Hindu Succession and possession law: custom of primogeniture fell away, and a co-sharer in maintenance possession was not a trespasser.

Section 4(1)(a) of the Hindu Succession Act, 1956 displaced the customary rule of lineal primogeniture, and Section 5(ii) did not preserve it because the Bengal Regulation only maintained the custom of single-heir descent rather than creating a statutory rule. The defendant's possession under an unregistered maintenance deed could still be examined for the limited collateral purpose of identifying the nature of possession, but not to found title. As the defendant was a joint family member placed in possession under a maintenance arrangement, that possession could not be treated as trespass. The decree for possession and mesne profits was therefore unsustainable, and the Trial Court decree as affirmed in appeal was restored.

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Issues: (i) whether the rule of lineal primogeniture governing an impartible estate survived the commencement of the Hindu Succession Act, 1956 and displaced the customary incidents of the estate; (ii) whether the defendant's possession under the maintenance deed could be treated as that of a trespasser so as to justify a decree for possession and mesne profits.

Issue (i): whether the rule of lineal primogeniture governing an impartible estate survived the commencement of the Hindu Succession Act, 1956 and displaced the customary incidents of the estate.

Analysis: By virtue of Section 4(1)(a) of the Hindu Succession Act, 1956, any Hindu custom or usage in force immediately before the commencement of the Act ceases to operate in respect of matters for which the Act makes provision. The exception in Section 5(ii) applies only where an estate descends to a single heir by the terms of a covenant, agreement, or enactment, and not where descent to a single heir rests merely on custom. The Court held that the Bengal Regulation relied upon did not itself create a statutory rule of descent to a single heir, but only preserved the custom of primogeniture. Accordingly, the custom of lineal primogeniture did not survive as an independent statutory rule under Section 5(ii).

Conclusion: The rule of lineal primogeniture did not survive as a protected statutory incident under the Hindu Succession Act, 1956.

Issue (ii): whether the defendant's possession under the maintenance deed could be treated as that of a trespasser so as to justify a decree for possession and mesne profits.

Analysis: The maintenance deed was unregistered, but under Section 49 of the Indian Registration Act it could still be looked into for the limited collateral purpose of determining the nature of possession. Section 12A of the Chota Nagpur Encumbered Estates Act, 1876 was not shown to be attracted in the absence of proof that the statutory conditions for its operation were satisfied. The defendant was a member of the joint family and had been placed in possession by the estate holder in a maintenance arrangement. In such circumstances, his possession could not be branded as that of a trespasser. The proper remedy, if any, was a partition action and not a suit for possession and mesne profits against a co-sharer in joint possession.

Conclusion: The defendant was not a trespasser, and the decree for possession and mesne profits could not be sustained.

Final Conclusion: The plaintiff's appeal failed, while the defendant's appeal succeeded, with the result that the decree passed by the High Court was set aside and the decree of the Trial Court as affirmed by the first appellate court was restored.

Ratio Decidendi: An impartible estate remains joint family property for the limited purpose of survivorship unless the right is displaced by statute or valid renunciation, and an unregistered maintenance deed may be used collaterally to determine the character of possession, but not to found title.

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