and during the pendency of this appeal, the parties reached an amicable settlement and another ekrarnamah was executed on. 21-12-1908 between Kuer Saratajit and the late Raja Indrajit by which the appeal to the Privy Council was withdrawn and the costs awarded by the High Court were remitted and the ekrarnamah of 1895 was affirmed. It provided further that Kuer Sarabjit would be entitled to one-eighth share of the estate as laid down in the ekrarnamah of 1895 on the date on which he will make a formal application for the partition of the said estate.
5. On 25-2-1909 Kuer Sarabjit made a petition to the Collector of Gorakhpur for a certain amount to enable him to meet urgent demands (vide Ex. 3 (d)).
6. On 5-3-1910 Kuer Sarabjit made a formal application (Ex. 3) to the Collector of Gorakhpur for partition of one-eighth share according to the ekrarnamah of 1895. In another letter to the Collector dated 15-5-1910 (Ex. 3 (e)), he mentioned particularly that "in the eye of law and the ekrarnamah I am but now a separate member of the family since the date I applied for the partition."
7. It appears that his attempt to get one-eighth share partitioned off through the Collector of Gorakhpur failed and on 2-8-1913 he instituted Title Suit No. 184 of 1913 at Chapra for one-eighth share of the moveable and immovable properties of the Tamkohi estate (vide plaint, Ex. A). This suit was dismissed on the ground that the estate was not liable to partition. There was an appeal to the High Court from the judgment and decree.
During the pendency of this appeal, there was a fresh compromise between the parties on 7-3-1919 (vide Ex. C). By this consent decree, the parties abrogated the agreements of 1895 and 1908 and made a declaration again that the Tamkohi estate was impartible and the junior membe'rs of the family were entitled to maintenance and Babuai allowances, and the Raja for the time being had full powers to fix and grant the same and no junior members had a right to claim any share out of the moveable and immoveable property of the Raj in lieu of maintenance.
By this decree Kuer Sarabjit was granted certain villages by way of Babuai grant for maintenance and was also given the arrears of maintenance. Kuer Sarabjit and his son Chhaterpati Pratap Bahadur Sahi further made a declaration that all their outstanding claims against Tamkohi Raj had been satisfied.
8. Mr. Lalnarain Sinha appearing for the appellants contended that the claims laid and declarations made by the father and grandfather of defendant 1 in various agreements and litigations commencing from 1895 showed that there was a clear and unequivocal expression of the intention to separate, and that this intention was enough to cause severance of the joint status, He relied particularly upon the facts proved that the defendants and their ancestors representing the junior branch of the family had separate residence and separate messing and there was a separation in worship also.
There is further undisputed evidence that there had been dealings between the junior members and the holder of the estate. Mr. Sinha contended that these facts about which there was no controversy constituted clear proof of the disruption of the joint status. The question is whether they are sufficient to prove separation of the junior members so as to constitute the estate the self-acquired property of the holder, I may state at once that these circumstances were sufficient to prove separation in an ordinary Hindu joint family governed by the Mitakshara school of law.
But, because of the very nature of estate, im-partibility and primogeniture, the ordinary considerations which govern a joint Hindu family do not apply to a jont family which by Kulachar or special custom of the family is impartible. In order to constitute jointness in an impartible estate, it is not necessary that all the members of the family should live and mess together and have a common place of worship.
In fact, the law recognises the right of the junior members to maintenance and separate living without thereby causing any disruption of the general jointness of the family, and such separation does not imply, even indirectly, an intention on their part to sever their connection with the ruling branch. The reason is that as the right of partition does not exist in the case of an impartible estate, and an impartible estate is joint family property only for the purposes of succession, the expression of an intention to separate, unsuccessful attempts to obtain partition, or separation in mess, residence and worship, or mutual transactions, are altogether besides the point, and cannot operate to divest the junior members of their interest in such an estate. The law has been clearly stated in Mayne's Hindu Law in para 708:
"Sir Dinshah Mulla delivering the judgment of the Judicial Committee in Shibaprasad Singh v. Prayag Kumari Debee, 59 Ind App 331 : (AIR 1932 PC 216) (A) re-stated the law on the subject fully : 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; (3) 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 impartiality, as laid down in Sartaj Kuari v. Deoraj Kuari, 15 Ind App 51 (B) and the first Pittapur case Rama Krishna Rao v. Court of Wards, 25 Ind App 83 (C); and so also the third, as held in the second Pittapur case Rama Rao v. Raja of Pittapur, 45 Ind App 148 : (AIR 1918 PC 31) (D).
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 Prasad Singh v. Tej Bali Singh, 48 Ind App 195 : (AIR 1921 PC 62) (E).
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 coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis is similar to that of a reyersioner succeeding on the death of a Hindu widow to her husband's estate. It is a right which is capable of being renounced and surrendered."
When by the very nature of the estate, partition of an impartible estate is inconceivable, the various attempts made by the members of the junior branch to obtain partition of the estate which as admitted by them subsequently in various documents, was impartible governed by the rule of lineal primogeniture, do not indicate any intention to separate from the holder of the estate.
In fact, in all the documents that have been executed between the parties the impartibility of the estate has been declared and affirmed from time to time, and the junior members have been declared entitled to maintenance and even in this respect the holder of the estate for the time being was the final arbiter to fix the amount of maintenance payable to the members of the junior branch.
When in a joint family owning an impartible estate, the only right which a junior member possesses is the right to succeed to the estate by survivorship and other incidents of ordinary joint family do not apply, it is perfectly plain that in such a cass there can be no severance between the junior member and the holder of the estate unless the said right is, by act of parties, destroyed, and the only way which can bring about the cessation of the right is surrender or renunciation of the right by the member entitled to it.
In the case of Konammal v. Annadana Jadaya, 55 Ind App 114 : (AIR 1928 PC 63) (F), the Judicial Committee laid down that in order to establish that an impartible estate had ceased to be joint family property for the purposes of succession, it is necessary to prove an intention, express or implied, on behalf of. the junior members of the family' to give up their chance of succession to the impartible estate. This principle was affirmed in the case of Shiba Prasad Singh v. Prayag Kumari Debi, 59 Ind App 331 : (AIR 1932 PC 216) (G), and their Lordships of the Privy Council further added that it was not sufficient to show a separation in food and worship merely. In the case of Collector of Gorakhpur v. Ram Sundar Mal, 61 Ind App 288 : (AIR 1934 PC 157) (H), the common ancestor of the deceased holder and of the claimant had lived 200 years before the suit, and for a long time there had been a complete separation in worship, food and social intercourse between the claimant's branch of the family and that of the deceased holder, and further upon the death of the holder the claimant had not disputed that the widow of the deceased was entitled to possession.
Still the Judicial Committee refused to infer therefrom a renunciation of the right to succeed so as to terminate the joint status for the purposes of that right. Relying on these decisions the Supreme Court observed in the case of Chinnathayi v. Kulasekara Pandiya Naicker, AIR 1952 SC 29 (I) as follows:
"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 astate 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."
Mr. Sinha relied upon the case of Thakurani Tara Kumari v. Chaturbhuj Narayan Singh', 42 Ind App 192: (AIR 1915 PC 30) (J), taut as later explained by the Privy Council in the case of 'Collector of Gorakhpur (H)', above referred to, it does not lay down any general proposition of law for the purposes of that case, or, for the matter of that, of this case. In the case of Chinnathayi (I)', above referred to, the Supreme Court also refused to extend the ratio of this case to other cases in the following terms:
"In cur opinion, the decision in this case must be limited to the facts therein disclosed and can have no general application to cases of impartible estates where the only right left to the junior members of the family is the right to take the estate by survivorship in cases of failure of lineal heirs in the line of the last za-mindar. The junior members can neither demand partition 6f the estate nor can they claim maintenance as of right except on the strength of custom, nor are they entitled to possession or enjoyment of the estate."
It proceeds upon the peculiar facts involved in that case, and it is certainly not an authority for the proposition that separation in mess, business .and residence and separate enjoyment of property granted for maintenance established complete separation between the two branches.
In my opinion, the decision of the Privy Coun- cil in the cass of Collector of Gorakhpur furnishes complete answer to the contention of Mr. Sinha. It follows that unless there was a clear proof of an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate," there is no severance of the joint status. Mere separation in food, worship and residence was inconclusive to prove such a renunciation.
Now, there is no evidence to prove, nor are there any circumstances leading to the inference, that the defendants or their ancestors had ever surrendered or renounced their right to succeed to the Tarakchi Raj on the failure of the senior branch of the family. In the absence of surrender or relinquishment by the defendants or their ancestors of their right, it cannot be said that the joint family had ceased to exist and the Tamkohi estate became the separate estate of the ruling branch.
9. Mr. Sinha, however, argued that the defendants' ancestors had relinquished their right to succeed and relied strongly on the concluding words of the compromise effected between the parties in their last litigation on 7-3-1919. Paragraph 10 of the compromise petition embodied in the decree of the High Court (Ex. C) reads as follows:
"That Kuer Sarabjit Pratap Bahadur Sahi and Chhaterpati Pratap Bahadur Sahi and their male descendants give up all claims to any share in any property moveable or immoveable of the Raj nor have they now any other claim of any kind whatsoever against Raja Indrajit Pratap Bahadur Sahi or the Tamkohi Raj."
His submissions are that they have in clear words given up all claims to any share in the estate and laid down once for all that they had no subsisting claim of any kind whatsoever against Raja Indrajit or the Tamkohi Raj. This, he argued, constituted clear renunciation of their right to the estate including the right to succeed on the extinction of the senior branch.
In my opinion, this conclusion is not warranted by the compromise when considered against the background of the disputes between the parties. there was at that time no question of succession. to the estate on the line of Raja Indrajit becoming extinct.
It is well to remember that at that time the Raja was only 27 years of age and the question. of his having no issue must not have been in contemplation at all. They have been clamouring for a moiety in the estate, and when they failed, they were content with having their usual and customary Babuai grant by way of maintenance and for this the Raja assigned to them certain villages, and in consideration of this grant they on their part said that they had then no claims against the Raj which clearly implies that so far as the question of partibility of the estate was concerned, it was decided once for all that they had no such. right and so far as their maintenance was concerned, they were conceded this right.
In other words, their outstanding disputes existing at that time were amicably resolved and finally settled. The general words of the compromise implying abandonment of their right to succeed by survivorship to the Tamkohi Raj must be construed in the context of the dispute between the parties and must be limited to the things which the parties had then in contemplation. In the case of 'AIR 1952 SC 29 (I)', their Lordships of the Supreme Court have expressed themselves as follows:
"It is well settled that general words of at release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed -- ('Vide Directors etc. of L. and S. W. Ry. Co. v. Black-more', (1870) 4 HL 610 (K). In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed. This rule is a good law in India as in England. The same rule has been stated in Norton oh Deeds at page 206 (2nd Edn.) thus:
"The general words of a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given, though they were not mentioned in the recitals." In Hailsnam's Edition of Halsbury's Laws of England, Vol 7, at para 345, the rule has been stated in these terms :
"General words of release will be construed with reference to the surrounding circumstances and as being controlled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the creditor had no knowledge at the time when it was given."
