Holding

The customary rule of primogeniture ceased to apply after the Hindu Succession Act, the unregistered khorposh deed was void, and the Nagaruntari estate remained an impartible joint family property, making the defendant a co‑sharer rather than a trespasser.

Summary

Bhaiya Rudra Pratap Deo, holder of the impartible Nagaruntari estate, executed an unregistered maintenance (khorposh) deed in 1952 granting eight villages to his brother’s son, Lalu Maheshanuj. The plaintiff alleged fraud and that the deed was void under Section 12A of the Chota Nagpur Encumbered Estates Act and the Bihar Land Reforms Act, while the defendant claimed co‑sharer status under the Hindu Succession Act. The courts examined whether the customary rule of lineal primogeniture survived the Hindu Succession Act, whether the khorposh deed could confer title without registration, and whether the estate was impartible or partible. The Supreme Court held that the rule of primogeniture was a custom that ceased to have effect after the Hindu Succession Act, that the khorposh deed was void for lack of statutory sanction and registration, and that the estate remained an impartible joint family property where the defendant’s possession was as a co‑sharer, not a trespasser. Consequently, the plaintiff’s appeal was dismissed and the defendant’s appeal was allowed, restoring the lower court’s decree in favour of the defendant.

Issues considered

The rule of lineal primogeniture as a customary law – does it survive the Hindu Succession Act, 1956?
Whether the khorposh (maintenance) deed, unregistered and without Commissioner’s sanction, can convey title under the Chota Nagpur Encumbered Estates Act, 1876.
Whether the Nagaruntari estate is an impartible joint family estate or a partible estate for purposes of succession.
Whether the defendant’s possession is as a co‑sharer under survivorship or as a trespasser.
Effect of Section 6 of the Hindu Succession Act and Section 6 of the Bihar Land Reforms Act on the devolution of the estate.

Legislation cited

Bihar Land Reforms Act, 1950s. 6
Bihar Tenancy Act, 1885
Chota Nagpur Encumbered Estates Act, 1876s. 12A
Chota Nagpur Tenancy Act, 1908
Hindu Succession Act, 1956s. 4, s. 5(ii), s. 6
Registration Acts. 17, s. 49

Subjects

impartible estatelineal primogenitureHindu Succession Actsurvivorshipkhorposh deedregistrationvoid grantpartition suitjoint Hindu familycustom vs statute

Judgment

417 A

BHAIYA RAMANUJ PRATAP DEO
v.
LALU MAHESHANUJ PRATAP DEO & ORS.
8
AND VICE-VERSA

August 26, 1981

[D.A. DESAI, A.D. KOSHAL AND R.B. MISRA, JJ.]

Hindu Succession Act, 1956, sections 4 and 6, scope of-Whether the provi- c
sions of section 6 overrides the customary Rule of primogeniture-Bihar Land Re-
forms Act, section 6, applicability of-Chota Nagpur Encumbered Estates Act,
1876, section 12A., conditions to be fu/filled-lfldian Registration Act, sections 17
and 49, evidentiary value of unregistered documents of.

Bhaiya Rudra Pratap Deo was the holder of an impartible estate, known as
NaSaruntari estate, in the district of Palamau. The succession to the estate was D
governed by the rule of lineal primogeniture. Under the said rule
the eldest male member of the eldest line was to succeed to the estate
while the junior members were entitled only to maintenance grants
subject to resumption on extinction of the male line of the eldest branch. Rudra
Pratap Deo Singh had a younger brother Harihar Pratap Deo who died in a state
of jointness with his brother Rudra Pratap Deo in 1934 leaving behind his son
Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step son who also E
died in- 1937 unmarried. Bhaiya Rudra Pratap Deo executed a deed of mainte-
nance (Kborposh) on 14th April, 1952 in respect of eight villages. A dispute
arose between the parties in respect of the agricultural plots of village Sigsigi.
The proceedings under section 145 Cr!. P.C. ended in favour of Nila Bacha.
Bhaiya Rudra Pratap Deo, therefore, filed a civil suit No. 16-of 1955, on the
grounds that (a) a fraud was committed by including two villages, namely, Sigsigi
and Patihari in the formal deed of khorposh dated 14th April, 1952 and (b) that F
the .khorposh grants are void under section 12A of the Cb_ota Nagpur Encumbe-
red Estates Act and the provisions of the Bihar Land Reforms Act, 1950 and
therefore, no title accrued to the defendant on that basis. The suit was contes-
ted by the defendant on the grounds amongst others: The Nagaruntari estate
was never an impartible estate governed by the rule of primogeniture, but in
its - origin it was a non-heritable Ghatwala Jagir and it was subsequently made
heritable and raised to the status of a revenue paying estate and thus it became G
an ordinary joint family property partible amongst the members; there was no
fraud committed by any one; and with the enforcement of the Hindu Succession
Act, 1956, being a co-sharer with the plaintiff, he was entitled to remain in
possession of all the eight villages covered by the khorposh deed till partition
was made.
H
The learned Subordinate Judge held that by the khorposh deed the defen-
dan 1was given all the eight villages, but he did not acquire any interest in the
418 SUPREME COURT REPORTS [1982] I S.C.R.

A: said land as the deed was against the provisions of section 12A of the Chota
Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act; that the I
Nagaruntari Estate was an impartible estate governed by the rule of primogeniture "
but it ceased to be so after the enforcement of the Hinda Succession Act, 1956
and since Bhaiya Rudra Pratap Deo died, during the pendency of the suit and
after this Act had come into force, the succession would be governed by survivor-
ship and as such the legal representatives of the plaintiff as well as the defendant
B would succeed. The first appellate court held that : (a) inasmuch as the khor··
posh grant was not made with the sanction of the Commissioner, the grant was
void under section 12A of the Chota Nagpur Encumbered Estates Act; and (b}
because the possession of the ex-proprietor with respect to the Bakasht land
became that of a raiyat under the State of Bihar and raiyati right was not trans.
ferable without a regfatered document, the pos~ession of the defendant was on
the basis of a void agreement; and (c) that after the death of Ehaiya Rudra
c Pratap Deo, section 6 of the Hindu Succession Act became applicable and both
appellants and the defendants were entitled to succeed as co-sharers.

