# Push,,'41athi Viziaram G11j•;11thi Raj M11n1u v. Push111Mihi Visu:eswar Cl:j11p11t1ii Raj - **Citation:** [1964] 2 S.C.R. 403 - **Court:** Supreme Court of India - **Decided:** 1963-03-19 - **Case number:** Criminal Appeal No. 67 of 1959 - **Bench:** P. B. Gajendragadkah, M. Hidayatullah, J. c. SHAH - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/push-41athi-viziaram-g11j-11thi-raj-m11n1u-v-push111mihi-visu-eswar-cl-2934 - **Pages:** 45 ## Headnote Hindu Law-Joint family-Partition-Impartible estateJncidenls 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 partibleJ{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 inconsislant 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 conditions 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. A family custom, like any other special custom should be ancient and invariable and must be proved by clear and unambiguous evidence. In the case of a family custom, instances in support of the custom may not be as many or as frequent as in the case of customs pertaining to a territory o ## Text _Characters 0–39,597 of 93,051. This is a partial read: ask again with offset=39597 for what follows._ • ... 2 S.C.R. SUPREME COURT REPORTS 403 held, on the aforesaid circumstances and other evidence; 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 estateJncidenls 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 partibleJ{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 inconsislant 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 conditions 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. A family custom, like any other special custom should be ancient and invariable and must be proved by clear and unambiguous evidence. In the case of a family custom, instances in support of the custom may not be as many or as frequent as in the case of customs pertaining to a territory or to a community. In dealing with family customs, the consensus of opinion amongst the members of the family, the traditional belief entertained by them and acted upon by them, their state· ments and their conduct would all be relevant. The evidence in the present case established that there was a family custom under which some of the ceremonial jewels were treated as forming part of the regalia which belonged to the holder of the estate. · Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, (1872) 14 Moo. I. A. 570 and Abd1d Elusse-in IUian v. Bibi Sona (1917) L. R. 45 I. A. JO, referred to. The buildings which had been incorporated in the impartible estate were not made partible bys. 18 (4) of the abolition Act. The buildings falling within s. 18 (4) were v~sted in "the person who owned them immediately before the vCstingn. The expression "the person who owned" refers only to the landholder and not to other persons. The fact that the word "landholder" was not used in s. 18 (4) made no difference. CIVIL APPELLA'l'EJURISDIO'l'ION: Civil Appeals Nos. 170-177of1961. Appeals from the judgment and decree dated March 30, 1956 of the former Andhra Pradesh Court in 0. S. A. Nos. 129 and 131of1954 and 3 and 34 of 1955. G. S. Pathal:,, P. Ram Reddy, V. V. Raghavan, /{, S. Redd11 and A. V. V. Nair, for the appellant (in C. A. Nos. 170 and 171 of 1961) and respondent No. 1 (in C. A. Nos. 172 to 177of1961). ilf. G. Setalvad, C. K. General of India, S. Mohan G. Ramakrishna, S. .M'Jhan, Daphtary, Solicitor- ]( ummgamanga lam, T. Suryanarayaoo 1969 l'uslwvathi ViziaMm Gajap:ithi.RaJ Mann~ v. Push(JJ)a1hi Visweswar Gajopathi Raj I96J PwMu.llti Vidor_,,. G1jopa1hi Raj A-fart/fl v. Pwh.utlti ViJi£1JWM Gojapat!i Roj GajtnJ111aJl:or I. 406 SUPREME COURT REPORTS [1964JV6t.. i1furthy and 1'. V. R. 1'citachari, for the appellant (in C. As. ~os. l 'i:! and 173 of l!J61) aud respondent .No. 1 (iu C. A . .Nos. I 'ill and 171of1961) and respondent :'\o. 2 (in C. As. :\us. 174 to 177 of l!J61). A. V. Viswanathr' Sastri, D. V. Sastri and R. GopkEME douR.t REPORts 407 a large amount of property, movable and immovable including a large estate in and around Banaras. At his death he left behind him his only son Ananda Gajapathi Raj and his daughter Appala Kondayamba I. Appala Kondayamba I subse· queutly became the Maharani of Rewa. Ananda Gajapathi Raj died issueless on l'viay 23, 11197. Before his death, he had executed a will bequeathing all his properties to his maternal uncle's son Chitti Babu. Later, on December 18, 1897, Ananda Gajapathi Raj's mother Alak Rajeswari I adopted Chitti