In Chowdhry Chintaman Singh v. Mt. Nowlukho Kunwari', 2 Ind App 263 (PC) (L), where the document was drafted in almost the same terms as Ex-P-17, it was said that though the words of the petition of compromise were capable of being read as if the executants were giving up all rights whatever in the taluka of Gungore, yet in. the opinion of their Lordships the transaction amounted to no more than an agreement to waive the claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend." These observations apply with greater force to the present case. The general words used in the compromise relied upon by Mr. Sinha, therefore, cannot be construed to imply even indirectly a renunciation of their right to succeed to the estate when the time for it arose, because these words are controlled by the object and purpose of the document, and the object of the compromise was plainly not to settle any dispute regarding succession. There was at that time no such dispute.
The contention of Mr. Sinha has, therefore, no force and must be overruled. I think, therefore, that the learned Subordinate judge was right in holding that there was no separation between the late Raja Indrajit and the members of the junior branch represented by defendant 1 and his ancestors, and there was no renunciation by the latter of their right to succeed to the Raj by survivorship.
10. The next question is whether the will made by the last male holder conferred on his wife Jagdishwari Kuer a Hindu widow's estate, or a mere life estate with a defeasance clause, For a proper construction of the will, it will be necessary to reproduce here its relevant provisions.
"1. Whereas my father, the late Raja Satrujit Pratap Bahadur Sahi was previous to me the last Raja of the ancient and impartible Raj known as the Tamkohi Raj the succession to which is governed by an ancient family custom of male lineal primogeniture and was sole proprietor of extensive zamindari properties comprised in the said Raj and other moveable and immoveable properties to all of which on his death I, as his only son, have succeeded and whereas soon after my succession when I was a child my said father's brother, Kunwar Sarabjit Pratap Bahadur Sahi (for self and on behalf of his son, Babu Chatrapati Pratap Bahadur Sahi) advanced a claim to a half share on the properties left by my said father actually removed jewelleries of enormous value from the Raj Toshakshana and filed a suit for the partition of the whole estate left by my said father and actually removed jewelleries of enoromous value from the Raj Toshakhana and filed a suit for the partition of the whole estate left by my said father the result of which, if successful, would have been a disintegration of the Tamkohi Raj and the termination of the high status of the family. But by said uncle failed in his this attempt both in the trial Court of the Additional Subordinate Judge of Gorakhpur and in the Hon'ble the High Court of Judicature for the North Western Province's at Allahabad both which Courts dismissed his claim and held that the estate left by my said father was an impartible estate which I had succeeded according to the aforesaid rule of succession and to no share of which my said uncle had any right and whereas sometime after the paid decision my said uncle (for self & on behalf of his son, the said Babu Chatrapati Pratap Bahadur Sahi) filed another suit in the Court of the Subordinate Judge of Chapra for a one-eighth share of the properties in my possession on grounds other than those on which his previous suit was instituted at Gorakhpur. But he failed in this attempt too and the Subordinate Judge of Chapra dismissed his claim and in appeal from this decree in the Hon'ble High Court of Judicature at Patna I gave my said uncle and his said son certain properties for their maintenance and the maintenance of their male descendants as their Babuaai grant which was to revert to the Raj on failure of male line of issue and my said uncle and his son for themselves and their male descendants gave up all claims to any share in any property moveable or immovable of the Raj' and also declared that 'nor have they now any other claim of any kind whatsoever against Raja indrajit Pratap Bahadur Sahi or the Tamkohi Raj' and so my said uncle having died, his son Babu Chatrapati Pratap Bahadur Sahi or his descendants have no right or claim whatsoever in the properties possessed by me and whereas I have no issue up till now and am desirous of making arrangements for the succession to my properties after my death I am executing this will.
(2) As already stated I have no issue at present but if in the future I have a son or sons the succession to my properties shall be governed by the rule of male lineal primogeniture which as already stated by the rule of succession in my family and after me my eldest male lineal descendant shall succeed to all my properties according to the said rule of succession and Hindu Law and the dispositions of my properties made or liabilities created hereinafter are not to be given effect to.
(3) If I have no son at the time of my death I give devise and bequeath to my wife Rani Jagdishwari Kunwari a Hindu widow's life-estate in all properties (not hereinafter otherwise disposed of) which belong to me now or shall belong to me at the time of my death of whatsoever kind and nature and wheresoever situated which life-estate shall be defeasible and divestible on the adoption of a son to me for which authority is being given to her hereinafter.
(4) I authorise my said wife to adopt a boy as a son to me subject to the conditions specified below if I leave no son or if I leave a son who dies before he can continue the line of succession.
(5) I declare that on the adoption of a son being made as aforesaid the life estate of my said wife shall terminate and the adopted son shall succeed to all my properties as such son according to Hindu law except so far as the disposition made and interest or liabilities created hereinafter.
(6) I give and bequeath absolutely to my said wife the estate called the Sursand Estate, Tamkoni Patti situated partly in the district of Mozaffarpur arid partly in the District of Darbanga in Bihar Province (which is no part of the Tamkohi Raj) comprising of the villages specified in Sch (A) hereto annexed.
(7) .....
(8) It is my desire that after my death my sister's son and daughters are to be treated generously on the occasions of births, sacred-thread ceremonies (Upnayan) marriages of their children and deaths of their children and themselves and in this respect the wish of my said "wife is to be the guiding factor.
(9) .....
(10) .....
(11) The rule of succession of trustee of the trust created by the last proceeding clause shall be that the holder of the Tamkhoi Raj for the time being (that is to say my successor to the Raj) shall succeed to the office of the trustee one after another and shall be responsible for the management of the villages and for collecting their income and profits and for applying them for the purposes mentioned in the said clause.
(12) to (16) ....."
11. The dispute centres round the interpretation of the habendum clause contained in a para 3 of the will. According to the appellant, the estate which the testator by his will conferred upon Jagdi-shwari Kuer was a Hindu widow's estate. The respondents, on the other hand, contended that it was a mere life estate terminable on the adoption of a son to the testator.
Mr. B. C. De appearing for the respondents pointed out that the mention of "life estate" in para 5 of the will and also In the concluding portion of para 3 was wholly incompatible with widow's estate. He urged that if in fact the creation of a widow's estate was intended, the same expression must have occurred in para 5 of the will also.
According to him, it was a pure life estate defeasible and divestible on the adoption of a son. His further submissions are that the intention of the testator to keep intact the coparcenary and rule of survivorship deducible from the authority to the widow to adopt and direction for the succession by the adopted son according to Hindu law and provision in the will for maintenance to his mother and also to the wife in case of adoption, all conflict with the grant of a widow's estate.
In order to ascertain whether the testator's intention was to give to his widow an ordinary life estate or what is called a Hindu widow's estate, the principle laid down by the Supreme Court in the case of Lakshmana Nadar v. R. Ramier, AIR 1953 SC 304 (M) should be kept in view:
"The Court's primary duty in such cases is to ascertain from the language employed by the testator 'what were his intentions' keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words to ascertain his wishes by putting itself, so to say, in his armchair."
12. The question is what is the nature and character of the estate conferred upon Rani Jagdishwari Kuer by the will. The circumstances in which the will came into existence show very clearly that the grantor intended to convey to his wife a widow's estate of the impartible estate, and not a mere life estate. The disposing words of para 3 of the will show that he gave to his wife a widow's estate.
No doubt, in the concluding portion of para 3 and para 5 of the will 'life estate' is mentioned. By the subsequent words, no interest of any sort was created. The 'estate' . mentioned therein clearly relates back to the estate granted previously. When the governing portion of the will designates the estate created by the will as Hindu widow's life estate, the mention of 'life estate' in subsequent portions of the will is of little consequence.
It may be that for the sake of brevity only 'life estate' was mentioned. After all, the widow's estate does partake of the character of life estate in certain respects, and when once the estate to be conferred was stated to be widow's estate, it did not matter how it was described subsequently. In fact 'life estate' or 'life estate of a Hindu widow' or 'woman's estate' has been sometimes used by the authorities, of course, loosely, to signify "Hindu widow's estate". As observed by their Lordships of the Patna High Court in the Pull Bench case of Ram Bahadur v. Jager Nath Prasad, 3 Pat LJ 199 : (AIR 1918 Pat 469) (N) "the authorities which might assist in the determination of this question are somewhat perplexing inasmuch as the term estate for life' has been frequently used in Indian cases as synonymous with a widow's or a woman's estate."
Their Lordships referred to the case of Radha Prasad Mullick v. Ranimoni Dassi, 35 Ind App 118 (O), in which their Lordships of the Privy Council described the estate in one sentence as a woman's estate in the property, and in another as an estate for life. Hence, a mere mention of life estate in the subsequent portions of the will should not be so literally interpreted as to destroy the effect of the expression used in describing the estate intended to be conveyed by the will.
When 'life estate' has been frequently used as synonymous with Hindu widow's estate, and when the disposing portion of the will clearly creates 'widow estate' the subsequent characterization of the self-same estate as life esbate does not militate against the grant being a Hindu widow's estate. It is true that the words creating the estate call it "Hindu widow's life estate". While, a-s interpreted by authorities, 'life estate' may in appropriate cases be regarded as synonymous with Hindu widow's estate and is not conclusive on the point whether in a given case, the grant was a life estate in the English sense or a widow's estate under the Hindu Law, the qualifying words "Hindu widow's" in the will would be wholly inappropriate if life estate in the English sense was intended.
It is conceivable that the author of the will knew the distinction between a widow's estate and life estate. At least, his familiarity with the nature and scope of the estate called widow's estate, which is so well-known, cannot be doubted, If 'life estate' in the English sense was the ultimate objective, the description of the estate in the opening words of para 3 as "Hindu widow's life estate" becomes meaningless and irrelevant. This is indicative of the fact that he thereby intended to convey to his wife an estate such as a woman ordinarily acquires by inheritance under the Hindu Law.
In my opinion, in construing 'the will a great weight has to be attached to the operative portion of the will and full effect to it must be given, unless such a construction is repugnant, either to the declared wish of the testator or to other provisions of the will read as a whole.
