1981 (8) TMI 249 - SC - Indian Laws

Court rules Khorposh deed inadmissible for inheritance, affirms primogeniture until 1957. Maintenance granted, no trespass.

Bhaiya Ramanuj Pratap Deo Versus Lalu Maheshanuj Pratap Deo and Ors.

The Court dismissed the plaintiff's first appeal, holding that the Khorposh deed was admissible for collateral purposes only. It affirmed the estate as ... - Issues Involved:1. Validity of the Khorposh deed.2. Nature of the Nagaruntari estate (impartible or partible).3. Applicability of the Hindu Succession Act, 1956.4. Rights of the defendant as a co-sharer.5. Proper remedy for the plaintiff.Issue-wise Detailed Analysis:1. Validity of the Khorposh Deed:The plaintiff argued that the Khorposh deed executed by Bhaiya Rudra Pratap Deo in favor of the defendant was void ab initio due to the lack of the Commissioner's sanction as required under Section 12A of the Chota Nagpur Encumbered Estates Act, 1876, and because the deed was neither stamped nor registered. The Court held that Section 12A would be attracted only when possession and enjoyment of the property is restored under specific circumstances, which the plaintiff failed to prove. Additionally, the Court noted that the Khorposh deed required registration under Section 17 of the Indian Registration Act, and its absence rendered it inadmissible for affecting immovable property but allowed its use for collateral purposes to ascertain the nature of possession.2. Nature of the Nagaruntari Estate (Impartible or Partible):The defendant contended that the Nagaruntari estate was a partible estate and not governed by the rule of lineal primogeniture. The Court, however, found overwhelming evidence supporting that the estate was impartible and governed by the rule of lineal primogeniture until the death of Bhaiya Rudra Pratap Deo in 1957. The Court referred to various precedents and legal principles affirming that an impartible estate, though ancestral and joint family property, is clothed with the incidents of self-acquired and separate property, with the right of survivorship being the only vesting incident of joint family property.3. Applicability of the Hindu Succession Act, 1956:The plaintiff's counsel argued that the rule of lineal primogeniture survived even after the enforcement of the Hindu Succession Act, 1956. The Court examined Sections 4 and 6 of the Act and concluded that any custom or usage as part of Hindu law ceased to have effect with respect to matters provided for in the Act. The Court held that the rule of lineal primogeniture, being a customary rule, ceased to have effect after the Act's enforcement. The Court also rejected the argument that the rule was a statutory one protected by Section 5(ii) of the Act, clarifying that the Bengal Regulation 10 of 1800 did not declare any estate to descend to a single heir by its own force but merely recognized the custom.4. Rights of the Defendant as a Co-sharer:The Court found that the defendant, being a member of a joint Hindu family, was entitled to maintenance from the impartible estate holder. The Khorposh deed, though invalid for want of registration, could be used to ascertain the nature of the defendant's possession, which was as a maintenance holder and not as a trespasser. The Court emphasized that the proper remedy for the plaintiff was to file a suit for partition rather than a suit for possession and mesne profits.5. Proper Remedy for the Plaintiff:The Court held that the plaintiff's suit for possession and mesne profits was not the appropriate remedy. Instead, the plaintiff should have filed a regular suit for partition in respect of all the properties. The Court noted that the defendant's possession was as a co-sharer, and the equities of the parties would be better adjusted in a partition suit.Judgment:The first appeal filed by the plaintiff (No. 209 of 1970) was dismissed. The second appeal filed by the defendant (No. 2280 of 1970) was allowed, setting aside the High Court's decree and restoring the Trial Court's decree as affirmed by the first appellate court. The parties were directed to bear their own costs.