# VARU & ORS v. RAJAH VELUGOTI SARVAGNA KUMARA KRISHNA Y~CHENDRA VARU & ORS - **Citation:** [1970] 3 S.C.R. 88 - **Court:** Supreme Court of India - **Decided:** 1969-10-28 - **Case number:** Civil Appeal No. 2113 of 1966 - **Bench:** J. C. Shah, Y. Ramaswami, A. N. Grover - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/varu-ors-v-rajah-velugoti-sarvagna-kumara-krishna-y-chendra-varu-ors-4980 - **Pages:** 26 ## Headnote B lntpartible Estate-Ve11ka1agiri Eslate-llnpartible by cus101n-!11zpartlble Esta~s Act, 1904 including estate in Schedule-Madras Es!ates (Al·olition and Coni·.ersion into Ryotwari) Act, 1948 vesting tstate in Go1ern1nent-Jt'he1her impartibility continues in 1c!!.pert of properties no1 ~o C 1•ested-Jn1partible estate, incidents of. The appellants filed a suit for partition claiming their share in certain properties of the Venkatagiri Estate which did not vest in the State by virtue of the Madras E~tates (Abolition and Conversion into Ryot\\'ari) Act, ! 948 and in the alternative for maintenance in terms of an agreement entered into in 1899. Their contention was that the Venkatagiri Estate became an impartible estate ·only under the agreement entered into in 1889 and became a statutory impartible estate by virtue of its incluo;.ion in the schedule to tHe Jmpartible Estates Act, 1904 and on the repeal ol that enactment by the Abolition Act, 1948. the estate became partible; that the properties claimed in t.he suit. though outside the territorial limits of the ZaminJari. were held impartible only as appurtenant to the main estate and after the impartible character of the main estate \Vas Jost those properties became partible. The High Court held that the estate was impartihle by custom and was not made impartible for the first time under the. agreement of 1889 or by the Acts of 1902 or 1904 and the claim for partition was negatived. As regards the claim for maintenance the court held that a similar claim had been rejected by the judicial committee as not tenable either under the agreement of 1889 or under Hindu law or on the basis of custom. In appeal to this Court, HELD : ( i) There is no reason to differ from the finding of the High Court that the estate of Venkatagiri was an ancient impartib]e estate by custom and was not made impartible for the first time under the agreement of 1889 or by Madras Acts of 1902 or 1904. [100 A] Gopala Krishna v. Sarvarna Krishna, 1955 A.W.R. 590, Nargunt_v Lutchmeedavanah v. Venganza Naidoo, 9 M.I.A. 66, Raja Ras Venkata Mahipathy Ran1krishna v. Court of Wards I.L.R. 2 Mad. 283 .and Pushavatlii Viziram Gajapathy Raj Manna v. Pushavathi Vise.nvar, [1964J :! S.C.R. 403. D E F G (ii) In relation to Venkatagiri Zamindari the Madras Impartihle Estates Act has been repealed so 'far as the Act applied to the Estate which by opc""tion of s. 3 (b) of the Abolition Act got transferred and became vested in the State Government. In relation to properties which have not become so vesfed in the Government the Madras Impartiole Estates Act, 1904 continues to be in force. Since the Abolition Act did H not affect the plaint properties these have continued to be what they were at the time of incorporation with the Zamindari. namely. the properties retain their impartible character. The principle cossante rat.ione legi.'i • I- A B c D E VELUGOTI VT VELUGOTI (Ramaswami, I.) 89 -..•essat ipsa lex has no application in the present case for many times custom outlives the condition of things which give it birth. The iunior members of a joint family in the case of ancient impartible joint family estate, take no right in the property by birth and, therefore, have no right of partition having regard to the nature. of the estate which is impartible. [102 D-H, 103 H, 104 E-Fl Rai Kishore Singh v. Mst. Gahanabai, A.LR. 1919 P.C. 100, C. /. T. J>unjab v. Dewan Krishna Kishore, 68 I.A. 155 and Raja Velugoti v. Raja Rajeshwara Rao, 68 I.A. 181, (iii) The agreement of 1889 in so far as it relates to payment of main· tenance continues to be in force in spite of the. coming into operation of the Abolition Act. In the absence Of express words_ to the effect, it would not be right to attribute to the legislature an intention to free the properties not transferred to the Government by the operation of s. 3(b) of the Act from liability to contribute towards the maintenance of