LexMIRZA RAJA SHRI PUSHAVATHI VIZIARAM GAJAPATHI RAJ MANNE SULTAN BAHADUR & ORS. versus SHRI PUSHAVATHI VISWESWAR GAJAPATHI RAJ & ORS.
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2 S.C.R. SUPREME COURT REPORTS
403
held, on the aforesaid circumstances and other evi-
dence; that Accused-IO was an active participant in
the conspiracy. In our view, there is ample material
to justify it. In the result Criminal Appeal No. 67 of
1959 is dismissed.
Or. A. No. 82 of 1962 dismissed.
Sentence modified.
Or. A. No. 83 of 1962 dismissed.
Sentence modified.
Or. A. No. 136 of 1959 dismissed.
Or. A. No. 172 of 1959 dismissed.
Or. A. No. 67 oj 1959 dismissed .
MIRZA RAJA SHRI PUSHAVATHI
VIZIARAM GAJAPATHI RAJ
MANNE SULTAN BAHADUR & ORS.
v.
SHRI PUSHAVATHI VISWESWAR
GAJAPATHI RAJ & ORS.
(P. B. GAJENDRAGADKAH, M. HIDAYATULLAH
and J. c. SHAH JJ.)
Hindu Law-Joint family-Partition-Impartible estate-
Jncidenls of-Rule of incorporation-If applicable both to immov-
~ble and moi·able property-Family custom of impartihilily of
movablu~Alienation, power of holder-Statute abolishing estate,
J1uildings incorpnrat-d in impartible estate, if become partible-
J{adms Impartible Estates Acts, (.lllad. II of J.902), (Marl. II
of 1903) and (Jlad. 1I of 1904)-Madras Estates (Abolition and
clYllversiOn into Ryot1mri) Act, 1948 (Mad. €6 of J.948), s. 18 (4).
The Vizianai:ram family was a joint Hindu family.
It
owne<). a very large estate which was impartible and devolved by
primogeniture.
At various times the holder of the est<1\e
1963
Sardul Singh
C1ve1shar
••
State of MaharoshtrtA
Subb• Rao J.
1963
March 19
1963
Push,,'41athi Viziaram
G11j•;11thi Raj M11n1u
v.
Push111Mihi Visu:eswar
Cl:j11p11t1ii Raj
404
SUPREME COURT REPORTS [1964) VOL.
acquired other properties, moveable as well as immovable, some
of which were incorporated in the impartible estate.
In 19411,
the Madras Estates (Abolition and Conversion into Ryotwari)
Act, 1948 was enacted and the Vizianagram estate was taken
over by the State. The holder of the estate filed a suit for parti·
tion of the joint family properties, claiming as impartible the
estate as originally granted to the ancestors of the p•rty together
with certain immovable properties subsequently acquired and
incorporated in the original estate and certain jewels described
as regalia.
The suit was contested, int.r alia, on the grounds
that the subsequently acquired immovable properties were not
impartible, that the theory of incorportion could not apply to
movables and that even if the buildings had been incorporated
in the °'tate by virtue of s. 18 (4) of the Act they became
partible.
Held
that the immovable property subsequently acquired
which had been incorporated in the estate originally granted
was also impartible.
An ancestral estate to which the holder
has sncceeded hy the custom of primogeniture is part of the
joint estate of the undivided lfindu family.
Though the other
rights enjoyed by member of a joint Hindu family are inconsis-
lant in the case of an impartible estate the ri,~ht of survivorship
still exists.
Unless the power is excluded by statute or custom,
the holder of customary impartible estate, by a declaration of
his intention, can incorporate \Vith the estate his self-acquired
irromovable property and thereupon the said property accrueo
to the estate and is impressed with all its incidents including a
custom of descent by pri_mo).{eniture.
In all ~uch cases the
crucial test is one of intention.
A holder of an imputible
estate can alienate the estate by gift inter vit!Qs, or even by a
will, though the family is 1mdivided; the only limitation on thh
power could be l>y a family custom to the contrary or the condi-
tions of the tenure which have the same effect. The M idras
Impartible
Estates Acts, 1902-1904
have expreS5ly m•de
impartible estates inalienable; this inalienability attaches not
only to the e>tate as originally granted but also to the pcopertie<
incorporated in it.
Shiba Pr(lJJarl Sin~h v. Rani l'rayag Kumari Devi (1932)
L. R. 59 I. A, 331, Rani Sartaj Kuari v. D•oraj Kuari (1882)
L. R. 15 I. A. 51, Venkata Surya v. Court of 1Vard8, (1888) L.R.
26 I. A. 83-Rarn R>W v. Raja of Pittapur, (1918) L. R 45
I. A. l4ll and Collector of Madra.• v. Mootoo
Ramalinyi
S«thupathy, (1868) 12, Moo. I. A. 397, referred to.
The theory of incorporation does not apply to movable
property.
But if a family eu•tom is proved that a c~.'!rtaiq
2 s.c.R..
SUPREME COURT REPORTS
405
category of movable property is recognised by the family as
impartiblc, that custom would
be
recognised.
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