THAKORE SHRI VINAYASINHJI (DEAD) BY LRS. versus KUMAR SHRI NATWARSINHJI & ORS.

Citation: [1988] 1 S.C.R. 1110 · Decided: 18-11-1987 · Supreme Court of India · Bench: M.M. DUTT · Disposal: Dismissed

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Judgment (excerpt)

THAKORE SHRI VINAYASINHJI (DEAD) BY LRS. 
v. 
KUMAR SHRI NATWARSINHJJ & ORS. 
NOVEMBER 18, 1987 
B 
[MURARI MOHON DUTT AND M.H. KANIA, JJ.] 
Hindu Law-Whether the holder of an impartible estate to which 
"r 
the rule of primogeniture applies as an essential characteristic of such an 
estate, can alienate the properties comprised in the estate, by a deed of 
>-
gift or a will. 
C 
The father of the appellant Thakore Shri Vinayasinhji, the Ruler,.,.,..<.._ .. 
of the former Mohanpur State, gifted certain properties to his youngest 
· 
son, the respondent No. 1, by a deed of gift dated May 14, 1951, and also 
bequeathed certain properties to the respondent No. 1 and his mother 
by his will dated May 22, 1951. The father died in 1955, whereupon the 
appellant became the Ruler. He instituted a suit, challenging the valid· 
D ity of the said deed of gift and the will on the ground that as the rule of 
primogeniture applied to the Raj Estate, he being the eldest son 
succeeded to the 'Gadi' and that his father, the former Ruler, had no 
power of alienation either by gift or by will and accordingly, the disposi· 
E 
tion made by him by the above-said deed of gift and the will in favour of \ , 
his younger brother, the respondent No. 1 was illegal and invalid. 
r 
The Civil Judge decreed the suit in part, declaring that the deed of 
gift and the will were illegal, and directing the respondent No. 1 to hand 
over to the appellant the possession of the properties mentioned in the 
deed of gift. The Civil Judge passed a decree for mesne profits, but 
refused the prayer of the appellant for an injunction on the ground that he 
F 
had failed to prove his possession of the properties mentioned in the 
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Being aggrieved by the judgment and decree of the Civil Judge, 
the respondents preferred an appeal to the High Court. The High Court 
held that the former Ruler had the power of alienation and, accord-
G ingly, the deed of gift and the will impugned were legal and valid. The 
judgment and decree of the Civil Judge were set aside. Thereupon, this 
appeal was filed before this Court by special leave against the decision 
of the High Court. During the pendency of the appeal, the appellant f-
Thakore Harnathsinhji Vinayasinhji died, leaving behind the present 
appellants, who were already on record as his heirs and legal 
H representatives. 
1110 
THAKORE VINAYASINHJI v. KUMAR NATWARSINHJI 
1111 
Dismissing the appeal, the Court, 
A 
HELD: It was not disputed that the Raj Estate of which the 
deceased appellant was thl Ruler is impartible and that the rule of 
primogeniture-<1ne of the essential characteristics of an impartible 
estate-is also applicable. The question involved for the consideration 
B 
of the Court was whether the holder of an impartihle estate to which the 
rule of primogeniture applies as an essential characteristic of such an 
estate, could alienate the properties comprised in the estate by a deed of 
gift or will. [lllSD-E] 
c 
The law has been clearly and succinctly stated in the illuminating 
judgment of Sir Dinshah Mulla in Shiba Prasad Singh v. Rani Prayag 
Kumari Debi AIR 1932 P(; 216. There is no restraint on the power of 
alienation of the holder of the impartihle estate, as any restraint on the 
power would be incompatible with the custom of impartibility. The 
impartible estate, though ancestral, is clothed with the incidence of 
self-acquired and separate property except as regards the right of D 
survivorship which is not inconsistent with the custom of impartibility. 
The right of survivorship has been held to be a birthright and is not a 
mere spes successionis similar to that of a reversioner succeeding on the 
death of a Hindu widow to her husband's estate. [ll16G-H; ll17A] 
In Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51, the right of E 
alienation of the holder has been recognised and in Shiba Prasad's case 
(Supra) such right of the holder is reiterated. Impartibility is essentially 
a creature of custom which supersedes the general law. It is true that 
the impartible estate retains the character of joint family property only 
to the extent that.there is a right of survivorship by birth to the junior 
members of the family, but, as the Privy Council has observed in Shiba 
F 
Prasad's case (supra) that in all other respects it is clothed with the 
incidents of self-acquired and separate property, it follows that the 
holder of the impartible estate has the unlimited right of alienation not 
onl

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