MAHENDRASINGHJI RANMALSINGHJI Vs. ISHWARSINGHJI RANMALSINGHJI

JUDGEMENT

(1.) BEFORE we proceed to the facts of the case it will be necessary to clear the ground by referring to the position in law. There was the Sanathan or the Thakrat of Miyagam of which the Thakor of Miyagam for the time being was the Sansthanik or Gadinashin, The sansthan properties were impartible and descended from Thakor to Thakor by the rule of primogeniture. This position was not contested before us. The main point of contest, however, was as to whether the suit lands were sansthin properties, because if they were not such, the Thakor of Miyagam for the time being would own the same as the absolute owner thereof and they would then descend to his sons and heirs in accordance with the ordinary rule of succession known to the Hindu law, thus impressing the parties which thus descended from him to his sons and heirs with the characteristic of being ancestral properties in which alt the sons and heirs would have a share, the properties thus descending to them being ancestral properties quae their own sons and grandsons. It was, therefore, contended that the, suit lands belonged in any event to Ranmalsinghji, and on Ranmalsinghji's death they descended to Keshrisinghji and his three brothers, were ancestral in their hands and were therefore liable to partition. As regard the toda giras allowance also it wag contended that the same was the position on the death of Ranmalsinghji, and that even though Keshrisinghji and in his turn Puabpasinghji were the recipients of that allowance from the Government, the same really belonged to all the brothers and Pushpasinghji was bound to account to his uncles Mahendrasinghji, Isbwarsinghji and Mansinghji for the same. The toda giras allowance was thus similarly treated as ancestral property in the hands of Keshrisingbji and liable to a partition just as much as the jat inam watan lands situate in Wagra and Broach talukas. The position in law in regard to the sansthan and the sansthan properties could not be and was not contested by the appellant. The sansthan and the sansthan properties were impartible and descended by the rule of primogeniture. It was, however, contend-ed that even though that was the correct position in law in regard to the sansthan and the sansthan properties, the position in regard to the properties which would be subsequently acquired by the Thakor for the time being or the Sansthanik was quite different, and relying on a decision of the Privy Council in Rajindra Bahadur Singh v. Rani Raghubans Kunwar, 45 Ind. App. 134, it was contended that whatever property was acquired by the Thakor for the time being or the Sansthanik out of the income of the sansthan or the sansthan properties could only be his self-acquired properties and subject to the ordinary rule of succession known to Hindu law. Reliance was placed on the passage occurring at p. 143 of the judgment where the remarks of the Judicial Commissioner Mr. Chamier were quoted by their Lordships of the Privy Council with approval : "i take it that it is settled law that a subject cannot make his property descendible in a manner not recognized by the ordinary law, and that be cannot subject it to a rule of descent such as is contained in the primogeniture sanad granted to Girwar Singh. If this is so, it appears to me to follow that Balbhaddar Singh could not by express declaration, still less by mere volition, whether actual or presumed, subject property acquired by him to the rule of succession entered in the primogeniture sanad granted to Girwar Singh. " their Lordships of the Privy Council had agreed with that statement of law and had proceeded to consider what were the lands of which Balbhaddar Singh died possessed which were acquired by him and did not form part of the taluqa Mahewa as it was constituted at the date of the sanad of 1861 and were not lands acquired by him from the Government in exchange for lands which were included in that sanad. Our attention was drawn to the decision of their Lordships of the Privy Council in Jagadamba Kumari v. Narain Singh, 50 Ind. App. 1, where it was held that the income of the impartible estate, when received was the absolute property of the owner of the impartible estate, that it differed in no way from property that he might have gained by his own effort, or that had come to him in circumstances entirely disassociated from the ownership of the raj, and that it was a strong assumption to make that the income of the property of that nature was so affected by the source from which it came that it still retain-ed its original character. In that judgment their Lordships of the Privy Council had further pointed oat that the confusion was due to the consideration of the position with regard to the ordinary joint family estate :

(2.) THE position, therefore, thus correctly laid down in the passages from Mulla's Principles of Hindu Law and Mayne'a Hindu Law and Usage quoted above and the decision of their Lordships of the Privy Council in Shiba Prasad Singh v. Prayag Kumari Debi, 59 Ind, App. 331 is that though the income of an impartible estate belongs exclusively to the bolder of the impartible estate, and the properties acquired by the Thakor for the time being or the sansthanik would in the absence of anything more be his self acquired property. It is open to him to incorporate his self acquired immovable properties with the sansthan proper-ties and that thereupon the properties would accrue to the estate and be impressed with all its incidents including the descent by rule of primogeniture. The question, therefore, which would arise for our consideration in this case would be whether the suit lands were sansthan properties initially or having been acquired by the Thakor for the time being or the sansthanik were by a declaration of his intention incorporated with the sansthan properties.

(3.) IN regard to the suit lands Mr. S. M. Shah also drew our attention to the fact that after the enactment of the Exemptions from Land revenue (No. 2) Act, 1863 (Bombay Act VII of 1863) which was the Act for summary settlement of claims to exemption from the payment of Government land revenue, and for regulating the terms upon which such exemption shall be recognised in future, in those parts of the Bombay Presidency which were not subject to the operation of Act XI of 1852 of the Council of India, sanads were granted by the Government to Despainghji Jaswantsinghji, the then Thakor of Miyagara, under the provisions of the Act. Section 6 of the Act provided that: