DATTATRAYA @ PRAKASH AND ORS. versus KRISHNA RAO @ LALA SAHEB BAXI THROUGH L.RS. ETC. ETC.

Citation: [1991] 3 S.C.R. 644 · Decided: 20-08-1991 · Supreme Court of India · Bench: N.M. KASLIWAL · Disposal: Case Partly allowed

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Judgment (excerpt)

A 
B 
c 
DATIATRAYA@ PRAKASH AND ORS. 
v. 
KRISHNA RAO @ LALA SAHEB BAXI THROUGH L.RS. 
ETC. ETC. 
AIJGCST 20, 1991 
[N.M. KASLIWAL AND K. RAMASWAMY JJ.] 
Hindu 
Law--Chandurpur Jagir-Grant-ln perpetuity and 
enjoyment from generation to generation-Succession to impartible 
estate-Rule of governance--Consideration of-Ini:ome of impartib/e 
estare-Nature of. 
One Yesaji-2, ancestor of the parties rendered meritorious mili-
tary service to Ranaji Scindia and in recognition thereof, the Raja of 
Gwalior granted permanent jagir of Chandurpura village together with 
the buildings situated in 100 Bighas of land and the residential Bada 
D with right of enjoyment and succession from generation to generation. 
By virtue thereof, the ownership, possession and enjoyment was con-
tinued successively for seven generations upto Dwarkanath by rule of 
primogeniture. Dwarkanath was the nephew (brother's son) of the 
respondent and father of appellant Nos. 1 and 2. Dwarkanath being 
minor at the time of his succession to the estate, the court of wards took 
E over the management and the respondent was appointed as Superinten-
dent and on his death, since appellants 1 and 2 were minors Aruna Rai, 
their mother, initially managed the estate with the assistance of the 
respondent and subsequently the respondent came into full control and 
management. The respondent filed a suit for partition in the year 1962 
of the plaint schedule 1 to 3 properties in equal moiety and allotment of 
F 
one such share to him. He pleaded that the properties are coparcenary 
joint family properties and he is entitled to a half share therein: The 
respondent received maintenance from the jagir income at the rate of 
Rs.125 per month. The ap11ellants-defendants disputed the nature of 
the properties as joint family, status of the respondent and the appel-
lants as coparceners. They referred to various acc~etians made to the 
G jagir estate by their father and mother and pleaded that the jagir being 
an impartible estate is the separate and self-acquired properties of 
Dattatraya-1 Dwarkanath by rule of primogeniture and the concept of 
coparcenary and joint family status are inapplicable to it, and that the 
respondent has thus no share therein, but has only a right of mainte-
nance as per the law and the custom of Gwalior State. It was also added 
H 
that the respondent and his wife were given jewellery at the time of their mar-
644 
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> 
..)\ 
DATIATRAYA v. KRISHNA RAO 
645 
riage which belonged to the family of the appellants and some of them 
are stridhana of the 3rd defendant; the respondent had no share therein 
or in the utensils etc. The trial court found that till the date of death of 
Ghanshyam-2 in 1909, he was jagirdar. Dattatraya-1 and Dwarkanath 
succeeded as Jagirdars by rule of primogeniture. After the abolition of 
the Jagir, compensation was paid to Dwarkanath during his life time as 
the eldest member of the family and the appellant no. 1 also had been 
paid balance of compensation. If a joint family possesses property 
which was admittedly joint, the presumption would be that the pro-
perty continued to be joint and the burden lies upon the member 
who claims as separate property to plead and prove it as separate or 
self-acquired property. On this reasoning, the trial court granted pre-
liminary decree for partition of half share in schedule 1 and 2 and half 
share in the moveable property viz., compensation amount jewellery 
and utensils. The High Court substantially upheld the findings of the 
trial court. It held that rule of primogeniture and survivorship was 
introduced by the Manual of Jagirdars of the Gwalior State (Qwaid 
Jagirdaran) in the year 1913 and with the abolition of the Jagir in 1951 
under the Madhya Bharat Abolition of Jagir Act 28, 1951, the proper-
ties became the ancestral Hindu Joint family properties and they are 
partible, irrespective of the fact in whose name it was entered either as 
Bhumidar in revenue papers or Jagirdar. The High Court while con-
firming the decree of the trial court, directed the respondent to bring 
into botch potch his jewellery and the appellants to have a half share 
therein and accordingly dismissed the appeal and the cross-objections. 
Hence this appeal by the appellants-defendants by special leave. 
Partly allowing the appeal, this Court, 
A 
B 
c 
D 
E 
HELD: Liability to partition is an ordinary feature of joint family 
property, but it must not be supposed that joint property an

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