# STATE OF U.P v. RAJ KUMAR RUKMANI RAMAN BRAHMA - **Citation:** [1970] 2 S.C.R. 355 - **Court:** Supreme Court of India - **Decided:** 1970 - **Case number:** Civil Appeal No. 748 of 1966 - **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-raj-kumar-rukmani-raman-brahma-4814 - **Pages:** 8 ## Headnote c D E F G H U.P. Zamindari Abolition and Land Reforms Act, 1950 (1 of 1951), s. 23(1) c.nd s. 19-A Gujaranama. executed by Raja of an impartible estate before passing of Act in favour of his br0ther rvhether a gift or sale within meaning of s. 23(1)-Grantee whether entitled to rehabilitation grant under s. 79. The Raja of an impartible Estate in U.P. executed certai11 Gujaranama. deeds in 1949 including one in favour of the respondent, his younger brother. After the U.P. Zamindari and Land Reforms Act, 1950 (U.P. Act 1 of 1951) came in force the 'respondent made an application before the Rehabilitation Grants Officer under s. 79 of the Act The Rehabili· tation Grants Officer held that the respondent was entitled to the Grant and the order was upheld by the higher courts including the High Court. In appeal by the State of U.P. before this Court it was contended that the Gujaranama executed by the Raia in favour of the respondent wa·s a transfer by way of sale or gift within the meaning of s. 23 (I) of the Act and therefore could not be recognised for purposes of assessing the amount of Rehabilitation Grant. HELD : (i) After the decision of the Privy Council in Shiba Prasad Singh's case it must be taken to be well-settled that an estate which is impartible by custom cannot. be said to be the separate or exclusive pfoperty of the holder of the estati;, If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture it will be· a pal'.t of the joint estate of the undivided Hindu family. In the ca·se of an ordinary joint family property the members of the family can~ claim four rights: (1) 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 obviou°" from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility. The right of maintenance and the right of sur· vivorship, however, still remain and it is by reference to these rights that the property, though impartible has, in the eye of law, to be regarded· as joint family property. The right of survivorship, l!nlike mere sμes successionis cau be surrendered. The right of maintenance to junior members out of an impartible estate is based on joint ownership of the· iunior members of the family. [361 H-362 DJ Shiba Prasad Singh v. Rani Prayag Kumar; Devi, 59 I.A. 331,. Rani Sartaj Kuari. v. Deoraj Kuari, 15 I.A. 51, First Pittapur case. 26 I.A. 83, Co/lectar of Gorakhpur v. Rar.t Sunder Mal, 61 I.A. 286 and· Baijncth Prasad Singh v. Tej Bali Singh, 48 I.A. 195, applied. Raja Yarlagadda Mallikarjuna Prasad Nayr.du v. Raja Yarlagadda Durga Prasad Nayadu, 27 I.A. 151 and Protap Chandra Deo v. Jagadish Chandra Deo, 54 ~.A. 289, refe'rred to. (ii) In the pre·sent case there was the statement of the Raja in the Gnjaranama deed that according to the law and custom of the estate the·. . 3 56 SUPREME COURT REPORTS [1970] 2 S.CR . .eldest son of the Raja becon1cs the owner of the e3tate on the death of the earlier Raja and that the "younger sons have right to maintenance and they arc given reasonable share of the estate in lieu of right of, maintenance. Jn vie•·' of this admission of the Raja it \Vas not Possible to hold that the transfer of the properties in the Gujaranama deed v.·as .a transfer by way of gift. It was also not a sale of the properties for there is no money consideration. lt was manifest that the transaction was by \Vay of a settlement to the respondent by the R.aja in lieu of the right of maintenance of the respondent which was obligatory upon the holder of impartible estate. The Gujaranama was therefore not hit by the provision of s. 23 of the Act. [363 D-Fl (iii) The plea on behalf of the appellant that the case must be remanded to the Rehabilitation Officer because no issues were framed or evidence taken in th ## Text A STATE OF U.P. v. RAJ KUMAR RUKMANI RAMAN BRAHMA September II, 1969 B [J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] c D E F G H U.P. Zamindari Abolition and Land Reforms Act, 1950 (1 of 1951), s. 23(1) c.nd s. 19-A Gujaranama. executed by Raja of an impartible estate before passing