The second appeal by the plaintiffs was partly allowed inasmuch as the
High Court found that the heirs of Rudra Pratap Deo were entitled to get a
decree for possession of the suit land jointly with the sole defendant as also for
mesne profits for their share, i.e. one half in addition to the entire mesne profits
D to which Rudra PrataP Deo was entitled in his life time. Both the parties have
come up in appeal to this Ccurt against tl'e judEment and decree of the High
Court to the extent it went against them.

Dismissing the plaintiff's appeal and allowing that of the defendant, the
Court

E HELD : 1. A bare perusal of section 4 of the Hindu Succession Act, 1956
indicates that any custom or usage as part of Hindu law in force will cease to
have effect after the enforcement of Hindu Succession Act with respect to any
matter for which provision is made in the Act. If ru1e of lineal primogeniture in
Nagaruntari estate is a customary one it will certainly cease to have effect, even
though it was part of Hindu law. (426 D-EJ

F 2. Section 5(ii) of the Hindu Succession Act, 1956 protecls an estate which
descends to a single heir by the terms of any covenant or agreement entered into
or by the terms of any enactment inasmuch as Hindu Succession Act is Dot appJi.
cable to such an estate. Section 5(ii) stands as an exception to section 4 of the
Act. (426 G-H]

The rule of lineal primogeniture in the instant case, is not a statutory rule
G but a custcmary rule and therefore, it is not saved by section S(ii) of the Hindu
Succession Act. (426 H,427 A]

3. Section 6 of the Bihar _Land Reforms Act only contemplates that the
land will be deemed to be settled by the Stat~ with such intermediary and he
shall be entitled to retain possession thereof fDd hold it as a raiyat under the
.H state having occupancy rights in respect of such land subject to 'payment of
fair and equitable rent. Rut if the intermediary was in possession in a repre-
sentat'ive ca·pacity on bfhalf Of the otlier toParceners as a necessary ccroUary
BHAJYA RAMANUJ V. MAHESHANUJ 419

the land will be deemed to be settled with all those persons on whose behalf A
one particular intermediary was in khas possession. Consequently if the
possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners
the land will be deemed to be settled with all those coparceners and they
shall all become raiyats. Here, the joint status of the family continued and
therefore, after the death of Bhaiya Rudra Pratap Deo, his interest developed
on other coparceners as well. (429 C-F]
B
4 : 1. Admittedly the defendant was a member of a joint Hindu family.
Even in an impartible estate he was entitled to maintenance and the land in
' dispute had admittedly been given to the defendants by the impartible estate
holders. This possession therefore, cannot be taken the possession of a
tresspasser. [431 Al

4: 2. Section 12A of the Chota Nagpur Encumbered Estates Act, 1876
c
would be attracted only when possession and enjoyment of the property
is restored under the circumstances mentioned in the first or the third clause of
section 12. The onus to prove that the conditions contemplated by section 12
were satisfied lay on the plaintiff, which he failed to do, [430 D-E]

4 : 3. The maintenance deed can be looked into for collateral purpose D
of ascertaining the nature of possession. Khorposh (maintenance) deed is a
document which requires registration within the meaning of section 17 of the
Indian Registration Act and as the document was not registered it cannot be
received as evidence of any transaction affecting such property. Proviso to
section 49, however, permits the use of the document, even though unregiste·
red, as evidence of any collateral transaction not registered to be effected by
registered instrument. (430F-H] E
-,
5 (a) A bolder of an irnpartible estate can alienate the estate by gift
intervivos or even by will, though lhe family is undivided, the only limitation on
this power would flow from a family custom to the contrary or from the condi·
tion of the tenure which has the same effect. Therefore, it is not correct to say

- that the impartible estate would go to holder's succes~ors alone and not to the
other members or the family by survivorship. (431 B-C, 435 C-D]

(b) It must be taken to be weII settled that the estate which is impartible
F

by custom cannot be said to be the separate or exclusive property of the holder
of the estate. If the holder has got the estate as an ancestral estate and he has
succeeded by primogeniture, it will be a part of the joint estate of the undivided
family. [433 D-El
G
In the case of an ordinary joint family property the members of the
family can claim four rights: (1) the right to partition, (2) the right to restrain
alienation by the head of the family except for necessity, (3) the right to main·
tenance, and (4) the right of survivorship. It is obvious that from the very nature
of the property which is impartible the first three rights cannot exist. The fourth
right viz., the right of survivorship, however, still remains and it is by reference H
to this right that the property, though impartible, has in the eyes oflaw, to be
regarded as joint family property. The right of survivorship which can be cla.im-
420 SUPREME COURT REPORTS [1982] 1 s.c.R.

A ed by the members of the undivided family which owns the impartible e"tate I
should not be confused with mere spec successionis. Unlike spec successionis
the right of survivorship can be renounced or surrendered. [433 G-H, 434 A-B]
"
Rajah Velugoti Kumara Krishna Yarhendra Varu and Ors. v. Rajah Velugoti
Sarvagna Kumara Krishna Yachendra Varu and Ors. [1970] 3 SCR 88: Raja Rama
Rao v. Raja of Pittapur, [1918] L.R. 45 I.A. t.: 8; Hargovind Singh v. Collector
B of Etah, A.IR. 1937 All. 377 and Raja Rao Venkata Surya Mahipati Rama
Krishna Rao Bahadur v. Court of Wards, [1899] L.R. 26 I.A. 83, discussed and
distinguished.

Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur
and Ors. v. Shri Pushavathi Visweswar Gajapathi Raj and Ors. [1964] 2 SCR 403,
applied.
(
Chinnathayal tJlias Veeralakshmi v. Kulasekara Pandiya Naicker and Anr.
[1952] SCR 241, referred to.

6. The overwhelming evidence on the record, in the instant case, categori-
cally proves: (a) that the disputed estate was an impartible estate till the death
of the original plaintiff in 1957; and (b) it is open to a co-sharer to remain in
pos~ession of the joint property and the proper remedy for the plaintiff in such
D case is to file a suit for partition where the equities of the parties would be adjus-
ted and not a suit for possession of plots of one village and for mesne profits.
[ 436 B, 437 B-D]

Collector of Bon1bay v. Municipal Corporation of the City of Bombay and
Ors. A.I.R. 1951 SC 469, held inapplicable.
E
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 209 &
2280 of 1970.

CA. No. 209/70 arising out of certificate & CA. No. 2280/70
arising out of special leave from the common judgment and decree
dated the 28th February, 1968 of the Patna High Court in Appeal
F from Appellate Decree No. 1055 of 1962,

S.C. Misra and U.P. Singh, for the Appellant in C.A.
No. 209/70 and for the Respondent in CA. No. 2280/70.

K.K. Sinha, S.K. Sinha and M.L. Chibber for the Appellant
G in CA. 2280/70 and for the Respondent in C.A. 209 of I 970.

The Judgment of the Court was delivered by

MISRA J. These two connected appeals are directed against a
H common judgment dated 28th February, 1968 of the Patna
High Court, the first one by certificate and the second by special
leave.
BHAIYA RAMANUJ v. MAHESHANUJ (Misra, J.) 421

Bhaiya Rudra Pratap Deo was the holder of an impartible A
estate, known as Nagaruntari estate, in the district of Palamau. The
succession to the estate was governed by the rule of lineal primo-
geniture. Under the said rule the eldest male member of the
eldest line was to succeed to the estate while the junior members
of the family were entiled only to maintenance grams subject to
resumption on extinction of an heir in the male line of the eldest
branch.

It appears that the estate was accorded protection nnder the
Chota Nagpur Encumbered Estates Act, 1876, on the application
of Bhaiya Rudra Pratap Deo as per notification dated 17th March,
1932 published in the Bihar Gazette dated 23rd March, 1932 and c
after liquidation of debt it was released from the operation of
Chota Nagar Encumbered Estates Act in October 1945. Eventually
the estate vested in the State of Bihar under the Bihar Land Reforms
Act, 1950 in pursuance of a notification dated 5th of Novem-
ber, 1951. Harihar Pratap Deo, who was the younger brother of
Bhaiya Rudra Pratap Deo, had died in a state of jointness with his D
brother Bhaiya Rudra Pratap Deo in 1934 leaving behind his son
Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step
son who also died in 1937 unmarried. Lalu Maheshanuj Pratap
Deo demanded land for khorposh (maintenance) from Bhaiya
Rudra Pratap Deo in 1950. Bhaiya Rudra Pratap Deo executed a
deed of maintenance on 14th of April, 1952 in respect of eight E
villages in favour of Lalu Mabeshanuj Pratap Deo. A dispute,
however, arose between the parties in respect of the plots of village
Sigsigi which culminated in a proceeding under section 144 Cr. P.C.

- The proceedings were, however, later converted into proceedings
under section 145 Cr. P.C. which ended in favour of Lalu Maheshnuj
Pratap Deo on 4th of July, 1955. Bhaiya Rudra Pratap Deo feeling
aggrieved by the order filed a suit which has given rise to the present
F

- appeals and which was later on numbered as suit No. 16 of 1955,
against Lalu Maheshanuj Pratap Deo alias 'Nila Bacha' in respect
of the agricultural plots of village Sigsigi and the grains in the
custody and control of the police, Bisrampur, district Palamau.
G
The case of the plaintiff is as follows : After the vesting of
the estate in the State of Bihar the defendant approached him with a
request that the plaintiff should give him the villages Bhojpur, Jaungi-
pur, Chitri, Robila, Bhandar and Khundra but the plaintiff declined H
to do so as section 12A of the Chota Nagpur Encumbered Estate Act
and the provisions of the Bihar Land Reforms Act stood as a bar.
422 SUPREME COURT REPORTS [I 982] I s.c.R.

A The defendant, however, implored and wanted to take a chance I
and try his luck. On the beseechment of the defendant the plaintiff "
allowed him six villages only, namely Bhojpur, Jaungipur Citri, Rohila,
Bhandar and Khundra subject to acceptance of the State of Bihar.
There was neither any proposal for villages Sigsigi and Patihari nor
had the plaintiff ever agreed to give these two villages to the defen-
B dant. A formal unstamped and unregistered deed of Khorposh
(maintenance) was no doubt created in respect of only six villages
on 14th of April, 1952 subject to the approval of the authorities.
The defendant, however, in collusion with the plaintiff's employees
and ex·employees and without the knowledge and information of
the plaintiff managed to use the plaintiff's signature and manufac-
c tured evidence to show that the two villages Sigsigi and Patihari
had also been included in Khorposh grant and included these two
villages in the formal deed dated 14th of April, 1952 in collusion
with the typist and designing persons bv perpetrating fraud on the
plaintiff.
D
When the plaintiff came to know of the fraud and fabrication
of the defendant he lodged protest before the authorities and
the authorities refused to accept the plea of khorposh and
they ordered the villages to be included in the compensation
list of the plaintiff and the rent of all the sirjot lands was fixed in
E favour of the plaintiff. Thus, no khorposh grant remains even in
respect of the six villages and such grants, if any, are void under
section 12A of the Chota Nagpur Encumbered Estates Act and
the provisions of the Bihar Land Reforms Act. Even assuming
for the sake of argument that the two villages Sigsigi and Patihari
- were included in the deed dated 14th of April, 1952, the transfer is
F
void ab initio and no title accrued to the defendant on that basis.