the junior members under such a contract or family arrange ## Text _Characters 0–39,348 of 66,445. This is a partial read: ask again with offset=39348 for what follows._ SS RAJAH VELUGOTI KUMARA KRISHNA YACHENDRA A VARU & ORS. v. RAJAH VELUGOTI SARVAGNA KUMARA KRISHNA Y~CHENDRA VARU & ORS. October 28, 1969 (J. C. SHAH, Y. RAMASWAMI AND A. N. GROVER, JJ.] B lntpartible Estate-Ve11ka1agiri Eslate-llnpartible by cus101n-!11zpartlble Esta~s Act, 1904 including estate in Schedule-Madras Es!ates (Al·olition and Coni·.ersion into Ryotwari) Act, 1948 vesting tstate in Go1ern1nent-Jt'he1her impartibility continues in 1c!!.pert of properties no1 ~o C 1•ested-Jn1partible estate, incidents of. The appellants filed a suit for partition claiming their share in certain properties of the Venkatagiri Estate which did not vest in the State by virtue of the Madras E~tates (Abolition and Conversion into Ryot\\'ari) Act, ! 948 and in the alternative for maintenance in terms of an agreement entered into in 1899. Their contention was that the Venkatagiri Estate became an impartible estate ·only under the agreement entered into in 1889 and became a statutory impartible estate by virtue of its incluo;.ion in the schedule to tHe Jmpartible Estates Act, 1904 and on the repeal ol that enactment by the Abolition Act, 1948. the estate became partible; that the properties claimed in t.he suit. though outside the territorial limits of the ZaminJari. were held impartible only as appurtenant to the main estate and after the impartible character of the main estate \Vas Jost those properties became partible. The High Court held that the estate was impartihle by custom and was not made impartible for the first time under the. agreement of 1889 or by the Acts of 1902 or 1904 and the claim for partition was negatived. As regards the claim for maintenance the court held that a similar claim had been rejected by the judicial committee as not tenable either under the agreement of 1889 or under Hindu law or on the basis of custom. In appeal to this Court, HELD : ( i) There is no reason to differ from the finding of the High Court that the estate of Venkatagiri was an ancient impartib]e estate by custom and was not made impartible for the first time under the agreement of 1889 or by Madras Acts of 1902 or 1904. [100 A] Gopala Krishna v. Sarvarna Krishna, 1955 A.W.R. 590, Nargunt_v Lutchmeedavanah v. Venganza Naidoo, 9 M.I.A. 66, Raja Ras Venkata Mahipathy Ran1krishna v. Court of Wards I.L.R. 2 Mad. 283 .and Pushavatlii Viziram Gajapathy Raj Manna v. Pushavathi Vise.nvar, [1964J :! S.C.R. 403. D E F G (ii) In relation to Venkatagiri Zamindari the Madras Impartihle Estates Act has been repealed so 'far as the Act applied to the Estate which by opc""tion of s. 3 (b) of the Abolition Act got transferred and became vested in the State Government. In relation to properties which have not become so vesfed in the Government the Madras Impartiole Estates Act, 1904 continues to be in force. Since the Abolition Act did H not affect the plaint properties these have continued to be what they were at the time of incorporation with the Zamindari. namely. the properties retain their impartible character. The principle cossante rat.ione legi.'i • I- A B c D E VELUGOTI VT VELUGOTI (Ramaswami, I.) 89 -..•essat ipsa lex has no application in the present case for many times custom outlives the condition of things which give it birth. The iunior members of a joint family in the case of ancient impartible joint family estate, take no right in the property by birth and, therefore, have no right of partition having regard to the nature. of the estate which is impartible. [102 D-H, 103 H, 104 E-Fl Rai Kishore Singh v. Mst. Gahanabai, A.LR. 1919 P.C. 100, C. /. T. J>unjab v. Dewan Krishna Kishore, 68 I.A. 155 and Raja Velugoti v. Raja Rajeshwara Rao, 68 I.A. 181, (iii) The agreement of 1889 in so far as it relates to payment of main· tenance continues to be in force in spite of the. coming into operation of the Abolition Act. In the absence Of express words_ to the effect, it would not be right to attribute to the legislature an intention to free the properties not transferred to the Government by the operation of s. 3(b) of the Act from liability to contribute towards the maintenance of the junior members under such a contract or family arrangement. and while