Thakore Shri Vinayasinhji (Dead) vs Kumar Shri Natwarsinhji & Ors on 18 November, 1987
Equivalent citations: 1988 AIR 247, 1988 SCR (1)1110
Bench: Dutt, M.
PETITIONER:THAKORE SHRI VINAYASINHJI (DEAD) BY LRS.
Vs.
RESPONDENT:KUMAR SHRI NATWARSINHJI & ORS.
DATE OF JUDGMENT18/11/1987
Bench:
DUTT, M.M. (J)
Bench:
DUTT, M.M. (J)
KANIA, M.H.
CITATION:
1988 AIR 247 1988 SCR (1)1110
1988 SCC Supl. 133 JT 1987 (4)455
1987 SCALE (2)1193
CITATOR INFO :
R 1991 SC1972 (25,26)
ACT:
Hindu Law-Whether the holder of an impartible estate to which the rule of primogeniture applies as an essential characteristicof such anestate, can alienate the properties comprised in the estate, by a deed of gift or a will.
HEADNOTE:
%
The father of the appellant Thakore Shri Vinayasinhji, the Ruler of the former Mohanpur State, gifted certain properties to his youngest son, the respondent No. 1, by a deed of gift dated May 14, 1951, and also bequeathed certain properties to the respondent No. 1 and his mother by his will dated May 22, 1951. The father died in 1955, whereupon the appellant became the Ruler. Heinstituted a suit, challenging the validity of the saiddeed of gift and the will on the ground that as the rule of primogeniture applied to theRaj Estate, he being the eldest son succeeded to the ‘Gadi’ and that his father, the former Ruler, had no power of alienation either by gift or by will and accordingly, the disposition made by him by the above-said deed of gift and the will in favour of his younger brother, the respondent No. 1 was illegal and invalid.
The CivilJudge decreed the suit in part, declaring that the deed of gift and the will were illegal, and directing the respondent No. 1 to hand over to the appellant the possessionof theproperties mentioned in the deed of gift. The Civil Judge passed a decree for mesne profits, but refused the prayer of the appellant for an injunction on the ground that he had failed toprove his possession of the properties mentioned in the plaint.
Being aggrieved by the judgment and decree of the Civil Judge, the respondents preferred an appeal to theHigh Court. The High Courtheld that the former Ruler had the power of alienation and, accordingly, the deed of gift and the will impugned were legal and valid. Thejudgment and decree of the Civil Judge were set aside. Thereupon, this appeal was filed before this Court by special leave against the decision of the High Court. During the pendency of the appeal, the appellantThakore HarnathsinhjiVinayasinhji died, leavingbehindthe present appellants, whowere already on record as his heirs and legal representatives. 1111
Dismissing the appeal, the Court,
^
HELD: It was not disputed that the Raj Estate of which the deceased appellant was the Ruler is impartible and that the rule of primogeniture-oneof the essential characteristics of an impartible estate-is also applicable. The question involved for the consideration of the Court was whether the holder of an impartible estate to which the rule of primogeniture applies as an essential characteristic of such an estate, couldalienate the properties comprised in the estate by a deed of gift or will. [1115D-E] The law has beenclearly and succinctly stated in the illuminating judgment of Sir Dinshah Mulla in Shiba Prasad Singh v. Rani Prayag Kumari Debi AIR 1932 P(; 216. There is no restraint on the power of alienation of the holder of the impartible estate, as any restraint on the power would be incompatible with the custom ofimpartibility. The impartible estate, though ancestral, is clothed with the incidence of self-acquired and separate property except as regards the right of survivorship which is not inconsistent with the custom of impartibility. The right of survivorship has been held to be a birthright and is not a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband’s estate. [1116G- H; 1117A]
In Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51, the right of alienation of the holder has been recognised and in Shiba Prasad’scase (Supra) such right of the holder is reiterated. Impartibility isessentially acreature of custom which supersedes the general law. It is true that the impartible estate retains thecharacter of joint family property only to the extent that there isa right of survivorship by birth to the junior members of the family, but, as the Privy Council has observed in Shiba Prasad’s case (supra) that in all other respects it is clothed with the incidents of self-acquired and separate property, it follows that the holder of the impartible estate has the unlimited right of alienationnot only by transfer inter vivos but also by will. Whenthe holder has the power to dispose of the estateduring his life-time, it would be quite illogical to hold that he would not have the power of disposition bya will. The power of alientation has been recognised without any reservation in as much as such power is notincompatible with the impartibility of the estate. The rights available to the member of the Hindu joint family under the Mitakshara law have been curtailed to a great extent, as most of the said rights would be inconsistent with the nature and character of the estate. [1117E-G; 1118D-E]