Babu to her husband so that as a result of his adoption, Chitti Babu became the adoptive brother of Ananda Gajapathi Raj who had executed a will in his favour before his death. It appears that chitti Babu bad been brought up in the Vizianagram family and when Ananda Gajapathi Raj executed his will, it was anticipated that Chitti Babu would, in due course, be adopted by Alak Ra jeswari I. Alak Rajeswari I died in 1901 after executing a will by which she gave a life ei;tate in her properties to her daughter, the Maharani of Rewa, and the remainder to the Children of Chitti Babu. On October 28, 1912, Chitti Babu executed a Trust Deed in favour of a trustee for the benefit of his minor son Alak Narayana, subject to payment of maintenance to maintenance holders and payments due to his creditors. On December 14, 1912, the Maharani of Rewa died, but before her death, she had executed a will bequeathing all her properties to Chitti Babu for life and the remainder in equal shares to Alak · Narayana and his younger brother Vijayananda Gajapathi Raj. During Chitti Babu's life-time the Impartible Estate Acts passed by the Madras Legis· lature in 1902, 1903 and 1904 came into force. Chitti Babu died on September, 11, 1922. On his deafl1, Alak N arayana succeeded to the estate. In 1935, the Vizianagram Estate and the other properties belonging to Alak Narayana went under Pushtit•1Jt!U Vi.!itr•m G4jop1thi RORTS [1964] vot. had been included in the suit constituted her 'stri· dhan' and were, thr.reforc, not available for partition bctwern the plain1iff and dcfeudauts l and :!. According to defendant No. ·1, 1he number of jewels to which she was thus entitled was \Hi. She filed a list of those ornaments; i6 of these which were shown in Appendix A were, according to her case, given to her by her husband, and 19 which were shown in Appendix B were given to her by her parents. Defendant ~o. 2 similarly set up a claim to 55 items of the jewellery as her 'stridhan', where· as the plaintiff wanted to exclude 140 items of the jewellery on the ground 1hat they constituted 1he regalia of the Zamindar and were impartible. On these pleadings, l :i issues were framed by the learned trial Judge before passing a final decree. In support of their respective contentions, the parties were content to rely mainly on documelltary evi· dcnce; except for defendant No. '1, none of them has stepped into the witness box. Defendant No. 4 was, however, examined on commission and she gave oral evidence in support of her claim. The learned trial .Judge held that the estate was impartible by custom while it was in the hands of Viziaram Gajapathi and Ananda Gajapathi and that they had the power to incorporate subsequently acquired immovable properties into the estate. He found that when the estate became impartible under Act II of 1!)01, the provisions of the Act took within their purview all accretions to the estate made prior to 18!Ji which had been incorporaled into the estate. The question as to whether any of the subsequently acquired properties had been incorporated in the estate was then tried by him as a question of fact and in doing so, he placed the onus to prove incor· poration on the plaintiff. He also found that whatever was an integral part of the impartible zamindari of Vizianagram before the notified date within the - 2 s;Cl.R. SUPREME COURT REPORTS 411 meaning of the Act, including lands and buildings which had been incorporated with the zamindari, would be governed by the provisions of the Act; the apportionment of lauds would be governed by ss. 12 and 47 of the Act, whereas the buildings in· corporated with the zamindari prior to the Act would vest in the plaintiff after the notified date and they would not be partible. In the result, the learned trial Judge recorded his findings on the several issues and passed a final decree. It is unnecessary to refer to all the details of the decree. It would be enough merely to state the broad items allotted to the parties which are in dispute before us. In regard to the claim made by the plaintiff that 140 jewels con· stituted regalia, the learned Judge recognised his claim in respect of 36 jewels only. Those jewels were items 1 to 19, 23, 24, 26, 27, 46, 56, 57, 79, 80, 108, 116, 124, 125, 126, 127 and 128 of Appen· dix A. Through oversight, the learned Judge had also included item No. 25 in this list, but it is con· ceded that that is an error. As to the plaintiff's claim that subsequently