leaving the land-holder in possession of those other properties, Jimit the maintenance holders to a share of a fifth of the compensation amount. [109 CJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2113 of 1966. Appeal from the judgment and decree dated August 13, 1965 of the Madras High Court in 0.S.A. Nos. 40 and 53 of 1961. C. R. Pattabhiraman, V. Suresham and S. Balakrishnan, for the appellants. V. Vedantachari and K. Jayaram, for respondent No. I, The Judgment of the Court was delivered by Ramaswami, J, This appeal arises out of a suit O.S. 351 of 1952 filed for partition by 7 plaintiffs viz. : ( 1) Sri Raja Venkata F Kumara Krishna Yachendra, (2) Sri Rajah V. V. Ramakrishna, (3) Sri Raja V. V. Rajagopala Krishna, ( 4) Sri Raja V. V. Muvva Gopala Krishna, (5) Sri Raja V. Rajeswara Rao, (6) Sri Rajah V. Maheswara Rao and (7) Sri Raja V. Madana Gopala Krishna, minor by next friend and mother Smt. Sridevamma in respect of the Venkatagiri Estate and other properties as accretions to this G estate. The first defendant in the suit was the holder of the zamin, dari until it was notified and taken over by the State on September 7, 1949. The 3rd and 4th defendants are brothers of the first defendant. The third defendant died during the pendency of the suit and defendants 7 and 8 are his sons. Defendants 4, 5 and 6 are the sons of the 4th defendant. The 9th and 10th defendants H are the sons of the 1st defendant. The 4th plaintiff Shri Raja V. V. Muvva Gopala Krishna died during the pendency of the appeals against the suit in the High Court of Madras. After the filing of the petition of appeal in this Court Sri Raja V. Maheswara Rao, L6Sup. C.1./70-7 90 SUPREME COURT REPORTS [1970] 3 S.C.R. the 6th plaintiff also died. The relationship of the parties will appear from the following pedigree : Sri Raj,1h Velugoti Kum1ra yachendra Nayudu Bahadur Raj Raj"l~ gop1l1krishna (died in 1916) Raja Govinda Krishna (died in 1937) Raj1 V Sarva-sn• Kdo:hna (deft.) D·9 D-10 . . Muddu Venkatl Venu Ra~a Sesha~ha}a. Venkata Krishna Krishn3. Gopal Krishna pathi Ranga Lakshmana (died : : Rao Rao Rao issue- (adopted (adopted (adopted less in to to away) 1921) Pithapur) Bobbili) Krishna ------ Bahadur : (plff. 1) : V. V.Rama Krishna (plff. 2) Second Prine-~ D-7 Rajeswara Rao (Plff. 5) Maheswara Rao (pJff. 6) M.idana Gopala (Minor) by next friend and mother Sreedevi (Plff. 7) V. V. Raja GopaJakrishna (plff. No. 3) Third Prince . . . . . . V. V. Morva Gopalakri illegitimate sons. 'i:he High Court, however, took the view that the plaintiffs 5 and 6 were entiled to maintenance under the Hindu Law. The judgment of the High Court is reported i11 Maharaja of Venkatagiri v. Raja Rajeswara Rao('). The matter was taken in appeal to the Judicial Committee and the Judicial Committee allowed the appeal of the Rajah holding that the illegitimate sons of Venugopal were not entitled to maintenance either under the agreement of 18 8 9 or under the Hindu law. The decision of the Judicial Committee is reported in Raja Krishna Yachendra v. Raja Rajeswara Rao('). A B At the time of the notification of the estate under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 c (Act 26 of 1948) (hereinafter called the Abolition Act), the first defendant in the suit held! the estate and was the principal landholder under the Act. Under s. 66 of the Abolition Act, on and from the tilOtified date, the Madras lmpartible Estates Act, 1904 (Act 2 of 1904) shall be deemed to have been repealed in its application to the estate. Out of the advance compensation D first deposited, plaintiffs 1 to 4 had been paid a sum of Rs. 75,000/ • as maintenance holders under s. 45 of the Abolition Act. They were entitled under the Act to a further sum of Rs. 75,000/- in the second instalment of compensation and a share in such additional compensation that may be given. They were also given interim payments at Rs. 9,000/. per year under s. 50 of the Abolition Act. Under s. 4 7 of the Act they were also entitled to E ryotwari patta. The case of the plaintiff was that the Venkatagiri Estate became an il)lpartible estate only under the agreement of 1889 between the parties and became a statutory impartible estate by virtue of its .inclusion in the Schedule to the Madras Impartible Estate Act, 1904 and that on the repeal of that enactment by s. 66 of the Abolition