1112
The case of Sri Raja Rao v. Venkata Kumari, 26 IA 83 is an authority for theproposition that a holder of an impartible estate cannot onlydispose of the estate by transfers inter vivos but also by a will and that when such a disposition is madeby a will, itdefeats the right of survivorship. It may be that the holder of an impartible estate can defeat theright of survivorship by leaving a will and such right cannot be said to have been founded on any logical basis, but it has to be borne in mind that the whole concept of impartibility is acreature of custom including the right of alienation ofthe holder ofsuch estate. In matters ofcustom, it ishardlypossible to justify every incident on some logical basis. [1120B-C] There canbe no doubt that an impartible estate is not a separate or self-acquired property of the holder thereof, but ithas been observed by Sri Dinshal Mulla in Shiba Prasad’s case (supra) that it is clothed with the incidents of self-acquired and separate property. One ofsuch incidents is that theowner is entitled to dispose of the same in whatever manner he likes either by a transfer during his life-time or by a will. [1120D-E]
The rightof a coparcener to take by survivorship can be defeated under certain circumstances as enumerated in Mulla’s Hindu Law. When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken if the right of survivorship of junior members of animpartible estate to succeed to it is defeatedby the holder thereof by disposition by a will. [1121E-F]
In view of the decisions of the Privy Council and this Court, it must be held that the holder of an impartible estate has the power of alienation not onlyby transfer inter vivos, but also by a will even though the disposition by will may altogether defeat the right of survivorship of the junior members of the family . [1122B] The appellants contended alternatively that by virtue of a family custom, the holder of the impartible estate, as in this case, had no Ci power of alienation eitherby a transfer intervivos or by awill, and in support of this contention, drew the attention ofthe Court tosome correspondence between the original appellant since deceased and the political agent of the Mohanpur State. The appellants placed much reliance upon the above documentary evidence in proof of their contention that there was a family custom prohibiting alienation by the Ruler of the State. [1122C-D]
1113
The correspondence related only to thequestion of granting jiwai
(maintenance) to the youngerson of the former Ruler. It appeared from the correspondence that the entire attemptof theappellant was against the quantum of maintenance proposed to be granted by the Ruler to his younger son. It was not the appellant’s contention that in view of a family custom, the Ruler had no right of alienation, but his case was that in view of the annual revenue of the State the quantum of the jiwai would be out of proportion.It was only on this ground that he protested against the proposed jiwai. The correspondence referred to did not prove any custom of inalienability of the impartible estate. [1123B-D]
The appellants contended that as there was no instance of alienation till before the impugned deed of gift and will, it should be presumed that there was a family custom of inalienability of the estate. More or less a similar contention made before the Privy Council in Protap Chander Deo v.Jagdish Chandra Deo, 54 IA 289 was overruled by the Privy Council.There must be some positive evidence of such a custom. The correspondence relied upon as the evidence of the alleged family custom of inalienability was farfrom being such evidence, the only question that formed the subject-matter of all this correspondence related to the propriety of the question ofjiwai.The appellants had failedto prove that therewas any family custom of inalienability of the estate. [1123D-G]
The judgment and decree of the High Courtwere affirmed. [1123G]
Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51; Shiba Prasad Singh v. Rani Prayag Kumari Debi, AIR 1932 PC 216; Collector of Gorakhpur v. Ram Sunder Mal, AIR 1934 PC 157; Chinnathayi v.Kulasekara Pandiya Naicker, [19$2] SCR 1952 241; Shri Kaja Rao v. Venkata Kumari, 26 IA X3; Seth Lakshmi Chand v. Mt. Anandi and others, AIR 1926 PC 54; Lakshman Dada Naik v. Ramachandra Dada Naik, 7 IA 181; M.N.Arya Murthi v. M.N. Subbaraya Setty. AIR 1972 SC 1279; Baijnath Prasad Singh v. Tej Bali Singh, AIR 1921 PC 62; Protap Chandra Dao v. Jagdish Chandra Deo, 54 IA 289; Mirza Raja Shri Pashavathi Viziaram Gajapathi Raj Manne Sultan Bahadur v. Shri Pushavathi Visweswar Gajapathi Raj, [1964] 2 SCR 403 and Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo, [1982] 1 SCR 417, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2477 of 1972.