At the time of proceedings under section 145 Cr. P.C. paddy
crops grown by the plaintiff were standing and on the petition of
the plaintiff the same were harvested by the police. Subsequent cul-
tivation was also done through the police, Bisarampur and the
plaintiff ls entitled to all the grains in the custody of the police.
G
On these allegations the plaintiff sought a declaration that
the land in dispute, detailed in Schedule A, situated in village
Sigsigi was the khasjot land of the plaintiff, that the defendant
H had no concern therewith and that he (the plaintiff) was entitled to
the grain or the value thereof as detailed in Schedule B. The
plaintiff also claimed a relief for possession over the disputed plots
BHAIYA RAMANUJ v. MAHESEIANUJ (Misra' J.) 423

\ and the grain or the value thereof. A relief for mesne profits to be A
v
ascertained in subsequent proceedings was also claimed.

Bhaiya Rudra Pratap Deo, the plaintiff, died during the pen-
dency of the suit and his two sons and four widows got themselves
substituted in his place. His eldest son, Bhaiya Ramanuj Pratap
Deo filed a petition before the Trial Court for substitution in place 8
of his deceased father alleging that the Nagaruntari Estate was an
impartible estate governed by the rule of lineal primogeniture under
which the eldest son alone is entitled to succeed his father. His
prayer was allowed. Subsequently the second son of Bhaiya Rudra
Pratap Deo and his widows filed a petition for being substituted.
The Sub-Judge impleaded all these persons provisionally as plaintiffs c
ordering to strike out an issue as to which of them was or were
entitled to the fruits of the litigation, if eventually the court decided
the suit as against the defendant. The conduct of the suit was
given to plaintiff No. 1 under the provisions of rule I I.. Order
I C.P.C.
D
The suit was contested by the defendant on the following
grounds amongst others : The Nagaruntari estate was never an
impartible estate governed by the rule of lineal primogeniture but in
its origin it was a non-heritable Ghatwala Jagir and it was subse-
quently made heritable and raised to the status of a revenue paying E
estate and thus it became an ordinary joint family property partible
amongst the members. His father died in a state of jointness with
Bhaiya Rudra Pratap Deo sometime in 1934 when he was only four
years old and he was living under the guardianship of his uncle.
He was made to carry an impression, due to propaganda made by
his uncle Bhaiya Rudra Pratap Dea that Nagaruntari estate was an F
impartible estate and being under this wrong impression he subse-
quently filed an application against his uncle in 1950 claiming khor-
posh grant of 22 villages including village Sigsigi from out of
Nagaruntria estate and also partition of the self-acquired property of
his grand-father. That application was, however, rejected. The
Nagaruntari estate later on vested in the State of Bihar under the G
Bihar Land Reforms Act. Thereafter Bhaiya Rudra Pratap Deo of
his own accord executed a khorposh deed in his favour in respect of
eight villages including Sigsigi and got it typed in his house and sent
it to him with a direction to take possession of the eight villages and
accordingly he took possession of the same. The defendant denied H
that he had fraudulently got Sigsigi and Patihari villages inserted in
the Khorposh deed or that this deed was illegal. The defendant
424 SUPREME COURT REPORTS [1982] l S.C.R.

A claimed that he was a co-sb_arer with the plaintiff and was entitled to
remain in possession of all the eight villages covered by the Khorposh
deed till partition was made,

The Subordinate Judge held that by the khorposh deed Bhaiya
Rudra Pratap Deo had in fact given to the defendant in khorposh
B eight villages including village Sigsigi but the defendant did not
acquire any interest in the said land on the basis of the khorposh
deed as the same was against the provisions of section 12A of the
Chota Nagpur Encumbered Estates Act and the Chota Nagpur
Tenancy Act; that Nagaruntari estate was an impartible estate gover-
ned by the rule of lineal primogeniture but it ceased to be so after
c the enforcement of the Hindu Succession Act, 1956 in June 1956 and
since Bhaiya Rudra Pratap Deo died after this Act came into force
the succession to the estate would be governed by survivorship as
contemplated by section 6 of the Hindu Succession Act. As such
the plaintiffs, as well as the defendant would succeed. The defen-
dant is thus entitled to remain in possession of the said property as
D one of the co-owners and the plaintiffs could not claim an exclusive
khas possession till the matter is decided in a partition suit. On
these findings he dismissed the suit.

Feeling aggrieved by the decision heirs and legal representatives
of Bhaiya Rudra Pratap Deo, the deceased plaintiff, preferred an
E appeal. On appeal the District Judge confirmed the findings of the
Trial Court. He, however, held that the grant of khorposh by
Rudra Pratap Deo after the release of the estate from the manage-
ment of the Chota Nagpur Encumbered Estates Act was void under
section l 2A of the Act as the khorposh grant was not made with the
sanction of the Commissioner and also because the possession of the
F
ex-proprietor with respect to the Bakasht land became that of a
raiyat under the State of Bihar and the raiyati right was not trans-
ferable without a registered document. Thus, the possession of the
defendant was on the basis of a void document. The learned Judge
further held that the document of khorposh being unregistered was
G not admissible in evidence but it could be used for a collateral pur-
pose of explaining the nature of possession; that the defendant
being a minor member of the family was put in possession of the
property covered by it by the bolder of the estate and his possession
was as khorposh-holder (maintenance holder) and not as a trespasser
H and he was not liable to be evicted. The Nagaruntari estate was
found to be an impartible estate where succession was governed by
BHAIYA RAMANUJ v. MAHESHANUJ (Misra, J.) 425

the rule of lineal primogeniture. But after the death of Bhaiya A
Rudra Pratap Deo section 6 of the Hindu Succession Act became
applicable and the devolution of the property would not be gover-
ned by the rule of lineal primogeniture but by the ordinary rule of
succession as is provided under the Hindu Succession Act. It was
also held that Rudra Pratap had died in a state of jointness with
the defendant and after Hindu Succession Act came into force the
B
Nagaruntari estate became an ordinary joint family property of the
parties and that the possession of the defendant was as a co-sharer.
On these findings the appeal filed by the plaintiffs was dismissed by
the District Judge.