Act the Estate became partible. The contention of the plaintiffs was that as junior members of a joint family they were entitled to a share in the compensation amount and also to a share in Schedule B properties which were not vested in the. State Government. So far as the claim to a share in the compensation amount is concerned, there were proceedings under the Abolition Act itself. The suit was principally confined to the claim for a share in the B Schedule properties and for an alternative claim for maintenance at Rs. 1,000/. p.m. So far as the B Schedule properties are concerned, the claim was conifined to shares in three items of immovable properties namely ( 1) Motimahal No. 187, Mount Road, Madras, (2) Venkatagiri Rajah's Bungalow at Nellore and (3) Venkatagiri Rajah's bun'galow at (1) l.L.R. [1939] Mad. 622~ (2) l.L.R. [1942] Mad. 419. F G H VELUGOTI v. VELUGOTI (Ramaswami, J.) 93 A Kalahasti. Out of the movable properties the claim was confined to sub-item 8 of item 8 of the B Schedule, that is, a golden howdah. It is ·the case of the plaintiffs that the repeal of the impartible Estates Act by virtue of the notification will have the effect of changing the character of the properti.es in the B Schedule and making them partible. It was contended ·that even if 8 for any reason the plaintiffs are not granted a share in the properties of the estate, they must be paid a sum of Rs, 1,000/- per mensem in terms of the original agreement of April 8, 1889. c D E F G H The trial Judge, Subramaniam J., held that the Venkatagiri Zamindari was impartible by custom even apart from the agreement of 1889 and the Impartible Estates Act of 1902 a[lld 1904. Even after the abolition of the Venkatagiri Estate the character of impartiability was found to continue in respect of B Schedule properties which formed part of the Zamindari. The learned Judge held that the plaintiffs 1 to 4 were not entitled to a share in the immovable properties of B schedule but were entitled to recover such sum as may be needed to make up the monthly allowance for their branch at Rs. 1,000/- p.m. after taking into consideration the amount which plaintiffs 1 to 4 were given under the Abolition Act. They were granted a charge for the amount on items 1, 14 and 16 of Plaint B Schedule. Plaintiffs 1 to 4 were also given a decree for one-third share sub-item 8 of item 8 of Schedule B properties, namely, the golden howdah. So far as plaintiffs 5 to 7 were concerned, they were held not entitled to any relief. The plaintiffs 1 to 7 preferred appeal, O.S.A. 53 of 1961 against the judgment of the trial Judge in O.S. 351 of 1952. The first defendant also filed OSA 40/61 against that portion of the judgment in 0.S. 351 of 1952 whereby the trial judge held that even after the notificatio,n of the Venkatagiri Estate under the Abolition Act and the payment of the compensation under that Act to plaintiffs 1 to 4 their claim for maintenance under the agreement of April 8, 1889 continued in force and that plaintiffs 1 to 4 were entitled to a payment of Rs. 1,000/- p.m. each after giving credit for payments made under the Abolition Act. Both the appeals O.S.A. 53 of 191 and O.S.A. 40 of 1961 were heard together and disposed of by a Division Bench consisting of Chandra Reddy, C.J. and Natesan, J., by a common judgment dated August 13, 1965. The Division Bench held that plaintiffs 1 to 4 having enjoyed the benefit of payment under s. 45 ( 5) of the Abolition Act and got capitalised by the Tribunal of their maintenance rights on the basis of the extinction of the Estate cannot mak~ a further claim as if the agreement of 1889 was a subsisting one and call upon the 1st defendant to make up for any deficiency from the properties that had 1oot vested in the Goyernment. The Division Bench also disallowed the olaim of plaintiffs 1 to 4 for a share ·in the value of the golden howdahs. It was 94 SUPREME COURT REPORTS [1970] 3 S.C.R. pointed out that silver, and the golden howdah were not treated as an impartible but were actually divided among the family members. Accordingly the Division Bench allowed the appeal O.S.A. 40 of 1961 filed by the 1st defend·?nt. In regard to C.S.A. 53 of 1961 the Division Bench held the claim that the Venkatagiri Estate was not an impartible estate by custom was devoid of merit. It was pointed out that before the Special Tribunal under the Abolition Act the plaintiffs had advanced the same contention but it was rejected. Plaintiffs 1 to 4 filed an appeal to this Court against the decision of the Special Tribunal. The decision of this Court is reported in Raja Muvva Gopalakrishna Yachendra and others v. Raja V. V. Sarvagana Krishna Y achendra and others('). Before this Court plaintiff I to 4 did not question the finding of the Special Tribunal that Venkatagiri Estate was an impartible Estate. On the other hand the contention advanced by the plaintiffs was that the Venkatagiri Estate was impartible by custom and that the impartibility continued under the Madras Impartible Estates Act but ceased when the estate vested in the St!tte Government. The Division Bench upon an examination of the evidence held that Venkatagiri Estate was an impartible estate by custom and was not made impartible for the first time under the agreement of 1889 or by Acts of 1902 or 1904. The claim for partition made by plaintiffs in respect of the B Schedule immovable properties was negatived. As regards the claim to maintenance made by plaintiffs 5 to 7 the Division Bench held that a similar claim had been rejected previously by the Judicial Committee as not tenable either under the Agreement of 1889 or under Hindu Law or on the basis of custom. In the result OSA 53 of 1961 filed by the plaintiffs was dismissed. OSA 40 of 1961 preferred by the !st de.fendant was allowed and·the suit was dismissed in its entirety. The first question to be considered in this appeal is whether the plaintiffs are entitled to claim a share in the three items of immovable properties of B Schedule already referred to. The argument on their behalf may be summarised as follows : Venkatagiri Estate admittedly an ancestral estate was not impartible by custom but for the first time by the agreement of 1889 the parties thereto agreed to hold it as an impartible estate. succession being governed by the law of primogeniture. The arrangement was brought about to preserve the integrity of the Estate and to preserve its past glory. By reason of the notification ot. the Estate under the Abolition Act and the vesting of the Estate in the Government the purpose for which the agreement was entered into was frustrated. The agreement of 1889 could therefore be no longer relied upon for preserving the impartible character of the Estate or what was left of it. The three items of immovable (l) [1963] Supp. 2 S.C.R. 280. A B c D E F G A B c D E F G ll VllLUGOTI V. VELUGOT! (Ramaswami, J.) 95 properties though outside the territorial limits of_ the Zamindari were held impartible only as appurtenant to the main Estate and, after the impartible character of the main estate was lost, these properties became partible. Even though the estate was treated as an impartible estate, it was an ancestral estate as there was joint ownership of the Estate in the family members. Plaintiffs 1 to 4, therefore, were entitled to one-third share of the properties of B Schedule which are not vested in the Government and plaintiffs 5 to 7 were entitled similarly to another one-third share. In {1ur opinion the contention of the plaintiffs 'that Venkatagiri Estate was not impartible by custom is untenable. The early history of the Zamindari is summarised in Gopa/krishna v. Sarvagna Krishna(') as follows : The estate of Venkatagiri has been in existence since Muhamadan times. . On the disruption of the Moghal Empire, it owed allegiance to the Nawabs of Arcot. In addition to the payment of peshkush they had to maintain an armed force for the assistance of Government in times of disorder or rebellion. As a result of the treaty between the East India Company on the one side and the Nawab of Arcot on the 0ther the Administration of that part of the country under the suzerainty of the latter was made over to the Brifoh. Under this treaty the Zamindary of Venkatagiri was recognised and the Rajah had to pay to the East India Company what he was paying before to the Muhammadan rulers. Sometime later, in accordance with the arrangement entered into between the Zamindars in Western Arcot and Lord Clive, the East India Company took over the responsibility for the preservation of law and order and the Zamindars were relieved of the task of maintaining armed forces and in its stead they undertook to pay an additional revenue on their estate, which was added to the peshkush. It was assured that the fixed peshkush would remain unalterable. In pursuance of this agreement, a sanad was granted in 1802 to the Zamindar of Venkatagiri and other Zamindars embodying the terms agreed upon. Ever since, successive Zamindars held the estate paying peshkush which has been invariable." The Estate is described in the official documents in the year 180 l as one of the Western palayama. It was observed by the Privy Council in Naragun) Lutchmeedavamah v.Vengama Naidoo('): (I) (1955) A.W.R. 590. (21 9 M.l.A. 66. 