1114
From the Judgment and Decree dated 2.12.1969 of the Gujarat High Court in F.A. No. 89 of 1961. S.K. Dholakia, R.C. Bhatia and P.C. Kapur for the Appellants.
B.K. Mehta, H.S.Parihar and N.D. Bhatti for the Respondents.
The Judgment of the Court was delivered by DUTT, J. This appeal by special leave is at the instance of the plaintiff-appellant, since deceased, and is directed against the judgment and decree of the Gujarat High Court reversing those of the Civil Judge, Senior Division, Himatnagar, whereby the learned Civil Judge decreed the suit instituted by the appellant.
The lateThakore Sartansinhji,the father of the appellant, wasthe Ruler ofthe former Mohanpur State situated in the district of Sabarkantha, Gujarat. After independence, the said Mohanpur State mergedin thethen State of Bombay.(now the State of Maharashtra). The former Ruler, the father of the appellant, by a deed of gift dated May 14, 1951 gifted certain properties to his youngest son, the respondentNo. 1 herein. By his will dated May 22, 1951 the former Ruler alsobequeathed certain properties to the respondent No. 1 and his mother. The father of the appellant died on December 9, 1955 andon hisdeath the appellant became the Ruler. On May 10,1956, the suit out of which this appeal arises,was instituted by the appellant challenging the validity of the saiddeed of gift and the will. In the suit, the case of the appellant was that as the rule of primogeniture appliedto theRaj Estate, he being the eldest son succeeded to the ‘Gadi’. It was contended that the former Ruler, that is, the father of the appellant, had nopower of alienation either by gift or by will and, accordingly, the disposition made by him by the said deed of gift and the will in favour of his younger brother, the respondent No. 1, was illegal and invalid. The respondents including the younger brother of the appellant, contested t-he suit, inter alia, denying that the former Ruler had no power of alienation as contended by the appellant. It was averred that the deed of gift and the will were perfectlylegal and valid. The learnedCivil Judge decreed the suit in part declaring that the deed of gift and the will were illegaland directed the respondent No. 1 to hand-over to the appellant the possession of the properties which were all agricultural lands, as mentioned in the deed of gift. The learned Civil
1115
Judge passed a decreefor mesne profit, butrefused the prayer of the appellant for an injunction on the ground that the appellant had failed to prove his possession of the properties mentioned in the plaint.
Being aggrieved by the judgmentand decree of the learned Civil Judge, the respondents preferred an appeal to the High Court. The High Court, after considering the facts and circumstances of the case and the evidence adduced by the parties, held that the former Ruler hadthe power of alienation and, accordingly, the deed of gift and the will impugned in the suit,were legal and valid. The appeal was allowed and the judgment and decree of the learned Civil Judge were set aside. Hence this appeal by special leave. During the pendency of the appeal in this Court, the appellant Thakore Harnathsinhji Vinayasinhji died onJune 27, 1985 leaving behind him the present appellants, who were already on record, as his heirs and legal representatives. It is not disputed that the Raj Estate, of which the deceased appellant was the Ruler, is impartible and that the rule of primogeniture, which is one of the essential characteristics of an impartible estate, is also applicable. The question that isinvolved in this appeal for our consideration is whether the holder of an impartible estate, to which the rule of primogeniture applies as an essential characteristicof such anestate, can alienate the properties comprised in the estate by a deed of gift or will. The legal position that prevailed up to 1888 was that a holder of an impartible estate could nottransfer or mortgage such estate beyond his own life-time so as to bind the coparceners, except for purposes beneficial to the family and not to himself alone. In 1888, for the first time, in Rani Sartaj Kuari v. Deoraj Kuari,15 IA 51 the Privy Council recognised the power of alientation by the holder of an impartible estate and held that such power of alienation could be excluded by custom or by the nature of the tenure. In that case, the Privy Council also took the view that in an impartible Raj Estate, the son is not a co- sharer with his father. This view, however, was not accepted by thelater Privy Council decisionsand itis nowwell settled that co-ownership of the joint family exists in impartible estate.