13. If the disposing words of the will be not considered conclusive on the point whether a life estate or a Hindu widow's estate was created, then the surrounding circumstances of the will will have to be considered to determine the intention of the grantor. In so doing, we shall have to construe the will from the point of view of the grantor. In the Full Bench decision of this Court in the case of 3 Pat LJ 199: (AIR 1918 Pat 469) (N) above referred to, their Lordships have laid down certain principles which should govern the construction of a will made by a Hindu:
"..... .This at any rate can be laid down with certainty that in construing the will it is not permissible to take into consideration what the effect of such a will as this would have been under the English Law. It is not permissible for instance to import the idea that where an estate is devised to enure only for life, the result is that an estate in fee in remainder whether vested or contingent must exist in some one.
In the case of Bhagabati Barmanya v. Kali Charan Singh 38 Cal 438 (P) their Lordships of the Privy Council desired emphatically to call attention to a passage in the judgment of the Chief Justice of the Calcutta High Court with which their Lordships were in entire concurrence. The passage is this (page 474 of the report).
'English Rules of Construction have grown up side by side with a very special law of property and a very artificial system of conveyancing, and the success of those rules in giving effect to the real intention of those whose language they are used to interpret, had been not more upon their original fitness for that purpose than upon the fact that English documents of a formal kind were ordinarily framed with a knowledge of the very rules of construction which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instruments of Hindus who view most transactions from a different point, think differently and speak differently from Englishmen and who have never heard of the rules in question.
Again in the case of Skinner v. Naunihal Singh, 33 All 211 (Q) their Lordships say that English rules of interpretation must not be allowed to govern the case but the matter must be determined by the principles of natural justice. It is clear therefore that in construing the Will we must banish from our minds for the time being the very artificial legal notions connected with the English idea of an estate for life, and substitute therefor a notion familiar to Hindu Law under which a person holding a restricted estate for life is yet regarded as representing the entire estate. The English classification under which estates are, as has been said, projected along the plane of time and are measured by time alone is foreign to the Hindu Law which measures estates not by duration but by use.... . . .
* * * * * We do not doubt that a Hindu can by Will
create an estate for life in the English sense, but his intention to do so must be made clear by the terms of the Will itself without any importation of English ideas."
When I consider the will in the light of attendant circumstances of the case, I do not think that the creation of a Hindu widow's estate can be assailed on the ground of repugnancy. While such an estate is not inconsistent with the other provisions of the will, the creation of a mere life estate appears to bo wholly opposed to the clearly expressed intention of the testator. It is quite plain that because oE the bitterest enmity between him and the members of the junior branch extending over several years due to which he was denied calm and peaceful enjoyment of the estate, he wanted to disinherit them completely.
14. At the time of making the will, Raja Indrajit had no son. He begins by reciting the various litigations between him and his father on one side and the defendants and their ancestors on the other with respect to the Tamkohi estate and concludes by observing in clear terms that Chatterpati or his descendants have no right or claim whatsoever in the properties possessed by him. There was a complete exclusion of the members of the junior branch from inheritance to the Tamkohi estate.
If the defendants and their ancestors were not entitled to succeed, as conceived by the testator himself, rightly or wrongly, a provision had to be made for succession to the Tamkohi estate and this is what the testator purports to do in the introductory para 1 of the will. He concludes as follows:
"So my said uncle (Kuer Sarbjit) having died, his son Babu Chatrapati Pratap Bahadur Sahi, or his descendants have no right or claim whatsoever in the properties possessed by me and whereas I have no issue uptill now and am desirous of making arrangements for the succession to my properties after my death. I am execiting this will." One thing which stands out clearly is that he wanted that the members of the junior branch should on no account succeed to the estate. Mr. De pointed out that nevertheless he wanted the continuance of his family. As will appear from paras. 2, 4 and 5, he no doubt intended the perpetuation of the family and Tamkohi estate through his son, natural or adopted. At the same time, it is quite apparent that while his line should be continued, he did not desire that this perpetuation should be effected by taking into the family any member of the junior branch, namely, his uncle and his descendants.
While the continuance of the line was in contemplation, it was equally clear that complete exclusion of the junior member from succession to the Tamkohi estate was intended. It is true that their exclusion from inheritance was found on the view that they had separated and also renounced their right to succeed a view which, as shown above, is legally untenable, but this is hardly a point which can be taken into consideration while construing the will. The hard fact is that the Raja wished to exclude them from inheritance altogether.
If complete exclusion of the junior members was not intended, it was easy for him to provide clearly that despite the renunciation by them of their right they would be considered members of the family and would be entitled to succeed to the estate in case he died sonless and there was no adoption by his widow.
Therefore, it is unquestionable that the members of the junior branch were to be debarred permanently from succession. This mental state of Raja ITndrajit at the time of making the will furnishes a key to the interpretation of the will. Could be have achieved this object by granting to his wife a mere life estate? The answer is undoubtedly in the negative. There is a clear distinction between a life estate and a widow's estate. The widow takes an absolute estate, subject to certain limitation on her power of disposal. The estate vests in her, and so long as she is alive, no one can assert any vested interest in the estate.
"The presumptive reversioner has got no terest in the property during the lifetime of widow. He has a mere chance of succession which may not materialise at all".
In the case of a life estate, the holder has no vested interest in the estate, and his rights are restricted only to the possession and enjoyment of the estate for life without destroying the corpus of the property. He has no power of alienation at all, and the estate in his hand must be kept intact for the remainderman to inherit. It will be seen that Raja Indrajit had not made any provision in the will for disposal of the remainder. The will gave Rani Jagdishwari Kuer authority to adopt, but there was the likelihood of this authority not being exercised.
By the will no legal obligation was placed upon the widow, who could or could not adopt according to her sweet will. It was easy for ths testator to conceive the possibility of the adoption not taking place. If the estate created by the will in favour of Rani Jagdishwari Kuer was a mere life estate, then in the absence of adoption of a son, there was no provision in the will for undisposed of remainder.
In the absence of adoption of a son to Raja Indrajit, the Tamkohi estate on the termination of the life estate will vest in the members of the junior branch. But, such a contingency will be wholly repugnant to the declared intention of the donor to debar them completely from succession to the Tamkohi estate. Thus, the grant of a life estate to his wife was not calculated to achieve the object which he had conceived; rather, it nullified the very purpose for which the will was made.
The absence in the will of any bequest of the remainder and the possibility of the members of the junior branch succeeding to the estate on the failure of an adoption provide a somewhat sure indication in favour of the view that the estate created was a woman's estate in the technical sense and not merely a life estate.
15. Again, by para 4 of the will, he gives authority to his wife to adopt a son to him, and by para 5 he provides for succession tq his properties by the adopted son. It is stated in para 5 that the adopted son shall succeed to ail his properties as such son according to Hindu Law. If, in fact, he intended creation of a life estate in the English sense, provision for succession by the son according to Hindu Law was redundant.
If it was a mere life estate defeasible on adoption, the adopted son will take from the date of the adoption, in which case the question of Hindu law does not arise at all. If it was a widow's estate, then according to Hindu Law the adopted son will succeed to the properties not from the date of adoption, but retrospectively from the date of the death of the testator.
The expression "the adopted son shall succeed to all my properties as such son according to Hindu Law" in para 5 of the will really states the legal position which will happen on the termination of the widow's estate by adoption. This expression will have no significance, if, in fact, a mere life estate was intended. When the adoption, according to Hindu Law, was to extinguish the widow's estate and give the adopted son a right in the grantor's properties retrospectively from the date of his death, it passes one's comprehension why instead of following the straight course recognised by Hindu Law, the testator adopted the circuitous way of creating a life estate circumscribed by certain conditions.
Again, if the provisions of para 5 of the will are given full effect, the adopted son will succeed to all his properties. But, if it was a mere life estate, then the adopted son will not be entitled in law to the acquisitions made by Rani Jagdishwari Kuer with the income of the property between the date of the death of the testator & the date of adoption. Thus, a life estate in the strict sense of the term would defeat the provisions of para 5, because in that case the whole of the properties would not vest in the adopted son as intended by the grantor. Therefore, the construction sought to be put upon the provisions of the will by Mr. De will wholly nullify the effect of this paragraph.
After all, there appears to be no motive for conferring upon his wife a mere life estate instead of a widow's estate. If the wife in exercise of her powers as a holder of widow's estate transferred the whole estate, of course, for the purposes recognised by law, this would have hardly been contrary to the wish of the testator. But the creation of a life estate with the chance of the members of the junior branch succeeding to the Tamkohi esttate on failure of adoption was obviously against the wish of the testator.
16. It was contended by Mr. Be that the provision in para 3 of the will for termination of the estate created by it on adoption of a son to him is inconsistent with the widow's estate, since according to law adoption will bring about cessation of the widow's estate. In my opinion, this provision was of the nature of surplusage. They knew the position under the Hindu law, and by making that provision the grantor did nothing but restate the position under the Hindu law, presumably, by way of clarification.
Mr. De further argued that the conveyance of the Sursand estate absolutely to Rani Jagdishwari Kuer as provided in para 6 of the will conflicted with the creation of a widow's estate and Was consistent only with the life estate. In case of life estate, she had no power of alienation, and, therefore, he argued, it was necessary to give her properties over which she had complete power of disposal.
It will be observed that by the will Rani Jagdishwari Kuer had been given authority to adopt, and on the adoption of a son to the Raja the estate will immediately vest in the adopted son, and Rani Jagdishwari Kuer will have no right left except the right of maintenance. Therefore, Raja Indrajit gave her Sursand estate absolutely, so that she might enjoy that property according to her desire unfettered by the interference of the adopted son. I think, therefore, that the absolute conveyance of the Sursand estate in her favour was in no way inconsistent with the Hindu widow's estate.
17. It was then contended by Mr. De that when a widow's estate is created by will and not by law, the widow must be given power of alienation for purposes authorised by law either expressly or by necessary implication, and in absence of such a power the estate that was created must be regarded as a limited life estate.
Reliance was placed upon the decision of the Supreme Court in AIR 1953 SC 304 (M). In this case one Lakshminarayana Iyer, a Hindu Brahmin, died leaving him surviving his widow and a married daughter Ramlakshmi who had a number of children. Before his death he executed a will by which he disposed of his properties in the following way:
"After my lifetime, you, my wife shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your lifetime .... our daughter ........ and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange and sale from son to grandson and so on for generations.... .... .... ...... .. "
The controversy in that case was whether by this will the widow of the testator was given a widow's estate or a life estate, and after considering the various factors their Lordships of the Supreme Court concluded that the estate created by the will was a life estate and not a widow's estate under the Hindu law. One of the circumstances considered by their Lordships was the absence of power of alienation for justifying necessity, and in discussing this aspect of the case their Lordships observed as follows:
"The widow cannot be held to have been given a full Hindu widow's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. It was argued that such a power was implicit within the acts she was authorised to do, that is to say, when she was directed to pay the debts and settle the maintenance of Kama Lakshmi it was implicit within these directions that for these purposes if necessity arose, she could alienate the properties. This suggestion in the surrounding circumtances attending the execution of this will cannot be sustained".