of Act in favour of his br0ther rvhether a gift or sale within meaning of s. 23(1)-Grantee whether entitled to rehabilitation grant under s. 79. The Raja of an impartible Estate in U.P. executed certai11 Gujaranama. deeds in 1949 including one in favour of the respondent, his younger brother. After the U.P. Zamindari and Land Reforms Act, 1950 (U.P. Act 1 of 1951) came in force the 'respondent made an application before the Rehabilitation Grants Officer under s. 79 of the Act The Rehabili· tation Grants Officer held that the respondent was entitled to the Grant and the order was upheld by the higher courts including the High Court. In appeal by the State of U.P. before this Court it was contended that the Gujaranama executed by the Raia in favour of the respondent wa·s a transfer by way of sale or gift within the meaning of s. 23 (I) of the Act and therefore could not be recognised for purposes of assessing the amount of Rehabilitation Grant. HELD : (i) After the decision of the Privy Council in Shiba Prasad Singh's case it must be taken to be well-settled that an estate which is impartible by custom cannot. be said to be the separate or exclusive pfoperty of the holder of the estati;, If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture it will be· a pal'.t of the joint estate of the undivided Hindu family. In the ca·se of an ordinary joint family property the members of the family can~ claim four rights: (1) 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 obviou°" from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility. The right of maintenance and the right of sur· vivorship, however, still remain and it is by reference to these rights that the property, though impartible has, in the eye of law, to be regarded· as joint family property. The right of survivorship, l!nlike mere sμes successionis cau be surrendered. The right of maintenance to junior members out of an impartible estate is based on joint ownership of the· iunior members of the family. [361 H-362 DJ Shiba Prasad Singh v. Rani Prayag Kumar; Devi, 59 I.A. 331,. Rani Sartaj Kuari. v. Deoraj Kuari, 15 I.A. 51, First Pittapur case. 26 I.A. 83, Co/lectar of Gorakhpur v. Rar.t Sunder Mal, 61 I.A. 286 and· Baijncth Prasad Singh v. Tej Bali Singh, 48 I.A. 195, applied. Raja Yarlagadda Mallikarjuna Prasad Nayr.du v. Raja Yarlagadda Durga Prasad Nayadu, 27 I.A. 151 and Protap Chandra Deo v. Jagadish Chandra Deo, 54 ~.A. 289, refe'rred to. (ii) In the pre·sent case there was the statement of the Raja in the Gnjaranama deed that according to the law and custom of the estate the·. . 3 56 SUPREME COURT REPORTS [1970] 2 S.CR . .eldest son of the Raja becon1cs the owner of the e3tate on the death of the earlier Raja and that the "younger sons have right to maintenance and they arc given reasonable share of the estate in lieu of right of, maintenance. Jn vie•·' of this admission of the Raja it \Vas not Possible to hold that the transfer of the properties in the Gujaranama deed v.·as .a transfer by way of gift. It was also not a sale of the properties for there is no money consideration. lt was manifest that the transaction was by \Vay of a settlement to the respondent by the R.aja in lieu of the right of maintenance of the respondent which was obligatory upon the holder of impartible estate. The Gujaranama was therefore not hit by the provision of s. 23 of the Act. [363 D-Fl (iii) The plea on behalf of the appellant that the case must be remanded to the Rehabilitation Officer because no issues were framed or evidence taken in the case hat! no force because there \Vere ·no questions of fact raised in the written statement on which evidence could be taken. 