At this stage, it will be profitable for us to refer to the illuminating judgment of Sir Dinshah Mulla in the case of Shiba Prasad Singh v. Rani Prayag Kurnari Debi, AIR 1932 PC 2 16. Sir Dinshah Mulla while delivering the judgment of the Judicial Committee of the Privy Councilobserved as follows:-
1116
“Impartibility is essentially acreature of custom. In the case of ordinary joint family property, the members of the family have; (1) the right of partition; (2) the rightto restrain alienations by the head of the family except for necessity; t3) 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 impartibility as laid down in Satraj Kuari’s case 15 IA 5 1 and Rama Krishna v. Venkata Kumara, 26
IA 83 (PC), andso also the third as held in Gangadhara v. Rajah of Pittapur, 45 IA
148.To this extent the generallaw 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’s case, 48 IA 195. 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 co-parcener acquiresby birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. Nor is this right a merespes successlonis similarto that of a reversioner suceeding onthe death of a Hindu widow to her husband’s estate. It is a right which is capable of being renounced and surrendered. Such being their Lordships’ view, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to theestate. It is not sufficient to show a separation merely in food and worship.”
The law has beenclearly and succinctly stated in the passage extracted above. There is, therefore, no restraint on thepower of alienation of the holder of the impartible estate, as any restraint on the power would be incompatible with the custom of impartibility. The impartible estate, though ancestral, is clothed with the incidents of self- acquired and separate property, except as regards the right of survivorship which is not inconsistent with the custom of impartibility.
1117
The right of survivorship has been held to be a birthright and isnot a mere spes successionis similarto that of a reversioner succeedingon the death of a Hindu widow to her husband’s estate.
Mr. Dholakia, learned Counsel appearing on behalf of the appellants, does not dispute that the holder of an impartible estate has the power of alienation by transfer inter vivos. It is, however, submitted by him that he has no such power to make a disposition by a willwhich would affect the right of survivorship by birth of the junior members of the family, which is the only right that remains and, as recognised bythe Privy Council in Shiba Prasad’s case (supra), is not opposed to the custom of impartibility. It is submitted by the learned Counsel that disposition by will is incompatible with the rightof survivorship by birth.The right ofthe junior branch to succeed by survivorship to the Raj on the extinction of their senior branch, has also been definitely and emphatically reaffirmed by the Privy Council in Collector of Gorakhpur v. Ram Sundar Mal, AIR 1934 PC 157. Counsel submits that the right of alienation by will and the right of survivorship by birth cannot co-exist and, as it is now a settled law that in an impartible Raj Estate, the right of survivorship of birth of the junior members tosucceed to the estate still remains, it will be beyond the power of the holder of the estate to defeat such right by a will.
Attractive thoughthe contentionis, we regret we are unable to accept the same. It has been already noticed that in Sartaj Kuari’s case (supra) the right of alienation of the holder has been recognised and in Shiba Prasad’s case (supra) suchrightof the holder is reiterated. Impartibility is essentially a creature of custom which supersedes thegeneral law. It is true that the impartible estate retainsthe character of joint family property only to the extent that there is a right of survivorship by birth to thejunior membersof thefamilybut, as the Privy Council has observed in Shiba Prasad’s case (supra) that in all other respects it is clothed with the incidents of self- acquired and separate property, so it follows that the holder of the impartible estate has the unlimited right of alienation notonly by transfer inter vivos, but also by will. When the holder has the power to dispose of the estate during his life-time, it would be quite illogical to hold that he would not have the power of disposition by a will. It is, however, submitted that no assumption should be made of the power of disposition by will from the existence of the power of the holder to alienate during his life-time. In support of this contention, the learned Counsel for the appellants has placed reliance upon a
1118
decision of this Court in Chinnathayi v. Kulasekara Pandiya Naicker, [19521 SCR 241 where it has beenobserved by Mahajan, J. in delivering the judgment of the Court, that in the case of an impartible estate the power to divide it amongst the members does not exist, though the power in the holder to alienate itis there, and from the existence of one power the other cannot be deduced as it is destructive of thevery nature and character of the estate and makes it partible property capable of partition. We do not think that the said observation bears any analogy to the contention made on behalf of the appellants. In that case, this Court was concerned with the question whether the holder of an impartible estate could divide theestateamongst the members. In laying down that there is no such power of division, this Court has pointed out that such a power would be contrary to the nature and character of the estate, that is to say, the impartibility of the estate. In the instant case, the question iswhether the holder has power of disposition bywill. The power of alienation, as already noticed, hasbeen recognised without any reservation inasmuch as such power isnot incompatible with the impartibility of the estate. The rights which are available to the members of the Hindu joint family under the Mitakshara lawhave been curtailed to a great extent, as most of the said rights would be inconsistent with the nature and character of theestate. Chinnathayi’scase (supra) lends no support to the contention of the appellants.
