1888 (1) TMI 1 - Other - Indian Laws

Elder son not co-sharer with father under Mitakshara law; custom of primogeniture not proven

The Privy Council held that the eldest son did not become a co-sharer with his father in the estate under Mitakshara law and the custom of primogeniture. ... - Issues Involved:1. Validity of the gift of seventeen villages made by the appellant to his younger wife.2. Custom and provisions of Hindu law regarding succession and alienation of the estate.3. Competency of the plaintiff to sue in the presence of other rightful heirs.4. Applicability of the Mitakshara law and custom in determining the rights and powers of the Raja over the estate.Issue-wise Detailed Analysis:1. Validity of the Gift:The primary question in this appeal was whether the gift of seventeen villages made by the appellant to his younger wife was valid. The plaintiff argued that according to the custom of the country and Hindu law, the eldest son of the Raja succeeds to the estate, and the Raja has no right to alienate the estate except for maintaining his respectability and dignity. The defendants contended that the Raja was the proprietor of the estate and authorized to make any transfer.2. Custom and Provisions of Hindu Law:The estate was admitted to be impartible, and the family was governed by the law of the Mitakshara. The High Court held that, in the absence of any custom to the contrary, the estate must be regarded as joint family property in which the eldest son had an immediate present interest and a right of succession. The High Court was not prepared to admit an absolute disposing power in one member of a joint family over an estate with incidents of joint family property unless overridden by well-recognized family custom.3. Competency of the Plaintiff to Sue:The Subordinate Judge framed an issue regarding the plaintiff's competency to sue in the presence of other rightful heirs. The Subordinate Judge decided in favor of the plaintiff, declaring the deed of gift invalid. The High Court upheld this decision, emphasizing the joint family property nature of the estate under Mitakshara law.4. Applicability of Mitakshara Law and Custom:The High Court referenced several judgments to support their view that the estate, though impartible, was part of the common family property. However, the Privy Council noted that the Mitakshara law's doctrine of heritage, which includes the right of sons to control the father, does not necessarily apply to impartible estates governed by custom. The restraint on alienation under Mitakshara law is inconsistent with the custom of impartibility and succession by primogeniture. The Privy Council emphasized that the property in the paternal or ancestral estate acquired by birth under Mitakshara law is connected with the right to partition, which does not exist in impartible estates.Conclusion:The Privy Council concluded that the eldest son, under Mitakshara law and the custom of primogeniture, does not become a co-sharer with his father in the estate. The inalienability of the estate depends on custom, which must be proved. The Subordinate Judge and the High Court found that the custom of alienability was not proved. However, the Privy Council determined that the absence of evidence of alienation was insufficient to prove a custom of inalienability. Therefore, the plaintiff failed to show that the gift should be declared invalid. The Privy Council advised reversing the decrees of the lower courts and dismissing the suit with costs.