1364 A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 748 of 1966. Appeal by special leave from the judgment and order dated February 16, 1965 of the Allahabad High Court in Civil Revision No. 373 of 1963. B. Sen and 0. P. Rana, for the appellant. Yogeshwar Prasad, Paras N. Tiwari, S. S. Khanduja for .B. Dutta, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Allahabad High Court dated February 16, 1965 in Civil Revision No. 373 of 1963 which-was filed against the judgment of the Additional Civil Judge, Mirzapur dated .December 4, 1962 in Revenue Appeal No. 417 of 1961. The respondent made an application before the Rehabilitation Grants Officer, Mirmpur under s. 79 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 to obtain the determination and payment of rehabilitation gra,nt to him. The case of the respondent was that he was the son of the late Raja Sharda Mahesh Narain Singh Shah of Agori Barhar Raj, tehsil Robertsganj in Mirzapur district. Raja Anand Brahma Shah who was a Malgujar o.f more than Rs. 10,000 annual!y executed Gujaranama deeds in favour of his younger brothers and his mother separately in the year 1949. By these deeds, certain villages were transfe1Ted by ·the raja to the Raj Kumar and the mother in lieu of their right of maintenance. One of such Gujaranamas was executed by Raja A;nand Brahma Shah in favour of respondent, Raj Kumar Rukmini Raman Brahma who is one of his younger brothers. The docu- :ment was executed on October 5, 1949 and registered on January A B c D E F G H U.l'. STATE v. RAJ KUMAR (Ramaswami, !.) 357 A 18, 1950. The appllcation of the respondent before the Rehabilitation Grants Officer was opposed by the appellant. The objection of tile appellant was that the trap:isfer in favour of the respondenJ; cannot be legally recognised in view of s. 23 ( 1 )(a) of the U. P. Zamindari Abolition & Land Reforms Act, 1950 (U.P. Act 1 of 19 51 ) (hereinafter called the Act) for the purpose of assesse ing the amount of rehabilitation grant. By his order dated J anuary 28, 1961 the reha!Jilitatiop. Grants Officer held that the respondent was entitled to rehabilitation grant. The appellant preferred an appeal against the order of the Rehabilitation Grant Officer. The appeal was heard by the Additional Civil Judge, Mirzapur, who rejected the objection of the appellant and dismissed the appeal. The appellant took the matter in revision to the AllahaC bad High Court, but the Revision Application was dismissed on February 16, 1965. 0 It is necessary at this stage to set out the' releviant provisions of the Act: Section 3 (12) : "In this Act, unless there is anything repugnant in the subject or context- (12) 'Intermediary' with reference to any estate means a proprietor, under-proprietor, sub-proprietor, E thekedar, permanent lessee in Avadh and permanent tenure-holder of such estate or ?art thereof." F G " Section 23: "Transfer by way of sale or gift not to be recognised- ( 1) Notwithstanding anything contained in any law, no transfer, by way of sale or gift, ·of any estate or part thereof- ( a) made on or after the first day of July, 1948, shall be recognised for the purpose of assessing the amount of rehabilitation grant payable to the intermediary; (2) Nothing in sub-section ( 1) shall apply to- (a) any sale made under order of a court in execution of any decree or order for· payment of money; or; (b) any sale or gift made in favour of a wakf. trust, endowment or society established wholly for charitable purposes, unless the State Government i:n any particular case directs otherwise." L2Sup(Cl)/70-11 3SB SUPREME COURT REPORTS [1970] 2 S.C.R. Section 24(b)- "Any contract or agreement made between an intermediary and any person on or after the first day of July, 1948, which has the effect, directly or indirectly,- (a) (b) of entitling an intermediary to receive Ql1 account of rehabilitation grant an amount higher than what he would, but for the contract or agreement, be entitled to under this Act shall: be made and is hereby declared null and void." Section 73 : "There shalJ be paid by the State Government to every intermediary (other than a thekedar), whose estate or estates have been acquired under the provisions of this Act, a rehabilitation grant as hereinafter provided; Provided that, where. on the date immediately preceding the date of vesting, the aggregate land revenue payable by the intermediary i:n respect of all his estates situate in the areas to which this Act applies exceeded rupees ten thousand, no such grant 'shall be paid to him." The principal question involved in this appeal is whether the Gujaranama deed dated October 5, 1949 executed by Raja Anand Brahma Shah is a transfer by way of sale or gift within the meaning of s. 23 ( 1) of the Act and cannot, there.fore, be recognised for purpose of assessing the amount of Rehabilitation Grant. It was argued on behalf of the appellant that on a true construction of the document the transaction must be taken to be a gift of the property by Raja Anand Brahma Shah to the respondimt. In our opinion there is no warrant for this argument. The relevant portion of the Gujaranama deed dated October 5, 1949 states : " ...... I Shri Raja Anand Brahma Shah son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj, Rampur Estate Pargana Barbar, Tehsil Robertsgainj, District Mirzapur, am the proprietor of Angori Raj District Mirzapur which is an impartible estate. That according t.