We may now consider a later decision of the Privy Council in Sri Raja Rao v. Venkata Kumari, 26 IA 83. In that case, the Privy Council considered the question of extension of the decision in Sartaj Kuari’s case (supra) to a will and it was held “If the Rajah had power to alienate, he might do it by will and the title by the will would have priority to the title by succession.” As the case before the Privy Council related to animpartible Raj Estate, succession to the estate would be by survivorship.The Privy Council, however, took the view thattitle by will wouldhave priority to the titleby succession.In other words, it follows that the holder of the Raj Estate can defeat the right of survivorship by disposing of the estate by a will. The learned Counsel for the appellants, however, submits that in laying down that an impartible Raj Estate is alienable by a will, the Privy Council proceeded on the basis that there was no right of survivorship by birth. We are afraid, we are unable to accept this contention. It is true that thePrivy Councilin that decision has not referred to the right of survivorship of the junior members of thefamily, but it should not be assumed that the Privy Council was not awareof thelegal positionthat in an impartible Raj Estate the junior members would succeed to it by
1119
survivorship. Raja Rao’s case(supra) is, therefore, an authority for the proposition that a holder of an impartible estate cannot only dispose of the estate by transfers inter vivos, but also by a will and that when such a disposition is made by a will, it defeats the right of survivorship. It is submitted by the learned Counsel for the appellants that in extending the decision in Sartaj Kuari’s case (supra), the Privy Council Raja Rao’s case (supra) did not give any reason for extending the power of alienation of the holder of an impartible estate to alienatio
n by a will, thereby defeating the right of survivorship by birth, which is the only right that is available to the junior members of the family. It may be that no reason has been given by the Privy Council but, at the same time, there is also no reason why when the holder is entitled to dispose of the estate during his life-time, he is not so entitled to dispose of the same by a will.
Our attention has been drawn by the learned Counsel for the appellantsto a decision of the Privy Council in Seth Lakhmi Chand v. Mt. Anandi and others, AIR 1926 PC 54. In that case, the question that arose was whether a member of a joint Hindu family could make a disposition by a will or not. The Privy Council relied upon the following observation made in its earlier decisionin Lakshman Dada Naik v. Ramchandra Dada Naik, 7IA 181:-
“Its, the High Court’s,reasons for making distinction between a gift and a devise are that the co-parcener’s power of alienation is founded on his right to a partition; that that right dies with him; and that, the title of his co-sharers by survivorship vestingin them at the moment of his death, thereremains nothing upon which the Will can operate.”