Undaunted, the plaintiffs preferred a Second Appeal in the
c
High Court which was partly allowed inasmuch as the High Court
found that the heirs of Rudra Pratap were entitled to get a decree
for possession of the suit land jointly with the sole defendant as
also for mesne profits for their share, that is, one-half in addition
to the entire mesne profits to which Rudra Pratap was entitled in D
his lifetime. Both the parties have come up in appeal to this Court
against the judgment and decree of the High Court to the extent it
went against them.

First we take up appeal No. 209 of 1970 filed by Bhaiya
Ramanuj Pratap Deo, heir and legal representative of deceased E
plaintiff.

Mr. SC. Misra assisted by Mr. U.P. Singh raised a number of
contentions. His first contention is that the rule of lineal primo-
geniture survived even after the enforcement of the Hindu Succession
Act. To appreciate the contention it will be necessary to examine F
the relevant provisions of the Act. Section 4(1) (a) of the Act
Jays down:

"4. (1) Save as otherwise expressly provided in this
Act--
G
(a) any text, rule or interpretation of Hindu Law or
any custom or usage as part of that Jaw in force
immediately before the commencement of this
Act shall cease to have effect with respect to any H
matter for which provision is made in this
Act."
426 SUPREME COURT REPORTS [ 1982] l S,C.R.

Section 6 of the Act provides :
A
"6. When a male Hindu dies after the commence-
ment of this Act, having at the time of his death in interest
in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving
members of the coparcenary and not in accordance with
B this Act :

Provided that, if the deceased had left him surv1vmg a
female relative specified in class I of the Schedule or a male
relative, specified in that class who claims, through such
female relative, the interest of the deceased in the Mitak-
c shara coparcenary property shall devolve by testamentary
or intestate succession, as the case may be, under this Act
and not by survivorship."

A bare perusal of section 4 would indicate that any custom or
usage as part of Hindu law in force will cease to have effect
after the enforcement of Hindu Succession Act with respect to any •.
D
matter for which provision is made in the Act. If rule of lineal pri-
mogeniture in Nagaruntari estate is a customary one it will cer-
tainly cease to have effect, even though it was part of Hindu
law.

E Faced with this situation the learned counsel for the appellant
invokes section 5 (ii) of the Hindu Succession Act. Insofar as it is
material for the present discussion it reads :

"5. This Act shall not apply to :-

(i)
F
(ii) any estate which descends to a single heir by the terms
of any covenant or agreement entered into ...... or by
the commencement of this Act."

This section protects an estate which descends to a single heir
G by the terms of any covenant or agreement entered into or by the
terms of any enactment in as much as Hindu Succession Act is not
applicable to such an estate. This section stands as an exception to
section 4 of the Act referred to above.

H It is urged by Shri Misra that the rule of lineal primogeniture
in the instant case is a statutory rule and not a customary rule and
BHAIYA RAMANUJ v. MAHESHANUJ (Misra, J.) 427

therefore it is saved by section 5 (ii) of the Hindu Succession Act. A
In support of his contention he placed reliance upon Bengal Regula-
tion 10 of 1800. Bengal Regulation 10 of 1800 reads as under:

(i) By Regulation 11, 1798 the estates of proprietors of
land dying intestate are declared liable to be divided
among the heirs of the deceased agreeably to the Hindu
or Muhamdan laws. B

A custom, however, having been found to prevail in the
jungle Mahals of M1dnapore and other districts by which
the succession to the landed estates invariably devolves to a
single heir without the division of the property ...... the
Governor General-in-Cour cil has enacted the following rule
to be in force in the Provinces of Bengal, Bihar and Orissa
c
from the date of its promulgation.

Regulation 11, 1798 (2) shall not be considered to
supersede or affect any established usage which may have
obtained in the jungle Mahals of Midnapore and other
districts, by which the succession to landed estates, the pro-
D
prietor of which may die intestate, has hitherto been
. q considered to devolve to a single heir, to the exclusion of
the other heirs of the deceased.

In the Mahals in question the local custom of the
country shall be continued in full force as heretofore, and E
the Courts of Justice be guided by it in the decision of all
.claims which may come before them to the inheritance of

- landed property situated in those Mahals."

The following propositions are clearly deducible from this
Regulation : F
(a) The Regulation takes note of an earlier Regulation
(Regulation No. 1 I of 1798) according to which the
estate of a proprietor of land dying intestate was to be
divided amongst his heirs according to his personal G
law.

(b) It further notes that a custom had been found to pre-
vail in certain areas by which land devolved on a single
heir.
H
(c) It then lays down that such a custom would not be
deemed to have been superseded by Regulation No. 11
428 SUPREME COURTS REPORTS ( 1982] l S.C.R.

A of 1798 and that in the said areas such custom shall
be rule of decision.

This analysis of the Regulation leads to the further proposi-
tion that it did not by its own force declare that any estate would
descend to a single heir. All that it did was to keep alive the custom
H sanctioning the rule of primogeniture entailing impartibility of the
estate. The rule of custom was thus recognised as such and
no estate by the terms of the Regulation itself was !pade to descend
to a single heir. In this view of the matter clause (ii) of section 5
of the Hindu Succession Act does not cover such a custom.

c Alternatively it was argued that even if the rule of lineal pri-
mogeniture did not survive after the enforcement of the Hindu
Succession Act the suit land will be deemed to be settled with the
plaintiff under section 6 of the Bihar Land Reforms Act and the
plaintiff became the exclusive owner of the suit land. Section 6
of the Bihar Land Reforms Act, 1950, insofar as it is material for
D this case reads :

6. (1) On and from the date of vesting all lands used for
agricultural or horticultural purposes, which were in
'khas' possession of an intermediary on the date of
such vesting, including :-