This case is distinguishable from the present case in that the will executed by Lakshminarayana Iyer did not specifically mention widow's estate and purported prima facie to confer a life estate. In- the Instant case, Raja Indrajit has conferred by the will widow's estate upon his wife. I do not think that their Lordships of the Supreme Court are laying down an invariable rule of law that in all cases the estate conferred upon a widow by her husband by a will, will be regarded as a life estate even if it be established that widow's estate was granted, if the widow had not been given thereby power of alienation either in express terms or by necessary implication.
When the document creating the estate in favour of the widow grants in clear terms widow's estate, or it is proved by other unimpeachable circumstances that widow's estate was intended, then, in my opinion, it is wholly unnecessary to describe in minutest details all the incidents of widow's estate recognised by Hindu law. In the case of Lakshmana Nadar the will gave the estate absolutely to the daughter and her heirs after the termination of the life estate in favour of the widow.
The conferment of the absolute estate on the daughter was wholly inconsistent with the widow's estate, because in the latter case the daughter will have a mere spes successionis under the Hindu law which may or may not mature and under the will her interest will only be a contingent one in what was left undisposed of by the widow--a consideration which was wholly contrary to the ultimate absolute conveyance in favour of the daughter. In these circumstances, the absence of power of alienation became an important consideration.
I may mention in this connection that the case of 3 Pat LJ 199 : (AIR 1918 Pat 469) (N) was referred to & approved by their Lordships of the Supreme Court in Lakshmana Nadar's case (M). In that case the estate created by the will was construed to be the widow's estate although the widow had not been given either in express terms or by necessary implication power to dispose of the corpus of the property.
In Meda Vangamma v. Mitta Chelamayya 36 Mad 484 (R) also the widow had not been given any power of alienation; still the estate was interpreated to be widow's estate. Although the power to dispose of the estate is a factor, and I should say an important factor to be considered while ponstruing a will to judge whether or not a widow's estate was created thereby, it will be wrong to suggest that the absence of such power conclusively established a life estate. The contention pressed by the learned Advocate, therefore, fails.
18. On a careful consideration of the various terms of the will and the surrounding circumstances attending its execution, I am of opinion that the disposition in favour of Rani Jagdishwari Kuer was a widow's estate and not a mere life estate.
19. The next and the most important question is what is the consequence of the creation by the last male holder of a Hindu widow's estate in respect of an impartible estate governed by the rule of lineal primogeniture, as in the present case.
Mr. Sinha appearing for the appellants argued that the conferment on Rani Jagdishwari Kuer of a Hindu widow's estate by her husband Raja Indrajit destroyed the coparcenary consisting of himself and the members of the junior branch and the whole Tamkohi estate vested in her and ceased to be joint family property for the purposes of succession, with the result that no interest in the estate remained outstanding for the junior members of the branch of Kuer Sarabjit to inherit.
On the other hand, Mr. De for the respondents argued that the creation of a widow's estate had not the effect of terminating the coparcenary. The only consequence, he pointed out, was to hold the succession by survivorship in abeyance until the death of the widow. This is a question which is not free from difficulties and there is ho direct authority on this point. It is a question of first impression and will have to be decided with reference to certain recognised principles.
In order to appreciate the two opposing view points, it will be necessary to keep in mind the incidents of impartible estate and widow's estate. The Privy Council described the nature of the widow's estate as far back as 1879 in the case of Moniram Kolita v. Keri Kolitani, 5 Cal 776 (S) in the following terms:
"According to the Hindu law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship as to which see the Shivaguna case Katama Natchiar v. Raja of Shivganga, 9 Moo Ind App 539 (T) does not take a mere life estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a Qualified interest. Her estate is an anomalous one, and has been compared to that of a tenant in tail.
It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that, until the termination of it, it Is impossible to say who are the persons who will be entitled to succeed as heirs to her husband. The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death".
This position was affirmed later by the Privy Council in the case of Janaki Ammal v. Narayanasami Aiyar 39 Mad 634 at p. 637; (AIR 1916 PC 117) (U) and her rights and powers were stated thus:
"Her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but, to use the familiar language of Mayne's Hindu Law, para 325, page 870, 'so as she is alive no one has any vested interest in the succession'."
In Kalipada Chakraborti v. Sm. Palani Bala Devi AIR 1953 SC 125 (V), their Lordships of the Suprer-
me Court stated the position of a Hindu widow inheriting a widow's estate of her husband's estate as follows:
"The estate of a Hindu female heir, as is well known, is extremely anomalous in its character;
it cannot be described either as an estate of inheritance or one for life, though it partakes of the nature of both".
In the case of Natvarlal Punjabhai v. Dadubhai Manubhai, AIR 1954 SC 61 (W), his Lordship B. K. Mukherjea J, (as he then was), delivering the judgment of the Supreme Court formulated the true nature of a Hindu widow's estate in the following terms:
"Though loosely described as a 'life estate', the Hindu widow's interest in her husband's property bears no analogy to that of a 'life tenant' under the English law. As was pointed out by the Judicial Committee: vide -- 'The Collector of Masaulipatam v. Cavaly Venkata', 8 Moo Ind App 529 (PC) (X) as early as 1861, the estate which the Hindu widow takes in a qualified proprietorship with powers of alienation for purely worldly or secular purposes only when there is a justifying necessity and the restrictions on the powers of alienation are inseparable from her estate.
The restrictions, as the Judicial Committee pointed out, which are imposed on the Hindu widow's powers of alienation, are not merely for the protection of the material interest of her husband's relations, but by reason of the opinion expressed by all the Smriti writers that the Hindu widow should live a life of moderation and cannot have any power of gift, sale or mortgage except for religious or spiritual purposes".
The Supreme Court further pointed out in this case that a Hindu widow's estate is entirely different from and cannot be likened to a life estate under the English law.
"In English law the reversioner or remainderman has a vested interest in the property and his rights are simply augmented by the surrender of the life estate. In the Hindu law, on the other hand, the widow, so long as she is alive, fully represents her husband's estate, though her powers of alienation are curtailed and the property after her death goes not to her but to her husband's heir. The presumptive reversioner has got no interest in the property during the life-time of the widow. He has a mere chance of succession which may not materialise at all".
It will appear from the above that the Hindu widow's estate cannot be likened to a mere life estate. As laid down by the Supreme Court in the case of Natvarlal Punjabhai (WJ above referred to, a Hindu widow has larger rights than those of a life estate holder, inasmuch as, in case of justifying necessity she can convey to another an absolute title to the properties vested in her. What vests in her is not a mere life estate but the whole estate. This follows from the very nature of the estate she acquires.
The estate of her husband vests in her absolutely and she is to all intents and purposes absolute owner thereof and represents the estate completely. She has also complete power of disposal within the limitations imposed by the Hindu Law -- limitations which are intended to benefit the estate. Her powers in this respect are analogous to the powers of a male coparcener in a joint Mitakshara family. She can in certain cases dispose of the whole estate inherited by her, which she could not if she were a mere life tenant. So long as she is alive, no one has any vested interest in the succession. She is thus the absolute owner of the property she inherits from her husband and the restrictions on her power of alienation do not affect the nature of the estate to which she succeeds,
20. As to the impartible estate, the position is that the holder of the estate has unfettered right of disposal regardless of the interest of the undivided members of the family. Though a member of the joint family, he does not suffer from the disabilities to which an undivided member of the ordinary Mitakshara joint family is subject. The latter, even if he happens to be the head and karta of the family, cannot alienate, or encumber any portion of the corpus of the joint property unless the purposes for which alienation is made are beneficial to the estate or to the members jointly.
In absence of legal necessity, he has no power of disposal at all. There is no such limitation on the powers of the holder of an impartible estate. It is now well-settled that he can alienate the estate by sale, gift or will, although the family is undivided, unless by family custom or by the condition of the tenure he is precluded from so doing.
This principle was recognised by the Privy Council as far back as 1888 in 15 Ind App 61 (E), which was followed in the first Pittapur case, 26 Ind App 83 (C) and in the second Pittapur case, 45 Ind App 148 (AIR 1918 PC 18) (D) and also in another case namely, Protap Chandradeo v. Jagdish Chandra Deo, 54 Ind App 289 : (AIR 1939 PC 95) (Y). This absolute power of alienation is not confined only to persons who are strangers to the family.
It is equally settled by the decision of Privy Council in the case of Perumal Sethurayar v. Subbulakshmi Nachiar, AIR 1939 PC 95 (Z) that the transfer of the impartible estate by its holder may be made either in favour of stranger or in favour of a member of the family, and the consequence in either case is identicial.
21. The consequence of this transfer is that the impartible estate ceases to be property of the joint Hindu family and consequently the customary line of succession, namely, the rule of survivorship and lineal primogeniture is broken and the property descends in accordance with the ordinary law of succession. In the case of Ulagalum Perumal Sethurayar, AIR 1939 PC 95 (Z), above referred to, the Judicial Committee stated the position as follows: --
"No doubt joint property cannot, if governed by a custom of impartiality, be converted into separate property by any exercise of the right to call for a partition as the existence of such a right is inconsistent with the custom. But it does not follow that by no other way can the same result be arrived at. Admittedly it can be achieved by surrender or reliquishment. And it would seem that the right of any given person to succeed by survivorship to any given property must depend both upon the person continuing to be a member of the joint family and also upon the property continuing to belong to the family.
If the zamindar has a power of alienation which is not limited by legal necessity nor liable to be controlled by any other member of the family, so that he can squander the property or give or sell it to a stranger, thereby defeating the rights of other members, there would not seem to be great force in the reflection that when he transfers to a member of the family he is effecting a result similar to that produced by partition without having the power to compel partition.
The status of an individual as a member of a Hindu joint family is in no way inconsistent with his owning separate property; and the right of unfettered alienation affirmed in 15 Ind App 51 (B) may well produce results, when exercised in favour of a member, which are as favourable or more favourable to him than those which partition would have produced. If the property ceases to be the property of the joint family there is nothing to which the right by survivorship can attach and there is no added difficulty in its becoming the separate property of an individual member."
22. It is manifest that on the transfer of the impartible estate by the holder there is left no family property on which the rule of survivorship may operate. When an absolute transfer by the holder of an impartible estate either in favour of a stranger or a member of the joint family breaks the line of succession and takes the joint family property out of the reach of the junior members who, but for this transfer, would have been entitled to succeed by the rule of lineal primogeniture on the extinction of the family of the ruling branch, there appears to be no cogent reason why the grant by the holder to his wife of a widow's estate in the impartible estate which, as shown above, is in essence and law, an absolute transfer, should not produce the same result.