acquired properties had been incorporated in the estate, the learned Judge upheld his claim in respect of the Prince of Wales Market at Vizianagram, permanent lease·hold rights in respect of nine villages, and the Admirality House at Madras, Waltair House and Elk House at Ooty. Defendant No. 4's claim was partly recognised by the learned Judge who passed a decree in h~r favour in respect of 15 items ol jewels claimed by her. These were items 20, 45, 49, 54, 186, 203, :l30, 348, 349, two of the gold anklets in items 364, and 535 and items 136, 138, 141, and 297. The reference to the items is according to the list made by Mr. Sathianathan (Ext. P-157). It is conceded before us that this list included three items in Appendix B filed by defendant No. 4, and since defendant No. 4 had conceded the right of defendant No. 2 in respect of all the ornaments in appendix B, the inclusion of these three items was erroneous. In 1963 Pushauathi Vizi1"'111J G11japathi R•j A/1111111 v. Pushovathi Vis~e~w•r. Gajopatlri 114i Gaj,ndrag~dkar J; 1963 PuJ/tat:olhi Vi.;:;Wam Ga}apoclti &j Mannt •• PushtzNtJU Yiswe.su·ar Gli•P•t/U R.j G•jrndraz1dAar J. 412 SUPREME COURT REPORTS (Hl64] vat. other words, defendant No, 4's claim should be treated as valid only in respect of 12 jewels under the decree passed by the trial Court . This decree ga vc rise to four appeals by the respective parties. Plaintiff's appeal was No. 34/1955, defendant >l'o. l's 3/1955, defendant No. 2's No. 129(195! and defendant No. 4's No. Ial/l!l5!. It appears that the last appeal was allowed to be withdrawn and instead, defendant No. 4 was permitted to file cross-objections in regard to her claim. These appeals were, in due course, transferred to the High Court of Andhra because as a result of the reorganisation of Andhra State, it is the High Court of Andhra Pradesh that assumed jurisdiction over the subject-matter of the dispute in these appeals. Before the High Court, parties argued the same questions of fact and law and pressed their respective claims. The High Court has held that the trial Court was right in coming to the conclusion that the Prince of Wales Market and the permanent leasehold rights in respect of nine villages had been incorporated in the impartiblc estate. It has also held that the trial Court was right in rejecting the plaintiff's contention that the Bungalow at Ootacamund known, as 'Shoreham' as well as the Bungalow at Coonoor known as 'Highlands' had been incorporattcj in the estate and were impartible. The High Couri, however, differed from the trial Court in respect of three Bungalows, Admirality House, \Valtair House and Elk House, and it came to the conclusion that the plaintiff had failed to prove that these properties had been incorporated. That means that these three properties like the bungalow 'Shoreham' at Ootacamund and the Highlands at Coonoor were, according to the Appeal Court, partiblc between the plaintiff and defendants l & 2. In other words, the plaintiff Jost in respect of the said three properties before the Appeal Court. In regard to jewels, the Appeal Court has taken the views that items l2!l and ::! fiO, in 2 S.C.R. SUPREME COURT REPORTS 413 addition to the 36 items covered by the trial Court's decree, should be held to constitute the regalia of the zamindar. That means that the plaintiff's claim in that behalf succeeded to the extent of 38 jewels. In regard to the claim made by defendant No. 4, the Court of Appeal considered her evidence and was not inclined to accept her testimony at all. In the result, the decree passed by the trial Court in her favour has been set aside. Thus, the plaintiff and defendants 1 and 2 part! y succeeded before the Court of Appeal whereas, defendant No. 4 wholly lost her case. This decision of the Appeal Court has given rise to the present group of eight appeals. Civil Appeals Nos. 170 & l 71/1961 are by the plaintiff, C. A, Nos. 172 & 173/l961 are by defendant No. l, C. A. Nos. 174 & 175/1961 are by defendant No. 2 and C. A. Nos. 176 & 177of1961 are by defendant No. 4. In his appeals, the plaintiff contends that the Appeal Court should have recognised his claim to treat the five buildings which are situated outside the limits of Vizianagram Zamindari as impartible; these buildings are : the Admirality House, the Waltair House, the Elk House, the Little Shoreham and the Highlands. He also argued that the Appeal Court should have granted his claim in respect of 102 items of jewels