(a) (i) proprietor's private lands let out under a
lease for a term of years or under a lease from

F
(ii)
year to year, referred to in Sec. 116 of the
Bihar Tenancy Act, 1885 (8 of 1885),

landlord's privileged lands let out under a
registered lease for a term exceeding one year
-
or under a lease, written or oral, for a period
of one year or less, referred to in Sec. 43
of the Chota Nagpur Tenancy Act, 1908 (Ben.
G Act 6 of 1908),

(bl lands used for agricultural or horticultural pur-
poses and held in the direct possession of a tem-
porary lease of an estate or tenure and cultivated
H by himself with his own stock or by his own ser-
vants or by hired labour or with hired stock, and
BHAIYA RAMANUI v, MAHESHANUJ (Misra, J.) 429

(c) lands used for agricultural or horticultural pur- A
poses forming the subject matter of a subsisting
mortgage on the redemption of which the inter-
mediary is entitled to recover 'khas' possession
thereof ; shall subject to the provisions of Sec. 7 A
and 7 B be deemed to be settled by the State
with such intermediary and he shall be entitled to B
retain possession thereof and hold them as a
'raiyat' under the State having occupancy rights in
respect of such lands subject to the payment of
such fair and equitable rent as may be determined
by the Collector in the prescribed manner."
c
This section only contemplates that the land will be deemed
to be settled by the State with such intermediary and he shall be
entitled to retain possession thereof and hold it as a raiyat under
the State having occupancy rights in respect of such land subject to
payment of fair and equitable rent. But if the intermediary was D
in possession in a representative capacity on behalf of the other
coparceners, as a necessary corollary the land will be deemed to be
settled with all those persons on whose behalf one particular inter-
mediary was in khas possession. Consequently if the possession of
Bhaiya Rudra Pratap Deo was on behalf pf other coparceners the
land will be deemed to be settled with all those coparceners and E
they shall all become raiyats.

It is nobody's case that there has been any partition between
the plaintiff and the defendant. The joint status of the family
continued and, therefore, after the death of Bhaiya Rudra Pratap
Deo his interest devolved on other coparceners as well. F
It was next contended for the appellant that the defendant
got the land under a khorposh deed which was void ab initio and,
therefore, the status of the defendant was that of a trespasser
and he was liable to ejectment on the suit of the plaintiff.
According to the appellant the khorposh deed was void for two G
reasons : firstly beause there was no sanction of the Commissioner
for the deed as contemplated by section 12 A of the Chota Nagpur
Encumbered Estates Act, 1876; secondly because the deed was
neither stamped nor registered, In order to appreciate the first
reason it is pertinent to read section 12 A insofar as it is material
for the purpose of the case : H
"12 A (I) When the possession and enjoyment of
430 SUPREME COURT REPORTS [1982) l S.C,R.

A property is restored, under the circumstances mentioned
in the first or the third clause of section 12, to the
person who was the holder of such property when the
application under section 2 was made, such person
shall not be cpmpetent, without the previous sanction
of the Commissioner,-
B
(a) to alienate such property, or any part thereof, in
any way, or

(b) to create any charge thereon extending beyond his
lifetime.
c
(2)

(3) Every alienation and charge made or attempted in con-
travention of sub-section (I) shall be void."

D Section 12 A would be attracted only when possession and
enjoyment of the property is restored under the circumstances
mentioned in the first or the third clause of section 12. It was for
the plaintiff to show thµt the conditions contemplated by sec-
tion 12 were satisfied, which be has failed to do.

E
As regards the second reason, the argument is based on sec-
tion 17 read with section 49 of the Indian Registration Act. Sec,
tion 17 of the Registration Act enumerates the documents requiring
registration. Section 49 of the Registration Act provides that no
document required by section 17 or by any provision of the Transfer
of Property Act, 1882 to be registeted shall be (a) affect any immova- •
F
ble property comprised therein, (b) ... (c) be received as evidence of
any transaction affecting such property or conferring such power,
unless it has been registered. Khorposh (maintenance) deed is a
document which requires registration within the meaning of sec-
tion 17 of the Indian Registration Act and as the document was not
registered it cannot be received as evidence of any transaction
G
affecting such property. Proviso to section 49, however, permits
the use of the document, even though unregistered, as evidence of
any collateral transaction not required to be effected by registered
instrument. In this view of the legal position the maintenance
H deed can be looked into for collateral purpose of ascertaining the
nature of possession.
BHAIYA RAMANUJ v. MAHESHANUJ (Misra, J.) 431

Admittedly the defendant was a member of a joint Hindu A
family. Even in an impartible estate he was entitled to maintenance
and the land in dispute had admittedly been given to the defendant
by the impartible estate holder. His possession, therefore, cannot
be taken to be the possession of a trespasser and the High Court in
our opinion has erred in branding the defendant as a trespasser.
8
This leads us to the last, but not the least in importance, con·
tention raised on behalf of the appellants. According to Shri S.€.
Misra the original plaintiff being holder of an impartible estate,
his estate would go to his sucessors alone and not to the other
members of the family by survivorship. The learned counsel relied
upon the following cases in support of his contention : Rajah c
Velugoti Kumara Krishna Yachendra Varu & Ors. v. Rajah Velugoti
Sarvagna Kumara Krishna Yachendra Varu and Ors.,( 1) Raja Rama
Raa v. Roja of Pittapur,(') Hargovind Singh v. Collector of Etah,(')
Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v.
Court of Wards.(')
D
In Rajah Velugoti Kumara Krishna Yachendra Varu and Ors.
v. Rojah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors.,
(supra)tbe first and the foremost case relied upon, a contention was
raised on behalf of the plaintiff that the property of the impartible
estate was held in coparcenary as joint family property and became
partible amongst the members once it lost its character of impar!ibi- E
lity. In other words the contention was that the junior members
had a present interest in the impartible estate and were entitled to a
share in the estate once impartibility was removed. This argument
was repelled and this Court observed :

"In our opinion there is no justification for this argu- F
ment. The law regarding the nature and incidents of
impartible estate is now well settled. Impartility is essen ·
tially the creature of custom. The junior members of a
joint family in the case of ancient impartible joint family
estate. take no right in the property by birth, and there-
fore, have no right of partition having regard to the very G
nature of the estate that is impartible. Secondly, they have

(!) [1970] 3 SCR 88.
(2) [1918] LR 45 I.A. 148. H
(3) AIR 1937 All. 377.
(4) [1899] LR 26 I,A. 83,
432 SUPREME COURT REPORTS [1982] ] S.C.R.

