A.P.SEN - (1.) THIS appeal on certificate is directed against a judgment and decree of the Madhya Pradesh High Court dated 2/05/1969 substantially reversing the judgment and decree passed by the Third Additional District Judge, Indore dated June 18/19, 1962 and dismissing the plaintiffs' suit for partition and separate possession of their half share of the suit properties detailed in Schedule 'A' appended to the plaint except with respect to a house and the agricultural lands at Ujjain. During the course of the hearing the parties have come to a settlement and the terms of the compromise have been recorded. Nevertheless, the correctness of the judgment delivered by the High Court is open to serious doubt and as it involves a question of general importance, we proceed to record our views.
(2.) THE facts giving rise to the appeal are as follows. THE report of the Inam Commissioner discloses that in 1837 the late Maharaja Harihar Rao Holkar made a grant of an inam of a garden known as Rambag in Kasba Indore admeasuring 15.62 acres to Abaji Ballal, the priest of the Holkar family on his representation that he was in service of the Huzur Durbar for a long period but had no garden at Kasba Indore and was therefore finding it difficult in getting tulsi leaves and flowers for making offerings to the deities. THE grant of inam to him was on Putra Pautradi Vansh Parampara condition by way of parvarish. As appears from the report that Abaji Ballal had only one son named Laxman and he also had only one son named Raghunath Rao. After the death of Abaji Ballal he was succeeded by Laxman. It appears that Laxman represented in the year 1866 that he was entitled to hold as inam an area of 15.62 acres in Kasba Indore while the land in his possession was only 5.91 acres, the remaining area having been acquired by the Durbar and prayed for a grant of an area of 9.72 acres in exchange. An inquiry was thereupon held and the claim was found to be true. By Durbar Order No. 9 dated December 14, 1888, the inamdar was given 9.72 acres of land in Mauja Palashiya Hana. It also appears that the family built residential houses at Indore presumably out of the income of the inam and also acquired immovable properties at Ujjain consisting of a house and some agricultural lands. After the death of Laxman Rao, his son Raghunath Rao was recognized to be the inamdar. The common ancestor Raghunath Rao had three sons, Madhav Rao, Sadashiv Rao and Gopal Rao. Of these, Madhav Rao and Sadashiv Rao had predeceased their father Raghunath Rao Madhav Rao died without leaving an heir while Sadashiv Rao left a son Purushottam Rao. The third son Gopal Rao disappeared about an year before the death of his father Raghunath Rao and his whereabouts were not known till the news of his death in 1932 at Secunderabad was received, after the death of Raghunath Rao in 1928. On the death of Raghunath Rao, Purushottam Rao being the sole survivor of the eldest male line of the last holder became the inamdar and also the karta of the joint Hindu family. The suit out of which this appeal arises was instituted by the three appellants Anant, Govind and their mother Smt. Laxmi bai being the legal heirs and successors of Gopal Rao, as plaintiffs on 12/12/1955 for partition and separate. possession of their half share in the joint family property described in Schedule 'A' appended to the plaint against respondents 1 and 2 Purushottam Rao and his mother Smt. Rama Bai being defendants 1 and 2, impleading Krishna Rao, the eldest son of Gopal Rao as defendant 3 because he failed to join them as a plaintiff in the suit. The case of the plaintiffs was that defendant No. 1 Purushottam Rao in his capacity as the karta of the joint Hindu family was in possession and management of the joint family property including the inam lands at Kasba Indore and Mauja Palashiva Hana. The plaintiffs, claim was contested by defendants 1 and 2, Purushottam Rao and Smt. Rama Bai. They pleaded inter alia that the plaintiffs' predecessor-in-interest Gopal Rao had separated from the family by taking his share in the year 1917-18 and therefore the plaintiffs had no kind of right or title in the suit properties; that the inam lands, and the properties acquired from out of the inam being impartible, in nature, the succession to which was governed by the rule of lineal primogeniture, the properties exclusively belonged to defendant No. 1 Purushottam Rao and that the 'conferral of bhumiswami rights on respondent 1 under S. 158 (1) (b) of the Madhya Pradesh Land Revenue Code, 1959 made the suit lands his separate and exclusive property and it was not part of the joint estate of the undivided family. Incidentally, the Madhya Pradesh Land Revenue Code, 1959 was brought into force w. e. f. 1/10/1959 which had the effect of changing the nature of the tenure.
(3.) THE point in controversy in this appeal is now limited to the inam lands and the houses and other properties built from out of the income of the inam lands at Kasba Indore and Mauja Palashiya Hana. THE learned Additional District Judge held that the inam lands together with the properties acquired from the income of the inam were ancestral impartible estate since the same had devolved by survivorship by the rule of lineal primogeniture and therefore constituted joint family property and that the rule of impartibility and the special mode of succession by the rule of lineal primogeniture were nothing but incidents of the inam which stood extinguished by Section 158 (1) (b) of the Code by virtue of which the inam lands became bhumiswamy, the succession to which was governed by the personal law of the parties. THE learned Additional District Judge accordingly held that the inam lands at Kasba Indore and Mauja Palashiya Hana constituted joint family property of the parties and decreed the plaintiffs' claim for partition and separate possession to the extent of their half share in the properties described in Schedule 'A' to the plaint and to mesne profits thereof. On appeal, the High Court reversed the judgment of the learned Additional District Judge with regard to the inam lands and the houses and other property acquired at Indore out of the income of the inam holding that they constituted a special grant regulated by the Jagir Manual of the Holkar State. According to the High Court, the plaintiffs who were the junior members of the family had no kind of right or title to the inam lands except perhaps the right of maintenance and that too up to a certain degree and subject to its determination by the State. Accordingly the High Court held that defendant No. 1 Purushottam Rao, the inamdar for the time being, became the bhumiswami of the suit lands under Section 158 (1) (b) of the Code which constituted his separate property. THE High Court however maintained the decree of the learned Additional District Judge with regard to partition and separation of the plaintiff's share of immovable properties at Ujjain. The short and narrow question involved in this appeal is whether the inam lands which became bhumiswami lands under Section 158 (1) (b) of the Code were the self-acquired property of the inamdar and defendant No. 1 Purushottam Rao was entitled to remain in full and exclusive possession and enjoyment thereof, or the conferral of bhumiswami rights in respect of such inam lands on him must enure to the benefit of the members of the joint Hindu family and therefore the bhumiswami lands were liable to be partitioned like any other coparcenary property.;