The power of the widow to alienate her estate is no doubt qualified by the existence of legal necessity, but this limitation on her power cannot make any difference in the result arising from the transfer of the impartible estate. One of the fundamental principles of the Hindu Law or, for the matter of that, any law is that the vesting of the estate never remains in abeyance.
The right of succession to an estate of a deceased owner vests immediately on his death in his then nearest heir and cannot be held in abeyance, except when the nearer heir is then in the womb. The following passage in Mayne's Hindu Law, Edn. 11, para 484, may be usefully referred to:
"The right of succession under Hindu law is a right which vests immediately on the death of the owner of the property. It cannot in any circumstances remain in abeyance in expectation of the birth of a preferable heir, not conceived at the time of the owner's death.
A son or daughter who is in the mother's womb at the time of the death is, in contemplation of law, actually existing, and will, on his or her birth, divest the estate of any person with a title inferior to his or her own, who has taken in meantime. So, in certain circumstances, will a son who is adopted after the death. But in no other case will an estate be divested by the subsequent birth of a person who would have been a preferable heir if he had been alive at the time of the death".
On the death of Raja Indrajit, therefore, the property must vest in certain person. It cannot vest simultaneously in two persons having different legal character. According to the rule of lineal primogeniture, the property should have vested in Chhaterpati immediately on the death of Raja Indrajit.
But, the creation of widow's estate in favour of his wife interposed an obstruction & prevented the vesting of the estate in Chhaterpati by the customary rule of lieneal primogeniture & survivorship. If his wife succeeded to the entire estate of her husband and took possession of it as an absolute owner, in accordance with the Hindu Law, the rule of succession, by which the estate should have devolved on Chhaterpati, was obviously destroyed thereby.
According to the custom that obtains in this family, a female has no position, and the property descends to the eldest male member of the eldest male line, and if by grant of this estate to his wife, the said custom ceased to be operative, it will be wrong to say, as contended by Mr. De, that the right to succeed to the impartible estate by survivorship remained in abeyance.
If the contention of Mr. De were to prevail, then there will be superadded on the customary rule of succession a condition that in the case of grant of a widow's estate by the holder in favour of his wife, the customary rule will remain in abeyance, for which there appears to be no authority. He relied upon the cases of Baijnath Prasad Singh v. Tej Bali Singh, 38 All 590 (Z1), AIR 1952 SC 29 (I), Kamal Kishore Prasad Singh v. Hari Har Prasad Singh, AIR 1951 Pat 645 (Z2), Kadar Nath v. Radha Shyam, AIR 1953 Pat 81 (Z3), Kunja Sahu v. Bhagaban Mohanty, AIR 1351 Orissa 35 (Z4), Subba Rao v. Krishna Prasadam, AIR 1954 Mad 227 (Z5) and Parappa v. Nagamma, AIR 1954 Mad 576 (Z6). None of these cases are in point. He particularly relied upon the following passage in the judgment of Muhammad Rafiq in 38 All 590 (AIR 1917 All 191) (Z1) "'above referred to:
"Moreover, if it be said that the alleged oral will of Kesho Saran is not proved and that the Rani held the estate without any right we have to see whether she became the absolute proprietor of the estate and thus the claim of the plaintiff is not sustainable. She admittedly held the estate as a Hindu widow. She says so in her will, her deed of relinquishment, her petitions to Government and the Government officials, and the defendants 1 and 2 treated her as such. Her possession as a Hindu widow does not make her absolute proprietor of the estate.
Had the plaintiff or his father sought to eject her after she had been in possession for 12 years, he would have failed as she could claim to remain in possession as a Hindu widow for her life. It cannot, therefore, be said that because she admittedly held the estate as a Hindu widow the rule of succession to the estate has been altered by that fact.
Had she been in possession as an absolute owner, then no doubt the rule of succession Would have been affected. The only result of her possession as a Hindu widow has been to interpose the period of her life between the death of her husband and the succession to the collateral entitled to succeed."
With great respect to his Lordship, I may say that these observations were not necessary for the disposal of the case, as they did not arise at all on the pleadings of the parties. The suit related to the right to possession of the Aghori-Barhar Raj in the district of Mirzapur. The last male owner was Raja Kesho Saran Shah. He died on 4-3-1871, leaving no issue but a widow named Rani Bed Saran Kunwar. The Rani lived until 1913 when she died. The plaintiff's father was the direct senior lineal descendant of the common ancestor of himself and the last male holder.
Defendant 1 Baijnath Prasad Singh, the rival claimant to the Raj, was the uncle of the plaintiff, being thus one degree senior to the common ancestor than the plaintiff. Defendant 2 was the younger brother of defendant 1. The estate was an impartible estate, and the question was who was entitled to the gaddi.
The plaintiff brought the suit on the allegation that the Rani got possession after the death of her husband not as succeeding to a separate estate in default of heirs, but by virtue of the custom obtaining in the family under which she was entitled to hold the estate for life, subject to the vested interest of the eldest member of the senior branch living at the time of the death of the last Raja to succeed after the widow, and that the Raja must be found in the senior line, and that he as the eldest son of the eldest male in the seniormost line existing on the date of the death df the last male holder should succeed.
Defendant 1, on the other hand, contended that the Raja was he that was found nearest in blood to the late Raja and senior in branch at the date of the death of the Rani and that he fulfilled these conditions. There was, therefore, in this case no question of the effect of interposition of the widow's estate. On the contrary, it was as sumed that she entitled to succeed by virtue of custom. 'Defendant 1 got possession of the estate under a deed of surrender executed in his favour by the Rani. He traversed all the main allegations of the plaintiff.
It was found in this case that the estate was impartible, and the right of the Rani to succeed to the estate of the last Raja was not at all disputed. The only point for decision was as between the plaintiff and defendant 1 who was the preferential heir, and both the Courts found that the plaintiff was entitled to succeed by the rule of lineal primogeniture.
That case, therefore, proceeded on entirely different considerations, and it was assumed that the Rani had got possession not in her own right but by virtue of custom, or under the will affirming the custom, and that on her death the estate would pass to the collaterals of the late Raja, Having regard to the nature of that case, it is not an authority for the proposition that the creation of a widow's estate in an impartible estate kept the succession in abeyance. The observations of Muhammad Raflq J. cannot be regarded as laying down a general proposition of law, especially when the facts of that case did not warrant it. This case went up to the Privy Council (vide 48 Ind App 195 : (AIR 1921 PC 62) (E), and the question of the effect of interposition of the widow's estate was not mooted even there. This case, therefore, does not dispose of the matter.
In the case of AIR 1952 SC 29 (I), the widow got the estate by virtue of a compromise, the important provisions of which were to the following effect: (a) The zamindari shall be enjoyed by Kamuluammal till her life-time and she shall have no right to mortgage those properties in any way prejudicial to the plaintiff; and (b) Kandasami (the person entitled to the estate on the date of the death of the last male holder) and his heirs shall, after the lifetime of Kamuluammal, enjoy the zamindari excepting Dombacheri village together with such right if any as defendant 1 Kamuluammal may have acquired under the deed of release executed between her and Sundara Pandiya.
In that case, therefore, no widow's estate in the technical- sense was created. Kamuluammal got only life estate by virtue of the compromise between the members of the family. Therefore, this case also is not an authority for the proposition enunciated by Mr. De.
23. The other cases relied Upon by Mr. De are not strictly pertinent to the present enquiry, because they arose under the Hindu Wowen's Rights to Property Act, and the decisions therein turn upon the interpretation of the provisions of the said Act. In the case of AIR 1951 Pat 345 (Z2) an argument was advanced that the interest acquired by a widow under the Hindu Wowen's Rights to Property Act was distinct and separate from that of the coparcenary on the death of her husband.
It was held that the interposition of the widow's estate by virtue of this Act did not bring about disruption of the joint family and that the members still continued to enjoy as amongst themselves the benefit of survivorship. In the case of AIR 1953 Pat 81 (Z3), the properties had already been divided between the widow and Kedar Nath, her husband's brother, and the question was-whether on the death of her widow her moiety share devolved upon Kedar Nath or her daughters, and on a construction of the provisions of the Hindu Women's Rights to Property Act, their Lordships held that the widow does not become a coparcener with the husband's brother so as to attract the rule of survivorship and that on her death the property passed to the daughters.
In the case of AIR, 1951 Orissa 35 (Z4) it was held that the general effect of the Act was that the rule of survivorship was kept in abeyance and the widow succeeded to her husband's interest without being a coparcener. In the case of AIR 1954 Mad 227 (Z5), it was held that the object of the Act was to confer better rights on women and not to put an end to the joint family system under the Mitakshara law, and the right of the other coparcener to take by survivorship was not destroyed. It was further held that that right was only kept in abeyance.
In the case of AIR 1954 Mad 576 (Z6), the-Full Bench of the Madras High Court held that the Act conferred a new right on the widow of a deceased coparcener in modification of the preexisting law and that Section 3(2) of the Act aid not bring about a severance of interest of the deceased coparcener. It was further held that the widow was not raised to the status of a coparcener, though she continued to be a member of the joint family as she was before, and the joint family would continue as before, subject only to her statutory right, and the light to survivorship was suspended.
In none of these cases, the incidents of widow's estate, independent of the Act, were considered. The decisions in those cases do not constitute an authority for the proposition that even in case of a widow's estate not coming within the purview of the said Act, the rule of survivorship would be kept in abeyance. The suspension of the rule of survivorship is brought about not because it is inherent in the widow's estate under general law, but by legislative enactment. According to this Act, there is no disruption of the joint status of the family. Sub-section (2) of Section 3 of the Act-provides as follows: --
"When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at; the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had".
By Sub-section (3) of Section 3 the interest which she got under this Act was designated as Hindu Woman's estate, and she was given a further right of claiming partition as a male owner. So long, as she does not claim partition, the family continues to be joint, and when the family is joint, the rule of survivorship will surely come into operation. The only effect of this Act was to postpone the operation of that rule until the death of the widow. Therefore, the suspension of the rule of survivorship is not an incident of the Hindu widow's estate, but is a creation of a statute.
It will be wrong to assume, therefore, that in all cases where a widow's estate was granted, the right to succeed to the estate by survivorship was deferred until after the death of the widow, because such a proposition will militate against the fundamental rule of the Hindu Law that the right of succession to an estate of the deceased owner cannot be held in abeyance.
In a joint Hindu family a coparcener has no right to grant a widow's estate in favour of his wife without the consent of the other coparceners. But, now the widow of a deceased coparcener has been given this right under the Hindu Women's Rights to Property Act. Where, therefore, the widow's estate is not brought about by application of this Act, but is created by grant, where permissible, as in the case of an impartible estate, the same consequences as laid down in the said Act will not follow.