A no right to inerdict alienation by the head of the family
either for neeessity or otherwise." I

This Court, however, further exposed the legal position in
these words :
"To this extent the general law of Mitakshara applica-
B ble to joint family property has been modified by custom
and an impartible estate, though it may be ancestral joint
family estate, is clothed with the incidents of self-acquired
and separate property to that extent. The only vesting of
the incident of joint family property, which still attaches
to the joint family impartible estate is the right of survivor-
c ship which, of course, is not inconsistent with the custom
of impartibility. For the purpose of devolution of the pro-
perty, the property is assumed to be joint family property
and the only right which a member of the joint family
acquires by birth is to take the property by survivorship
but he does not acquire any interest in the property
D itself. The right to take by survivorship continues only so
long as the joint family does not cease to exist and the
only manner by which this right of survivorship could be
put an end to is by establishing that the estate ceased to be
joint family property for the purpose of snccession by pro-
ving an intention, express or implied, on behalf of the
E junior members of the family to renounce or surrender the
right to succeed to the estate."
The observations extracted above are self-explanatory and do
not support the contention of the appellant, iather they support the
defendant-respondent.
F In Raja Rama Rao v. Raja of Pittapur (supra) it was held :

"An impartible Zamindari is the creature of custom;
-
it is of its essence that no coparcenary in it exists. Apart,
therefore, from custom and rel1tionship to the holder
the junior members of the family have no right to main-
G tenance out of it."
In Hargovind Singh v. Collector of Etah (supra) the Allahabad
High Conrt quoted with approval the following observations made
by the Privy Council in Baifnath Prasad Singh v. Tej Bali
H Singh:(')

(I) 43 All. 228 PC.
BHAIYA RAMANUJ v. MAHESHANUJ (Misra, J.) 433

" ... Zamindari being the ancestral property of the joint A
family, though impartible, the successor falls to be designated
according to the ordinary rule of the Mitakshara law, and
that the respondent being the person who in a joint family
woul 1, being eldest of the senior branch, be the head of
the family is the person designated in this impartible raj to
occupy the Gad di." B
In Raja Rao Venkata Surya Mahipati Rama Krishna Rao
Bahadur v. Court of Wards (supra) it was laid down that an imparti-
ble zamindari was not inalienable by will or otherwise by virtue only
of its impartibility, and in the absence of proof of some special
family custom or tenure attaching to the zamindari and having c
that effect.

This question, however, need not detain ns long as this Court
had the occasion to' consider the point at great length in Mirza
Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur
and Ors. v. Shri Pushavathi Visweswar Gajapathi Raj and Ors.(1) D
Dealing with the point in question this Court observed as follows :

"Since the decision of the Privy Council in Shiba
Prasad Singh v. Rani Prayag Kumari Debi(') it must be

- taken to be well settled that an estate which is impar-
tible by custom cannot be said to be the separate or
exclusive property of the.holder of the estate. If the holder
has got the estate as an ancestral estate and he has succee-
ded to it by primogeniture, it will be a part of the joint
E

estate of the undivided Hindu family. In the illuminating
judgment delivered by Sir Dinshah Mulla for the Board, the
relevant previous decisions bearing on the subject have been F
carefully examined and the position of law clearly stated.
In the case of an ordinary joint family property, the
members of the family can claim four rights : (I) the right
of partition ; (2) the right to restrain alienations by the
head of the family except for necessity; (3) the right of
maintenance, and (4) the right of survivorship. It is obvious G
that from the very nature of the property which is imparti-
ble tbe first of these rights cannot exist. The second is
also incompatible with the custom of impartibility as was
laid down by the Privy Council in the case of Rani Sartaj
H
(l) [1964) 2 SCR 403.
(2) [1932) LR 59 I.A, 331.
434 SUPREME COURT REPORTS [1982] 1 S.C.R.

A Kuari v. Deoraj Kuari(') and the First Pittopur case-Venkata
Surya v. Court of Wards('). Even the right of maintenance as
a matter of right is not applicable as laid down in the Second
Pittapur case-Rama Rao v. Roja of Pittapur("). The 4th
right viz., the right of survivorship, however, still remains
and it is by reference to this right that the property, though
B impartible, has, in the eyes of law, to be regarded as joint
family preperty. The right of survivorship which can be
claimed by the members of the undivided family which
owns the impartible estate should not be confused with a
mere spes successionis. Unlike spes .<uccessionis, the right of
survivorship can be renounced or surrendered.
c
It also follows from the decision in Shiba Prasad Singh's
case(') that unless the power is excluded by statute or
custom, the holder of customary impartible estate, by a
declaration of his intention can incorporate with the estate
D
self-acquired immovable property and thereupon, the pro-
perty accrues to.the estate and is impressed with all its inci-
r.,.
~'·

dents, including a custom of descent by primogeniture ... !!
would be noticed that the effect of incorporation in such
cases is the reverse of the effect of blending self-acquired
property with the joint family property. In the latter cate·
gory of cases where a person acquires separate property
E and blends it with the property of the joint family of
which be is a coparcener, the separate property loses its
character as a separate acquisition and merges in the joint
family property, with the result that devolution in respect
of that property is then governed by survivorship and not
by succession. On the other hand, if the holder of an •
F
impartible estate acquires property _and incorporates it
with the impartible estate he makes it a part of the
impartible estate with the result that the acquisition
ceases to be partible and becomes impartible."