which he alleged constituted regalia, In respect of this latter claim, Mr. Pathak for the plaintiff stated before us that he would confine his claim to 83 items of jewels and even as to that, he did not press his case. The plaintiff's case was therefore, substantially confined to these five house properties. ln their appeals, defendants 1 and 2 challenged the correctness of the decision of the Courts below that the Prince of Wales Market was impartible and that the permanant lease-hold rights in respect of nine villages were also not partible. They also con- ~rncjecj tqat the Courts below were ip error ill holding 1963 Pushauathi Vi,:iar1m Gajapdthi Raj M111n1 v. PushtWcthi Visw~lwar G•j,pathi Raj Gaj,.,Jrag•dkar J, /963 Pwlun:1thi Vi;:iaran1 Cdj•f>dJhi Raj· .lt,fannt v. PuMar1.thi V'Uu·tJu-nr Ga)•P•thi Raj C11jtndra.~ail:a1 J. 414 SU PRE.ME COURT REPORTS (1964) VOL. that any jewels could be treated as regalia of the Zamindar and as such impartiblc. According to them, none of the 38 jewels should have been held to be impartiblc. Defendant No. 4 contends that the Court of Appeal was in error in revrrsing the decisions of the trial Court particularly when the conclusions recorded by the trial Court in her favour were based mainly on the appreciation of her oral evidence. That, in brief, is the nature of the dispute before us in this group of 8 appeals. Before dealing with the dispute between the plaintiff and defendants l & 2, it may be convenient to deal with the claim of defendant No. 4. She is the widow of Chit ti Babu and the grandmother of the plaintiff and defendant No. I. Parties have agreed before us that her claim which was allowed by the trial Court should be decreed in her favour subject to the modification that the items in append.ix B in respect of which defendant No. 4 made a concession in favour of defendant No. 2 should be excluded; in other words, her claim should be confined only to 12 of the items decreed by the trial Court in list A. This concession has been made unconditionally by the plaintiff and defendant No. 2 and conditionally by defendant No. J. !\Ir. Kumaramangalam for defendant l\'o. I stated that his client was agreeable to have the decree passed in favour of defendant No. 4 restored subject to the modification just indicated, only if defendant No. 4 allows him to take his I /4th share in the jewels allotted to her by this compromise arrangement. This can be conveniently arranged, says Mr. Kumaramangalam, if defendant ~o. 4 gets the jewels allotted to her share valued by proper \'aluers and defendant No. I is then given an option to choose the jewels whose value would be I/4th of the total of the jewels of defendant No. 4's share. If this I ;4th valuation cannot be worked out with mathematical accuracy, adjustment can be made by payment of 2 S.C.R. SUPREME COURT REPORTS 415 cash by one party to the other as may be found necessary. Mr. Aggarwal who has appeared for defendant No. 4 expressly agrees to this condition. Therefore, by consent, we set aside the order passed by the Court of Appeal and restore the trial Court's decree passed in favour of defendant No. 4, subject to the modifications and conditions just specified. This compromise arrangement disposes of defendant No. 4 's appeals Nos. 176 & 177 of 1961. We would now revert to the dispute between the plaintiff and defendants 1 & 2. In dealing with this dispute, it is necessary to consider some points of law which have been argued before us. The first point which must be examined is in regard to the character of an impartible estate such as that which the Vizianagram family owns. Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag [{umari Debi (1), it must be taken to be wellsettled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the illuminating judgment delivered by Sir Dinshah Mulla for the Bo;trd, the relevant previous decisions, bearing on the subject have been carefully examined and the position of law clearly stated. In the case of an ordinary joint family property, the members of the family can claim four rights ; (I) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and ( 4) the right of survivorship. It is obvious that from the very nature of the property which is impartible the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj J(u~ri v. Dearaj J( uari ('), and the First Pittapur case-Venkata Su,ryli \ll, (1932) l ,_R. 99 LA, 331. (2) (!888) L,R, 15 LA, 51: 10 AU, 27<- 196!1 Pu.shavathi Vi.tiar.m