It is for this reason that by Sub-section (4) of Section 3, the legislature has taken care to clarify that the provisions of Section 3 would not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies. The rule enunciated by their Lordships in these cases, therefore, does not apply to a widow's estate created by the holder of an impartible estate. The contention pressed by Mr. De, therefore, fails.
24. Mr. Sinha relied upon the decisions of the Privy Council in the cases of Lajwanti v. Safar Chand', 51 Ind App 171: (AIR 1924 PC 121) (Z7) and 36 Mad 484 (R). In the former case Jawahar Mai, a Datt Brahman, living in the Punjab, died in 1852; he was survived by three wives, but at the time of his death had no children. A decree made in 1869 declared that the two widows were jointly entitled to certain villages. They so held possession of the villages until 1910, when the last surviving widow (the third wife) died.
A posthumous daughter by the second wife then claimed the villages as heir to her father. The defendants claimed title through an alleged posthumous son by the first wife, named Hira Nand, who died after a few months. If Hira Nand was the son of Jawahar Mal, he was entitled to succeed to the estate by survivorship on the death of his father. Notwithstanding this right of Hira Nand, the widows got possession by a decree given in their favour in 1869. The existence of Hira Nand was in dispute. Their Lordships of the Privy Council assumed for the purpose of that case that Hira Nand did exist, and they proceeded to observe as follows: --
'If he (Hira Nand) existed then, in the litigation which arose in 1867 and was finished in 1869, his heirs who either are, or are represented by, the various respondents in this case, were entitled totally to extrude the widows from the mauzas in question. All that the widows were entitled to was maintenance. The allegation that they were allowed to possess the mauzas in name of maintenance was not admitted to be proved, and further it is straight in the teeth of the judgment of the High Court of 1869, already quoted. It is clear, therefore, that though the judgment may have been wrong there has been adverse possession by the widows from 1869 to 1910, and the respondents' title is destroyed by Section 28, Indian Limitation Act".
Another contention raised in that case was that the widows could only possess for themselves and that the last widow would then acquire a personal title and that the respondents, and not the plaintiffs, were her heirs. To this argument their Lordships replied as follows:
"This is quite to misunderstand the nature of the widow's possession. The Hindu widow, as often pointed out, is not a life renter, but has a widow's estate, that is to say, a widow's estate in her deceased husband's estate. If possessing as widow she possesses adversely to any one as to certain parcels she does not acquire the parcles as stridhan, but she makes them good to her husband's estate. The result is that the mauzas are Jawahar Mal's estate, the respondents having no title to them, and as such the plaintiff is entitled as heir to her father to take them".
In this case, their Lordships did not apply the rule of survivorship. Jawahar Mal and his son Hira Nand were joint, and Hira Nand was entitled to succeed by survivorship. If the contention of Mr. De were to prevail, he and his heirs would have succeeded, because consistent with his argument the right to succeed by survivorship was not destroyed by the interposition of the Hindu widow's estate. The decision of their Lordships of the Privy Council, however, was just the opposite. The widow's estate which the widows of Jawahar Mal acquired by adverse possession had the effect of defeating the rights of Hira Nand. and the persons claiming through him to succeed to the state by survivorship on the expiry of the widow's estate.
25. The second case relied upon by Mr. Sinha also supports his proposition. In this case, the plaintiff instituted the suit for recovery of the properties on the ground that she was the daughter of Pedda Tippayya by his first wife. Pedda Tippayya had a brother named Chinnna Tippayya and had married a second wife Lakshmakka who was only about ten years old at his death. She died in February, 1905. The plaintiff's case was that Peda Tippayya and Chinna Tippayya were divided in interest and that they had effected an actual division of the moveable properties and the houses, but that the other properties remained in the joint enjoyment of both at the time of Pedda Tippayya's death in 1868.
Defendant 1 was in possession of the properties at that time. Defendant 1's case was that Pedda Tippayya and his brother Chinna Tippayya were undivided and that all the family properties devolved on Chinna Tippayya on the death of his brother, that Pedda Tippayya a few days before his death gave authority to Lakshmakka to make an adoption to him and that Chinna Tippayya also gave authority to Lakshmakka to adopt any one of his own sons, except the first, in the event of his begetting sons, or otherwise any other boy. The defendant contended that Chinna Tippayya also agreed to give half share of his properties to Lakshmakka and that subsequently his properties were divided. He further contended that he was adopted by Lakshmakka in 1881 and that he had since been in enjoyment of the properties obtained in the division in his own right.
In this case, it was found as a fact that the two brothers were not divided during the lifetime of Pedda Tippayya & that Lakshmakka had no authority to make an adoption. Their Lordships of the Madras High Court then addressed themselves to the consideration of the question as to in what capacity did Lakshmakka, the widow or pedda Tippayya, take a half share in the property. They held that the intention of the party was that she should have the half share as the representative of her deceased husband. They held, in substance, that the estate which she got from Chinna Tippayya was a woman's estate.
On this finding, they gave the plaintiff, the daughter of Pedda Tippayya, a decree for possession of the properties of Lakshmakka. This case also illustrates the proposition propounded by Mr. Sinha.
26. When the creation of the widow's estate by Raja Indrajit in favour of his wife had not, as appears from the above, the effect of suspending the operation of the rule of survivorship, the present case falls within the purview of the Privy Council case in AIR 1939 PC 95 (Z), and the impartible estate ceased to be the family property, with the result that on the death of the widow the properties will pass not to the members of the junior branch but to the heirs of her deceased husband.
27. It was next contended by Mr. De, relying upon the case of Chinnathayi (AIR 1952 Supreme Court 29) (I) that the holder of an impartible estate cannot by any unilateral act of his convert the estate into a separate estate. This argument also does not appear to be substantial. If the holder of an impartible estate possesses unlimited power of disposal and if in exercise of that power he creates an estate which on the death of its holder will descend to his heirs, he cannot be said to have made the impartible estate his separate property.
Assuming that it is not permissible to the holder to treat the impartible estate as a separate property by his own act, it does not follow that in exercise of his unrestricted right of disposal he cannot create an estate which on the death of the holder of such an estate will under the ordinary law descend to his heirs, as if it were his separate property. The important question is not whether by his own act he can treat the impartible estate as a separate property, but whether on his granting a widow's estate to his wife, for which he possessed ample powers, the customary mode of devolution was not altered.
I have shown that the creation of a widow's estate in respect of an impartible estate will break the customary line of succession, and the estate will thenceforth cease to be joint family property, and will descend to the heirs of Raja Indrajit and not to the junior members of the branch. The -result of the creation of the widows estate is that the property eventually becomes for the purpose of succession his separate property. If he in exercise of his unlimited power of disposal could create a widow's estate, which the junior members could not restrain, this result, however anomalous cannot be avoided. After all, the entire law of Impartible estate is anomalous and contrary to the ordinary law relating to the devolution of property.
28. The next question that falls for determination is as to who is the preferential heir to the estate of Raja Indrajit, Bhagwati Prasad Singh (Plaintiff 1) or Jitendra Pratap Bahadur Sahi (defendant 1) if as held above, the property ceased to be joint family property and the line of succession was broken. It is common ground that Bhagwati Prasad Singh being the sister's son of the last full owner, will be entitled to succeed to the properties, if the Hindu Law of inheritance (Amendment) Act (2 of 1929) hereinafter referred to as the Act, applied.
Mr. Sinha argued that on the date succession opened, that is, on the date of death of his mother the property was not disposed of by will, and on that date Bhagwati Prasad Singh was, according to the said Act, the nearest heir of the last male holder and was thus entitled to succeed. On the other hand, Mr. De argued that the essential prerequisite of the application of the Act, namely the intestacy of the male owner, was not fulfilled and, therefore, the Act had no application. He urged that the properties governed by this Act must belong to a person dying intestate. If on the date of death of the holder the properties were subject to a will, the Act did not come Into operation at all. In support of his contention, Mr. De replied strongly on the preamble of the Act which runs as follows: --
"Where it is expedient to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate: It is hereby enacted as follows:--"
According to the argument of Mr. De, therefore, the question of inheritance must be judged with reference to the date of death of such person, otherwise the expression "dying intestate" in the preamble will be meaningless. I am unable to accept this argument. The preamble cannot be pressed in aid to enlarge or restrict the scope of the substantive provisions of the Act. The preamble may be looked into to clear up obscurities in the enactment.
"If the enacting part of the statute is ambiguous, resort may be had to the preamble for assistance in the ascertainment of the statute's meaning. Conversely, if the body of the statute is clear and explicit, its meaning cannot in any manner be affected by the preamble. And more specifically, where the enabling part of a statute is clear, it is not to be restrained by the preamble. This is true because the preamble is not an essential part of a statute." (vide Section 205 of the Statutory Construction by Crawford.) Referring to the preamble of this Act, a Full Bench of the Allahabad High Court considered it unnecessary to seek its assistance to find out the true meaning of the substantive provision of the Act. (Vide Mt, Rajpali Kunwar v. Surju Rai, AIR 1936 All 507 (Z8). ) The Full Bench observed as follows :
"No doubt a preamble can be looked at when the section is ambiguous and it supplies a key to the mind of the legislature and indicates what its intention was, but where the language of the section is clear, a preamble cannot control its provisions."
Therefore, the preamble of this Act cannot determine the scope, and the meaning of the substantive provisions which as I find, are quite clear and explicit.
29. Sub-section (2) of Section 1 of the Act which embodies the substantive provision runs as follows:
"It extends to the whole of India, except, part B States, but it applies only to persons, who but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males and not held in coparcenary and not disposed of by will."
Sub-section (2) lays down only two conditions for the applicability of the Act, (1) that the property was not held in coparcenary, and (2) that it was not disposed of by will. It will be seen that the date of death of the male owner, succession to whose property is in question is wholly immaterial so far as the determination of the preferential heirs under this Act is concerned.
The words "dying intestate" as explained by the Privy Council in the case of Duni Chand v. Mt. Anar Kali, AIR 1946 PC 173 (Z9) are a description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of a Hindu male, their meaning being only "in the case of intestacy of a Hindu male." In order to attract the applicability of the Act, the only pertinent question for enquiry is whether or not the property was disposed of by will. In this case, by his will Raja Indrajit created a widow's estate in favour of his wife and made no provision for the inheritance to the estate on the termination of the widow's estate.
30. Mr. Sinha argued that, therefore, the entire estate was not covered by the will, and there was no provision at all therein how the property will devolve after the termination of the widow's estate, in case no adoption was made in pursuance of the authority given by him to his widow. Therefore, on the date of death of the widow, the Tamkohi estate cannot be said to have been disposed of by will.
It will be observed that the plaintiff does not lay any claim to the estate under the grant itself. He claims the estate not by virtue of the will, but under the rules of law determining the line oi: inheritance to a particular kind of property held by the female owner. Mr. De argued that to determine the intestacy, the material date is not the date of the death of the widow, but the date of the death of the last full owner.
This argument of Mr. De runs counter to what is now well-settled by authorities. The question becomes important only when the last male owner dies leaving him surviving a limited owner, such as a widow. If he dies without leaving a widow or daughter or any other limited owner, there is no difficulty at all. In such a case, the succession, will open immediately on his death, and the applicability of this Act will have to be judged with reference to the date of his death. The difficulty arises when there is an interposition of a limited estate, such as a widow's estate.
There are several Full Bench decisions of different High Courts, including a Full Bench decision of this Court in the case of Pokhan Dusadh v. Mt. Manoa, AIR 1937 Pat 117 (Z10) and there is unanimity of judicial opinion that the only date which is material is the date when the succession opens or when the Question of succession to the estate arises. These decisions were later affirmed by the Privy Council in the case of AIR 1946 PC 173 (Z9) above referred to. The Privy Council held, "that during the lifetime of the widow, the reversioners in Hindu law have no vested interest in the estate but have a mere spes successions or a chance of succession, which is a purely contingent right which may or not accrue, that the succession would not open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu law brought about by the Act would then be in full force. The reason is that "the death of the Hindu female owner opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to possession."
Therefore, the crucial question is the date when the succession opened, and that date is the date of death of the mother. If on that date the property was not disposed of by will, then the heir who will take possession of, the estate is the heir recognised by the Act. Therefore, plaintiff Bhagwati Prasad Singh must be held to be the nearest heir in preference to Jitendra Pratap Bahadur Sahi, defendant 1.
If the argument of Mr. De were to prevail, the position would be extremely anomalous, inasmuch as in the case of a widow's estate brought about by inheritance of gift, the heir entitled to succeed will be the one in the order of succession laid down by the Act, while in the case of a widow's estate created by will, the person entitled to succeed to the estate will be one who was the nearest heir under the Hindu law as in force before the commencement of the Act.
The application of this Act will, therefore, depend not upon the nature and character of the limited estate intervening between the date of the death of the last full owner and the date of death of the limited owner but on the mode of the creation of such an estate.
"Such a construction would introduce an element of discrimination in determining the preferential heirs and will tend to perpetuate, in such cases the old order of succession which the Act purported to undo in order to reform the Hindu law and bring.
"the ancient rules of Hindu succession into conformity with what are regarded as the changing conditions and sentiments of present day Hindu society" vide AIR 1946 PC 173 (29). Therefore, the contention of Mr. De mainfestly strikes at the very object of the enactment and cannot be accepted. It must be held, therefore, that Bhagwati Prasad Singh is the heir of the late Raja Indrajit and is entitled to succeed to the estate.
31. There is another short argument of Mr. De, and it is this: Act 2 of 1929 has -no application because the properties were held in coparcenary. The Act applies when the properties are not held in coparcenary. We are considering this question on the assumption that there was cessor of the. coparcenary, and joint status had been disrupted. Therefore, it will be arguing in circle to say that the Act had no application because the properties were held in coparcenary. This, argument, therefore, is devoid of any merit.
32. The next contention of the appellant is that the properties moveable and immoveable mentioned in Schedule 2 to the plaint are not part of the Tamkohi estate but constitute the separate properties of Raja Indrajit and that at least these properties will devolve upon plaintiff Bhagwati Prasad Singh in preference to defendant 1.
It is now well-settled that the income of an impartible estate and the accumulations of such income are the absolute property of the holder of the estate. Self-acquisitions made with the savings of the estate do not become part of the impartible estate but remain the separate property of the holder. They are not accretions to the estate as in the case of an ordinary joint family. It is, however, open to the holder of an impartible estate to incorporate, any self-acquired property of his with the estate so as to make them also impartible and descendible to a single heir.
In the absence of incorporation, such properties will continue to be the separate property of the holder. The defendants, however, do not base their case on incorporation. They raised a plea of specially family custom by which all properties held by the Raja for the time being of Tarakohi, formed part and parcel of the estate. The defendants, however, conceded that items 1 to 13 of Schedule 2 to the plaint were separate properties of Raja Indrajit. The dispute relates to the other properties mentioned in Schedule 2.
The onus to prove the special custom by which a self-acquired property of the Raja automatically becomes an accretion to the parent estate is on the person who asserts it. There is no legal evidence to prove this custom. The learned subordinate Judge relied upon Clause (a) of para 4 of the ekrarnama, Ex. B(1), dated 20-7-1895, and the deposition of Raja Indrajit, Ex. F(2), and held that these documents proved the existence of the alleged family custom.
I have considered carefully these documents, and I do not think that they are sufficient to establish conclusively that the self-acquisitions become automatically incorporated in the estate and were governed by such a custom. By Clause (a) of para 4 of the agreement, Ex. B(1), Raja Satrujit, father of Raja Indrajit, gave Kuer Sarabjit one-eighth share, in both the Tamkohi estate and the properties which he had acquired out of the income of the Tamkohi estate.
The learned Subordinate Judge considered that unless the self-acquisitions were part and parcel of the Tamkohi estate, Kuer Sarabjit must not have been given a share in these properties, and that this fact is explainable only on the ground of the existence of this custom. This agreement considered as a whole does not support the conclusion reached by the learned Subordinate Judge. There is no mention at all of any such custom in this agreement, and the allotment of a share in the separate properties of the holder is not necessarily referable to such a custom.
It is likely that Kuer Sarabjit was given a share in the separate properties to prevent curtailment of the main Tamkohi estate as far as possible. It may be that if the separate estate had been excluded, Kuer Sarabjit might have demanded the entire one-eighth share out of that estate. Any way, it is difficult to speculate upon the reasons which impelled Raja Satrujit to give Kuer Sarabjit a share in his self-acquisitions also. The fact remains that this circumstance by itself does not necessarily lead to the inference that there was in vogue a custom by which the self-acquired properties became a part and parcel of the impartible estate.
The custom is not a matter of inference by a process of ratiocination but has to be established by legal positive evidence, more particularly by evidence of actual instances, not solitary or casual, but extending over a long period of time, to remove any possible uncertainty, in which the custom was recognised openly and publicly and was given effect to. The defendants have not shown a single case in which the alleged custom was acted upon. In his deposition, Ex. F(2), Raja Indrajit stated as follows:
"The customary rule of succession according to the lineal primogeniture applies to all properties of the Raja for the time being whether move-able or immovable, provided there is no Will."
In this case there was no dispute about the custom obtaining in the family of Raja Indrajit. He merely made a general statement and this statement cannot be regarded as an admission of the -existence of the alleged custom. It may be that it was his impression. It is equally likely that what he was stating was a mere expression of opinion. Discussing the nature of the evidence necessary to prove such a custom, Mukerji, J., delivering the judgment in the Division Bench case of Debendra Lal Khan v. Pitambar Bera, AIR 1927 Cal 177 (Z11), observed as follows:
"The most cogent evidence of custom is not that afforded by the expression of opinion as to its existence but the examination of instances in which the alleged custom has been acted upon and by the proof afforded by judicial or revenue records or private records or receipts that the custom has been enforced.... Though judicial decisions are not indispensable, the acts required for the establishment of Customary Law ought to be plural, uniform and constant.... To establish a family custom of descent, one at least of two things must be shown: either a clear distinct and positive tradition in the family that such custom exists in the family, or a long series of instances of anomalous inheritance, from the family custom may be inferred....
Even if a particular rule of succession has been actually followed in a family for a series of years, it cannot be treated as binding upon the family unless it had ripened into a family custom; that it must be shown that the custom had existed from time immemorial and where the custom set up is peculiar only to a single family this rule is more strictly enforced than ever."
Therefore, the statement of Raja Indrajit, aforesaid, is not conclusive on the point.
33. Reliance was also placed on the statement of Raja Indrajit in paras 45 and 46 of the written statement in the Gorakhpur suit arid paras 27 and 43 of the Written statement of the Chapra suit. Paragraphs 45 and 46 of the written statement, Ex. D reads as follows;
"45. The property mentioned in the list (E) was acquired by Raja Krishn Pratap Bahadur Sahi with the money of the Raj and included the said property in the Raj in question from the very beginning. This property also forms part of the Raj in dispute and is impartible,
46. The whole property in dispute appertains to, and forms part of the Tamkohi Raj which is impartible although the name of Rani Rajeshar Kuari or that of Rani Tileshar Kuari, which was recorded against some property as guardians on account of the minority of their sons, might have remained recorded against that property. Similarly, although some villages were acquired in the names of these Ranis under a fictitious sale or in some other way, still they from the very beginning, continued to be included in the Raj and have been in possession of the Raja for the time being. In short, no property, forming part of the property in dispute, is separate or excluded from the Raj."
The statements in paras 27 and 43 of the written statement Ex. D(1), are as follows:
"27. That the plaintiffs are not entitled to claim any share out of the moveable and immoveable properties appertaining to the Raj Riasat Tamkohi by partition, or to ask for an account of the income thereof.
43. That the plaintiffs are not entitled to any part of the moveables which constitute the paraphernalia of the Riasat Guddi and must go with the Guddi."
There is no allegation in these paragraphs of a special family custom as set up by the defendants. Raja Indrajit simply put forward a defence to the claim of Kuer Sarabjit in regard to the moveables in his possession, but he did not plead any custom. The statements in these paragraphs only amount to saying that all the properties, moveable and immovable, are included in the estate. But no reasons for this incorporation in the estate are disclosed.
It may be that the properties in dispute were incorporated in the estate. It is well to remember, however, that the defence of the defendants is not based upon incorporation. Further, these statements are nothing but a mere expression of opinion, which as stated above, is not sufficient to establish a custom. These statements, therefore, hardly afford any evidence of custom.
The deposition of Maharani Padam Kuer, Ex. F, to which a reference was made, does not show any such custom and her deposition, as also the deposition of Raja Indrajit, shows only an expression of opinion. Their statements may have been based upon the inference that they deduced from the possession by the holder of both moveables and immovables. When the holder is the same, it is indeed difficult to distinguish the possession of the separate property from the possession of the impartible estate.
34. While the aforesaid statements are inadequate to establish a custom, there are other cir-
cumstances in the case which point to the contrary. Paragraph 1 of the petition filed by Maharani Padam Kuer in the Testamentary Case No. 12 of 1951, Ex. 3 (a), reads as follows:
"That the late Raja Indrajit Pratap Bahadur Sahi who died on 12-6-1947 at village Tamkohi, Pergana Sidhuajobna, district Deoria (Uttar Pradesh), was possessed of an impartible estate known as the Tamkohi Estate, the succession to which was governed by the rule of primogeniture. The deceased was also possessed of many items of properties both moveable and immovable not forming part of the Tamkohi Estate. A large part of the said estate is within the State of Bihar and are situate within the jurisdiction of the Hon'ble Court."