G Prior to the decision of the Privy Council in the case of
Rani Sartaj Kuari v. Deoraj Kuari (supra), it was always assumed
that a holder of an ancestral impartible estate cannot transfer or

(I) [1888] LR 15 I.A. 51.
(2) [1898] LR 26 I.A. 83.
H (3) (1918] LR 45 I.A.
(4) (1932] LR 59 I.A. 331.
BHAIYA RAMANUJ v. MAHESHANUJ (Misra, J) 435

mortgage the said estate beyond his 'own life-time so as to bind the A
coparceners, except, of course, for purposes beneficial to the family
and not to himself alone. In 1888, however, this view was shaken
by the decision of the Privy Council in Rani Sartaj Kuari's case
(supra). Jn that case, the holder of the estate had gifted 17 of the
villages of his estate to his junior wife and the validity of this gift
was questioned by his son. The son"s plea, however, failed because B
the Privy Conncil held that "1f, as their Lordships are ofopinion,
the eldest son, where the Mitakshara law prevails and there is the
custom of primogeniture, does not become a co-sharer with his father
in the estate, the inalienability of the estate depends upon custom,
which must be proved, or it may be in some cases, upon the nature
of the tenure". This decision was again affirmed by the Privy c
Council in the First Pittapur case (supra). As a result of these
decisions it must be taken to be settled that a holder of an imparti-
ble estate can alienate the estate by gift inter vivos, or even by will,
though the family is undivided; the only limitation on this power
would flow from a family custom to the contrary or from the condi-
tion of the tenure which has the same effect.
D

Again in Chinnathayal alias Veeralakshmi v. Kulasekara Pandiya
Naicker & Anr.(') it was held by this Court that to establish that an
impartible estate has ceased to be joint family property for purppses
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 E
chance of succeeding to the estate In each case it is incumbent on
the plaintiff to adduce satisfactory grounds for holding that the
joint ownership of the defendant's branch in the estate was deter-
mined 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
F
estate or a relinquishment of the right of succession and an intention
to impress upon the zamindari the character of separate property. In
Pushavathi Viziaram Gajapathi Raj Manne's case (supra) this Court
reiterated the same legal position.

For the foregoing discussion this appeal must fail.
G

This leads us to the other appeal tiled by the defendant. The
contention of the learned counsel for the defendant-appellant in

--(-If-(1952] SCRZ41.
H
436 SUPREME COURT REPORTS [ 1982] 1 S.C.R.

A
this case is that the possession of the appellant was not as a tres-
passer but he was a maintenance holder on the khorposh grant
(maintenance) given by the impartible estate holder. The High
Court, therefore, erred in law in passing a decree for possession and
mesne profits against the defendant-appellant. It was further con-
tended that the Nagaruntari estate was a partible estate.
B
As regards the first contention it is open to a co-sharer to
remain in possession of the joint property and the proper remedy
for the plaintiff in such case is to file a suit for partition where the
equities of the parties would be adjusted. The learned counsel for
c the plaintiff-respondent on the other hand urged that the defendant's
possession was only as a trespasser. In support of his contention
he placed reliance on Co/he tor of Bombay v. Municipal Corporation
of the City of Bombay & Ors.( 1) The majority took the view that :

"The position of the Corporation and its predecessor
in title was that of a person having no legal title but never-
D theless holding possession of the land under colour of an
invalid grant of the land in perpetuity and free from rent
for the purpose of a market. Such possession not being
referable to any legal title it was prima facie adverse to the
legal title of the Government as owner of the land from the
very moment the predecessor in title of the Corporation
E
took possession of the land under the invalid grant. This
possession had continued openly, as of right and uninter-
ruptedly for over 70 years and the Corporation had acqui-
red the limited title to it and its predecessor in title had
been prescribing for during all this period, that is to say,
the right to hold the land in perpetuity. free from rent but
F
only for tbe purpose of a market in terms of the Govern-
ment Resolution of 1865.'

In the instant case the defendant being a member of a joint
Hindu family was entitled to maintenance from the impartible estate
bolder. The impartible estate holder executed a khorposh deed in
G favour of the defendant. If the document in question was invalid
for want of registration or stamps the same can be looked into for
collateral purpose to find out the nature of possession of the defen-
dant-appellant. This being the position in the instant case, the case
cited above is not of much help to the plaintiff-respondent. In
H
(\) AIR 1951 SC 469.
BHAIYA RAMANUJ v. MAHESHANUJ (Misra, J.) 437

that case the sole basis of title itself was invalid. A perusal of the A
plaint also indicates that the plaintiff had given some grao t to the
defendant by way of maintenance and a formal deed of maintenance
was executed. The execution of the document is not denied by the
plaintiff. All that he says is that village Sigsigi was not included in
the deed.
B
We find considerable force in the contention raised on behalf
of the defendant-appellant that the High Court has erred in passing
the decree for possession and mesne profits against the defendant.
The proper remedy for the plaintiff in this case was to file a regular
suit for partition in respect of all the properties and not a suit for
possession of plots of one village and mesne profits. c
The second contention that disputed estate was a partible
estate has been raised only to be repelled. The overwhelming
evidence on the record leaves no room for doubt that the disputed
estate was an impartible estate 1111 the death of the original plain-
tiff in 1957. 0
In the result the first appeal No. 209 of 1970 filed by the
plaintiff is dismissed while the other appeal filed by the defendant,

--.
No. 2280 of 1970, is allowed and the decree passed by the High

-
Court is set aside and the decree of the Trial Court as affirmed by
the first appellate court, is restored,

In the circumstances of the case we direct the parties to bear
their own costs.

V.D.K. C. A. 209 / 70 dismissed
C.A. 2280/70 allowed. F