It is submitted on behalf ofthe appellants that the same principle against alienability by will by a coparcener should also be applied to an impartible estate, otherwise it will defeat the right of survivorship by birth which is the only right that is conceded to in favour of the junior members of the joint Hindu family. The decision in Lakhmi Chand’s case (supra) or in Lakshman Dada’s case (supra) does not relate to an impartible estate, but to a coparcenary property and, accordingly, the principle of law that is applicable to a coparcenary property or to the coparceners is inapplicable to animpartible estate or to the holder thereof except, as has been noticed earlier, that an impartible estate isconsidered tobe a joint family property to the extent of the junior members succeeding to the estate by right of survivorship. Similarly 1120
the decision of this Court in M.N.Aryamurthi v.M.L. Subbaraya Setty, AIR 1972 SC 1279 relating to coparcenary property has no application to the instant case. It is urged on behalf of the appellants that to hold that the holder of an impartible estate hasthe power of dispossession by a will defeating the right of survivorship, would be quite illogical. It may be that the holder of an impartible estate can defeat the right of survivorship by leaving a will and such right cannot be said to have been founded on any logical basis. But, it has to be borne in mind that the whole concept of impartibility is a creature of custom including the right of alienation of the holder of such estate. In matters of custom, it is hardly possible to justify every incident on some logical basis. Much reliance has been placed by the learned Counsel for the appellants onthe decision of the Privy Council in Baijnath Prasad Singh v. Tej Bali Singh, AIR 192 1 PC 62 where it has been ruled that the fact that a Raj Estate is impartible does not make it a separate or self-acquired property. It is submitted that if the impartible estate is not a separate or self-acquired property, as held by the Privy Council, how then a holder of such an estate will have the power of disposition by a will. There can be no doubt that an impartible estate is not a separate or self-acquired property of the holder thereof, but it has been observed by Sir Dinshah Mulla in Shiba Prasad’s case (supra) that it is clothed with the incidents of self-acquired and separate property. One of such incidents isthat the owner is entitled to dispose of the same in whatever manner he likes- either by a transfer during his life-time or by a will. The contention of the appellants proceeds on the assumption that the right of survivorship is an immutable right and cannot be defeated by the disposition by a will.
Mr. Mehta, learned Counsel appearing on behalf of the respondents, has invited our attention to a statement of law in Mulla’s Hindu Law, Fifteenth Edition, Paragraph 229(2) to show that a right of survivorship of a coparcener can be defeated in certain cases. Paragraph 229(2) is as follows:- “Para 229(2). The right of a coparcener to take by survivorship is defeated in the following cases:- (i) Where the deceased coparcener has sold or mortgaged his interest, in States
where suchsale or mortgage is allowed
by law;
1121
(ii) Where the interest of the deceased coparcenerhas been attached in his
lifetime in execution of a decree
against him. A mere decree obtained by a
creditor, not followedup by an
attachmentin the lifetime of the
debtor, will not defeat the right of
survivorship, unless the judgment debtor
stood inthe relationof father,
paternalgrandfatheror great-
grandfather to the surviving
coparceners. Thisrule must beread
subject tothe provisions of sections 6
and 30 ofthe Hindu SuccessionAct,
1956, in cases where those sections are
applicable.
(iii)Where the interest of the deceased coparcener has vested in the official
Assignee or Receiver on his insolvency.
Onthe annulment of insolvency the
interest which vested in the Official
Receiver revests under sec. 37 of the
Provincial Insolvency Act in the
insolvent and if on that date he is not
alive, it goes tohis heirs under the
law.
Thus, the right of a coparcener to take by survivorship can bedefeated undercertain circumstances, as enumerated in Mulla’s Hindu Law in the passage extracted above. In paragraph 587 of Mulla’s, Hindu Law,it is stated that an impartible estate is not held in coparcenary, though it may be joint family property. Indeed, this proposition has not been disputed by either party in this appeal. When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken, if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will.
The same principle as laid downin Raja Rao’scase (supra) has been reiterated by the Privy Council in a later decision in Protap Chandra Deo v. Jagadish Chandra Deo, 54 IA 289. In this case it has been ruled by the Privy Council that the holder of an impartible Zamindari can alienate it by will, although thefamily is undivided, unless a family custom precluding him from doing so, is proved. In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur v. Shri Pushavathi Visweswar Gajapathi Raj, [1964] 2 SCR 403 it has been held by this Court that it must be taken to be
1122
settled that a holderof an impartible estate can alienate the estate by gift inter vivos, or even by a will, though the family is undivided; the only limitation on this power would flow from a family custom to the contrary or from the condition of the tenure which has the same effect. The same principle of law has been reiterated by this Court in Bhaiya Ramanuj PratapDeo v.Lalu Maheshanuj Pratap Deo, [1982] 1 SCR 417. In view of the above Privy Council decisions and of the decisions of this Court, it must be held that the holder of an impartible estate has the power of alienation not only by transfer inter vivos, but also by a will, even though the disposition bywill may altogether defeat the right of survivorship of the junior members of the family. The only question that remains to be considered by us relates to the alternative plea of the appellants that by virtue of a family custom the holder of the impartible estate, with which we are concerned, had no power of alienation either by a transfer inter vivos or by a will. In support of this contention, our attention has been drawn on