In his reply to these allegations, defendant 1 stated "that the statement made in para 1 of the petition under Section 247, "Indian Succession Act is true", vide Ex. 3 (b). It follows that according to the admitted case of the parties in that case there was no such custom. Then, there is a further fact. If the self-acquisitions formed accretion to the estate, Raja Sarabjit must not have specifically mentioned in the ekrarnamah of 1895, Ex B(1), that he owned separate properties acquired with the income of the Raj Reyasat. When once the self-acquisitions were the part of the Tamkohi estate, it was not necessary to refer to them separately.
35. Apart from this, there is no evidence that the separate property, moveable or immovable, was acquired with the savings of the impartible estate. Defendant 1, D. W. 1, expressly stated as follows;
Sursand estate did not form part of the impartible estate. The income from the estate was roughly Rs. 25,000/- to Rs. 30,000/-. I do not know what properties were acquired by Raja Saheb and at what time and from which funds he paid the consideration."
The possibility of these properties being acquired with the income of the Sursand estate cannot be precluded. There is, thus, no positive evidence that all these properties were acquired with the income of the impartible estate. The evidence that is on the record, therefore, is most uncertain arid most ambiguous to prove the existence of such a custom. Not a single instance of the application of this custom has been cited, much less proved.
When the evidence is not certain and positive and there are no instances in which the custom was followed, and there is complete uncertainty about the operation of this custom, it is difficult to hold that a custom modifying the ordinary rule of succession has been proved.
In my opinion, the defendants have utterly failed to prove the custom pleaded by them and the properties in Sch 2 of the plaint must, therefore, be held to be the separate properties of the holder of the impartible estate. In disagreement with the learned Subordinate Judge, I find that Sch 2 properties are not part and parcel of the Tamkohi estate, but constitute separate properties of Raja Indrajit.
36. The appellants next contended that the farm lands and the kharaul lands were self-acquisitions of Raja Indrajit. The respondents, on the other hand, contended that they were part of the Tamkohi estate. The plaintiffs have not produced title deeds to prove that these lands were acquired by Raja Indrajit and constituted his property. Admittedly, the villages in which these lands lie are comprised in the Tamkohi estate. It is not shown when those villages were included in the Tamkohi estate, how the farm lands were distinct from the lands of the villages forming part of the Tantkohi estate. Naturally, they will be regarded as parts and parcel of the Tamkohi estate along with the villages.
Apart from this, the plaintiffs were not quite sure about the nature of these lands. These farm lands were originally included in Schedule 5 as heritable tenancy of Rani Jagdishwari Kuer and were regarded as her personal property. Later on, they were taken out of Schedule 5 and were included in Schedule 2 comprising the separate property of Raja Indrajit and described as farm lands.
The existing Schedule 5 consists of the main Tamkohi estate and the separate properties of the Raja. Therefore, not only the plaintiffs have not adduced any evidence, but they were quite ignorant of the nature and character of these lands. It is evident that there is no evidence to prove that these lands were self-acquisitions of Raja Indrajit. Hence they must be held to be part and parcel of the Tamkohi estate.
37. Lastly, Mr. Sinha contended that so far as the lands comprised in Schs 7 and 8 to the plaint are concerned, plaintiff 1 was the preferential heir in accordance with the special order of succession laid down in Section 171, U. P. Zamindari Abolition and Land Reforms Act, 1950, as amended by U. P. Act No. 16 of 1953. Schedules 7 and 8 lands are sir, khudkast and horticultural lands in possession of the landlords.
By virtue of Section 18 of the said Act all the intermediaries have generally been given bhumidari rights in respect of their Sir, khudkast grove in which there is no tenant or occupant. All fixed-rent tenants, rent-free grantees and permanent lessees in Avadh have also been given bhumidari rights in respect of the lands or grove held by them as such, Of the three classes of tenure-holders, the bhumidar is of the highest type. He is in other words, a peasant proprietor in all respects.
It is common ground . that in the lands of these schedules, bhumidari rights have been acquired under the provisions of the said Act. The only question is who will succeed to these lands. The Tamkohi estate vested in the State of Uttar Pradesh on 1-7-1952 by virtue of the said Act. At that time, Maharani Padam Kuer, the mother of Raja Indrajit, was in possession of the estate. She, therefore, acquired bhumidari rights in these lands under Section 18 of the said Act. Maharani Padam Kuer died on 18-5-1953.
According to the line of succession laid down in Section 171 read with Section 172 of the Act, Bhagwati Prasad Singh, being the sister's son of the last male holder, was entitled to succeed to these lands in preference to defendant 1. The latter is the great-grandson of the grand-father of Raja Indrajit, and as will appear from Section 171 of the said Act, he is not an heir at all.
The devolution of these lands is governed by the special order of succession provided in Section 171 which excludes the application of all personal laws as also the Hindu Law of Inheritance Amendment Act. It will appear, therefore, that because of the special provisions contained in the said Act, plaintiff 1 is entitled to succeed to these lands in preference to defendant 1.
38. It follows from the above that the plaintiffs are entitled to a judgment in their favour. I would, therefore, set aside the judgment and decree of the learned Subordinate Judge and give the plaintiffs a decree in terms of the reliefs claimed by them. The appeal is accordingly allowed with costs throughout.
Letters Patent Appeal No. 15 of 1953:
39. Bhagwati Prasad Singh made an application under Section 258, Indian Succession Act for grant of administration de bonis non. Jitendra Pratap Bahadur Sahi opposed this application and contend-
ed that he was entitled to letters. of administration. By his order dated 21-7-1953, Ramaswami, J., sitting singly, allowed the application of Bhagwati Prasad Singh and, under Section 256, Indian Succession Act appointed him administrator for the purpose of administering such part of the estate of the testator as is still unadministered. Jitendra Pratap Bahadur Sahi has now come up in appeal.
40. In view of my findings above in the First Appeal, the appellant is not entitled in law to succeed to the Tamkohi estate. Respondent Bhagwati Prasad Singh is entitled to inherit the Tamkohi estate. Accordingly, he is the rightful person to be appointed administrator. There is, therefore, no merit in this appeal. It is accordingly dismissed with costs.
Das, C.J.
41. I am in agreement with my learned brother in the main conclusions at which he has arrived in these two cases. My learned brother has given full reasons for the conclusions at which he has arrived; he has also reviewed and examined the relevant case law cited at the Bar. As I am in agreement with my learned brother, it is unnecessary to repeat or add to the reasons which he has given.
42. I need only add this. There is no doubt that there are a number of anomalies in the legal position as respects impartible estates, as expounded by the Privy Council in their various decisions from time to time. If I may say so with great respect, the anomalies started when the Privy Council held that the holder of an impartible estate has an unfettered right of disposal, regardless of the interest of the undivided member of the family.
The principle that the holder of an impartible estate can freely alienate the estate by sale, gift or will, although the family is undivided, unless by family custom or by condition of the tenure he is precluded from so doing, as enunciated in 15 Ind App 51 (B) and followed by other later decisions, brought in a number of anomalies; the anomalies were further extended when it was held that this absolute power of alienation by the holder of an impartible estate could be exercised not only in favour of strangers but in favour of a member of the family.
Be that as it may, the accepted legal position now is that the holder of an impartible estate can make an alienation in favour of a member of the family, an alienation which may have the effect of destroying or defeating the rule of survivorship.
43. The main conclusions a"t which my learned brother has arrived are (1) there was no surrender or relinquishment by the defendants or their ancestors of their right to take the property by survivorship; (2) the will executed by Raja Indrajit in 1939 created a widow's estate in favour of his wife Rani Jagdiswari Kuer, as distinguished from a mere life estate in the English sense of the term; (3) the creation of a widow's estate in favour of Rani Jagdishwari Kuer had the legal effect of destroying the coparcenary and the property ceased to be joint family property for purposes of succession; (4) on the date of the death of the widow, Indrajit's mother was the next heir and then Bhagwati Prasad Singh was the preferential heir, being the sister's son of the last full owner, in accordance with the Hindu Law of Inheritance (Amendment) Act (2 of 1929); (5) Schedule 2 properties consitituted the separate properties of Raja Indrajit; (6) the farm lands and the kharoui lands were part and parcel of the Tamkohi estate; (7) under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950, as amended in 1953, Bhagwati Prasad Singh was the preferential heir so far as the properties comprised in Schedules 7 and 6 were concerned.
44. There is no direct and authoritative decision as to the effect of the creation of a widow's estate by the holder of an impartible estate in favour of his wife by a will In holding that the creation of such an estate has the effect of making the property cease to be joint family property and thus destroying the rule of survivorship, we are perhaps adding another anomaly to the already existing anomalies with regard to impartible estates.
No other conclusion is, however, possible if the nature of a widow's estate as known to Hindu law is properly appreciated and kept in mind. It is now well settled that a widow's estate is. not a mere life estate with a vested remainder in somebody else. If a widow is not a tenant for life taut is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death, then the whole estate is for the time being vested in her and he represents it completely.
If that be the true nature of a widow's estate, then it is difficult to see how the estate can be joint family property at the same time. If the property were joint family property even after the creation of the widow's estate, then the rule of survivorship would operate as soon as the last male holder died. It is difficult to see how the rule can remain in abeyance and at the same time the whole estate vest in the widow for the time being. On a correct appreciation of the principles of Hindu law, therefore, the conclusion is inescapable that the creation of a widow's estate has the effect of making the property cease to be joint family property; if there is no joint family property, then the rule of survivorship obviously cannot operate,
45. On the question of the application of the Hindu Law of Inheritance (Amendment) Act, 1929, in circumstances like those in the present case, there is again no direct and authoritative decision. I agree with my learned brother that the expression "dying intestate" occurring in the preamble to the Act is merely descriptive of the expression "Hindu male" occurring just before it.
So far as Sub-section (2) of Section 1 is concerned, the two restrictions are: (1) that the property is not held in coparcenary, and (2) has not been disposed of by will. So far as the present case is concerned, if the finding that the creation of the widow's estate had the effect of making the property cease to be joint family property, then the first restriction does not apply. The second restriction also does not apply because the will made no provision for the disposal of the property or estate after the death of the widow in case there was no adoption by her. I also agree with my learned brother that the relevant time for the application of the Act is When the succession opened and not when the last male holder died. Whether the property has been disposed of by will or not has to be considered at the time when the succession opened.
46. I have expressed very briefly my reasons for accepting two of the most important conclusions of my learned brother. With regard to the other conclusion of my learned brother which I also accept, it is unnecessary to add to the reasons already given by my learned brother. For the above reasons I agree that the First Appeal should be allowed with costs and the plaintiffs should get a decree in terms of the relief claimed by them, and that the Letters Patent Appeal should be dismissed with costs.