BHIMSINGH KISHORE SINGH BHILALA Vs. GANGARAM RAMAJI RAJPUT

JUDGEMENT

(1.) THIS is an appeal arising out of execution proceedings. The decree that it is sought to execute was one passed by their Lordships of the Judicial Committee who had before them, on appeal, a claim made against one Rao Kishoresingh in a suit claiming inter alia specific performance. There were other alternative claims but they do not arise as under the main prayer it was decided that although specific performance should not be decreed compensation should be decreed. The compensation was in lieu of specific performance, and was granted instead of specific performance because their Lordships held that the circumstances were such that the plaintiffs could be adequately compensated in money. The circumstances were that Rao Kishoresingh was litigating as to the impartibility of the estate. In that litigation, the facts of which will be found in the opinion of the Judicial Committee reported in Kishore Singh v. Mt. Gahena Bai (1919) 6 AIR PC 100, Rao Kishore Singh was the plaintiff and was suing for a declaration that he was the sole heir of one Rao Himmat Singh. His claim raised and depended upon the question whether the Hindu joint family of which he, Rao Himmat Singh, and the defendants to that suit were, prior to Rao Himmat Singh's death, members, was governed by a custom of primogeniture. If primogeniture applied then Rao Kishore Singh took the estate subject to certain family rights; if it did not, the estate passed by survivorship in the usual way.

(2.) TO finance that litigation Rao Kishore Singh entered into the agreement specific performance of which was sought in the subsequent suit which also went to the Privy Council and is reported in Ramji Patel v. Kishore Singh (1929)16 AIR PC 190. The prayers are set out at pages 122 and 123. The first prayer was for specific performance, the second in the alternative for refund of the money advanced with interest, the third for costs and other relief as the Court thinks fit. The second prayer did not arise for, as above stated, the decree gave compensation in lieu of specific performance. The compensation was fixed at Rs. 20,000. We do not understand this to have been given under the second prayer (which also asked for compensation.) We understand it to have been given because although the suit for specific performance in substance succeeded, actual specific performance was not decreed because the equities were sufficiently met by compensation. The money decree thus obtained for Rs. 20,000 with interest thereon at 6 per cent, until realization and for costs had to be executed. The decree in the specific performance case was in favour of the plaintiff Ramji Patel and has now passed to the respondents to the appeal, Gangaram and others, The date of the decree is about 9th May 1929. The estate which it was declared in the earlier suit was subject to a custom of primogeniture is known as the Bhamgarh estate and has been in the same family for many hundreds of years.

(3.) WHEN execution was sought to be effected by a sale of part of the estate, Rao Bhimsingh took the point that the estate was inalienable and could not therefore be reached. Among the issues settled was also one: "Is the property in suit an asset of Kishore Singh in the hand of the objector (Rao Bhimsingh)?" That is answered in the affirmative by the trial Court. That finding was based on the view that this estate was not inalienable. That was the question debated before the lower Appellate Court. Before us that was the first point taken but later the matter was alternatively argued on the basis of Section 53, Civil P.C. The question relating to inalienability, were it one of first impression, would un-doubtly be one of difficulty. Mr. Sen with his usual ability marshalled the logical difficulties in the way of the conclusion arrived at by the Judicial Committee in Sartaj Kuari v. Deoraj Kuari (1888) 10 All 272. He pointed out that the fact that an estate was impartible did not result in the conclusion that it was not governed by Hindu law ideas, but that it had a special custom engrafted on it for a limited purpose, but that outside this purpose--and alienability was outside it--the Hindu law conception remained in full force. We do not consider any useful purpose would be served by going once again through all the cases. They are, save the most recent, all to be found in Ramesam J.'s judgment Annadana Jadaya v. Konammal AIR 1923 Mad 402. The argument addressed to us was crystallized into a sentence by one of us (Stone J. as he then was) in Perumal Sethurayar v. Subbalakshmi (1936)23 AIR Mad 721 at p. 23: It might, of course, have been thought this inroad (Sartaj Kuari v. Deoraj Kuari (1888) 10 All 272 was being referred to) upon the normal right to partition created by custom in the case of impartible estates was not merely in the interest of the holder of the zamin but was derived from the very nature of the case which imposed an equal obstacle in the way of the holder of the zamin compelling separation by a unilateral act.