Gajapathi R•f ,\{c1111e •• Pusluw.athi ViJw1sw.cr G6j11.;4thi R•i Gt1jrni11gaikar J, 1963 Pushaziathi VUitJram Gajapathi Raj .Mannt v. Pusltm:athi Viswtsw:lr Gajapathi Raj GojrndragaJ/iar J. 416 SUPREME COURT REPORTS [1964] VOL. v. Court of Jr ards(' ). Even the right of maintenance as a matter of right is not applicable as laid down in the Second Pittapur Case-Ram Rao v. Ra,ia of Pitu1JY1ir ('). The 4th right i:iz., the right of survi· vorship, however, still remains and it is by reference to this right that the property, though impartiblc, has, in the eyes of law, to be regarded as joint family property. The right of surdvorship which can be claimed by the members of the undivided family which owns the impartible estate should not be con· fused with a mere spes succcsbionis. Unlike spes succcssioni8, the right of survivorship can be renounced or surrendered. It also follows from the decision 111 Shiba Prasad Singh's case (3), that unle~ the power is excluded by statute or custom, the holder of customary impartiblc estate, by a declaration of his intention can incorporate with the estate self-acquired immov· able property and thereupon. the property accrues to the estate and is impressed with all its incidents. including a custom of descent by primogeniture. It may be otherwise in the case of an estate granted by the Crown subject to descent by primogeniture. As Sir Dinshah Yfulla has pointed out, questions of incorporation have been dealt with in several decisions of the Board as well as decisions of Indian High Courts, but the competency of incorporation was not challenged in any of them. It is clear that incor· poration is a matter of intention and it is only where evidence has been adduced to show the intention of the acquirer to incorporate the property acquired b\· him with the imparti ble estate of which he is a holder that an inference can be drawn about such incor· poration. In all such cases, the crucial test is one of intention. It would be noticed that the effect of incorporation in such cases is the reverse of the effect of blending self-acquired property with the joint family property. In the latter category of cases where a person (I I (18119) L.R. 26 I.A. 83: 22 Mad. 383. (2) (1918) L.R. 4~ I.A. 148: 41 Mad, 778. (S) (1952) L.R. 59 J.A.131· I ' ' 2 S.C.R. SUPREME COURT REPORTS 417 acquires separate property and blends it with the property of the joint family of which he is a coparcener, the separate property loses its character as a separate acquisition and merges in the joint family property, with the result that devolution in respect of that property is then governed by survivorship and not by succession. On the other hand, if the holder of an impartible estate acquires property and incorporates it with the impartible estate he makes it a part of the impartible estate with the result that the acquisition ceases to be partible and becomes impartible. In both cases, however, the essential test is one of intention and ·so, wherever intention is proved, either by conduct or otherwise, an inference as to blending or incorporation would be drawn. It was urged before the Privy Council in the case of Shiba Prasad Singh (1), that to allow the operation of the doctrine of incorporation, would really give the holder of impartible estate a right to prescribe a customary rule of succession different from that of the ordinary law, but this argument was rejected on the ground that "under the Hindu system of law, clear proof of usage", even if it be a family usage, "will outweigh the written text of the law, vide Collector of Madura v. Mootoo Ramalinga Sathupathy (2). "The power to incorporate", ob- . served Sir Dinshah Mulla, "being a power inherent in every Hindu owner applies as well to a customary impartible Raj unless it is excluded by statute or custom". It is, of course, true that none of the considerations which are relevant in respect of immovable property, would apply to movable property and so, the theory of incorporation cannot apply to such movable property. That, however, is not to say that by a family custom, movable property cannot be treated as impartible. If a family custom is proved in the manner in which family customs have to be proved that certain (I) (1~32) L.R. 59 I.A. 331. (2) (1868) 12 Moo. I.A. 397, 436, 1988 PushotJthi Viziartim G11j•jlathi Raj Manni •• Pushovathi Visw1sw1ir Gajapathi Rgj Gajendr•tcikwr J. 1963 Pu,1uzu1thi Vizicr.m fJaj1poilii &j Mant11 v. Pushe•thi Vis