> law and custom the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and the younger sons have a right to maintenance and they are given a reasonable share of the estate ~n lieu of the right of maintenance so as to enable them to pass their life in accordance with their A B c D E F G H A c D E F G II U.P. STATE v. RAJ KUMAR (Ramaswami, !.) 359 status. The estate is under an obligation to provide maintenance of this type.. Therefore it is obligatory upon me also to make some provision for the maintenance of my younger brother Shri Rukmini Ram~ Brahma by giving him some property. He also desires that some maintenance should be provided for him. Therefore I out of my sweet will ·and wi!lingness do hereby execute this document in the terms following : !. That from today's date I give the property detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his right of maintenance and I deliver to him the proprietary possession of the properties afore-mentioned which include all rights pertaining to Sir land, self cultivated land, water and forest rates, houses and buildings, shops, jungles, hills etc. 2. That Shri Rukmini Raman Brahma and his male lineal descendants will as per the custom of maintenance prevailing in my estate, remain in possession of the said properties from generation to generation and that in case of there being no male lineal descendants of the transferee the property shall revert to the holder of the jagir. 3. That the erstwhile transferee for maintenance shall be competent to transfer the property detailed below subject to the condition that prior to sale it is and shall be obligatory on his part to ~ive intimation in this behalf to the erstwhile holder of the jagir bv means of a registered notice and if he be not willing to have the deed executed in his favour the property may be given in sale to anv other person. Otherwise the deed of sale shall be invalid and shall be liable to pre-emption. 4. That the trainsferee for maintenance shall pay land revenue and other customary dues and taxes to the Government. The jagir shall not be responsible for the payment of the same. " 5. That the transferee for maintenance may get his name entered in the revenue papers. We shall have no objection in this regard. Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Devi( 1) it must be faken 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 (I) 59 I.A. 331. 360 SUPREME COURT REPORTS (1970] 2 S.C.R. estate. If the holder has got the estate as an ancestral estate and he has succe.eded to it by primogeniture it will be a part of the joint estate of the undivided Hijlldu family. In the case of an ordinary joint family property the members of the family can claim four rights: (l)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 from the very nature of the property which is irnpartible that the first of these rights can,not 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 Kuari v. Deoraj Kuari(') and the First Pittapur case('). The right of maintenance and the right of survivorship, however, still remain and it is by reference to these rights that the property, though impartible has, in the eye of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successionis. Unlike spes succession is, ~he right of survivorship can be renounced or surrendered. It was held by the Judicral Committee in Collector of Gorakhpur v. Ram Sunder Mal('), the right of mainte;nance to junior members out of an impartible estate was based on joint ownership of the junior members of the family. In that case Lord Blanesburgh after stating that the judgment of Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh(') had definitely negatived the view that the decisions of the Board in Sartaj Kuari's case(') and the First Pittapur case(2) were destructive of the doctrine that an impartible zamindari could be in