96 SUPREME COURT REPORTS [1970] 3 S.C.R. A Polliam is explained in Wilson's Glossary to be "a tract of country subject· to a petty Chieftain." In •- speaking of Polligars, he describes them as having been originally petty Chieftains occupying usuaJly tracts of hill or forest, subject to pay tribute and service to "the paramount State, but seldom paying either, and more or less independent, but as having, at present, since the subjugation of the country by the East India Company, subsidecl into peaceable landholders. This corresponds with the account read at the Bar from the Report of the Select tommittee on the affairs of India, in 1812. A Polliam is in the nature of a Raj; it may belong to an undivided family, but it is not the subject of partition; it can be held by only one member of the family at a time, who is styled the Polligar, the other members of 'the family being entitled to a maintenance or allowance out of the estate. The document of 1889 also negatives the case of the plaintiffs that the Estate was made impar\ible for the first time by that do.cument. The language of the document clearly shows that it only recognised the then subsisting impartible character of the Estate. In other words the document proceeds on the assumption that the Zamindari was made impartible by custom from the very beginning. The relevant portion of the Agreement of 1889 Ex, A-1 is to the foJlowing effect: "On the 18th April 1889, the Contract entered in writing by Raja Velugoti Rajagopala Krishna Yachandra Bahadur, Rajah of Venkatagiri, eldest son of Sri R:aja Velugoti Kumara Yachama Naidu and his three uterine brothers (1) Muddu Krishna, (2) Venkatakrishna. and ( 3) Minor Venugopala by his father and guardian Raja Velugoti Kumara Yachama Naidu is as follows : Out of the sons of the said Sri Raja Velugoti Kumara Y achama Naidu, excluding the three .... who, have been given in adoption .... while we remaining fpur brothers comprising the parties to this document are sons oi the said Raja V. Kumara Yachama Naidu and members of an undivided family; because the Venkatagiri Estate is impartible and subject to the law of Primogeniture our father Sri Raja V. Kumara Yachama Naidu, with the intention of his seeing, and approving of, the ruling of the estate by his eldest son the Raja Rajagopala Krishna, and with the intention of passing his time thereafter in future in the meditation of God, as means to attain to the world beyond, transferred qn the 28th October, 1878 to the eldest of us four ~\~ heir apparent to the estate, namely, the A B c D ' F G H A B c D E F G H VELUGOTI V. VELUGOTI (Ramaswami. /.) Raja Rajagopala Krishna, Raja of Venkatagiri, the Venkatagiri Zamindari, the immovable Properties relating thereto, the other immovable properties which were acquired by means of the income of the said Zamindari and all his ancestral and his, self acquired movable properties, excepting the nine lakhs and odd rupees and all the properties connected therewith including its accretions which he retained for his charitable expenses. Since, then, the aforesaid Raja Rajagopala Krishna Yachandra, Raja of Venkatagiri, has been ruling the estate ...... When the matters stood thus, on account of ill-feeling that arose between some of us, two of· us, namely Muddukrishna Yachendrulu and Venkata Krishna Yachendrulu, expressed the.desire that the said Venkatagiri Zamindari, the immovable properties connected therewith, the other immovable properties acquired by means of the income of the said Venkatagiri Zamindari and all the movable properties should be divided into four shares and their respective shares should be given to them. The Raja Rajagopalakrishna, Raja of Venkatagjri, becoming aware of this fact, contendect that the Venkatagiri Zamindari, the other immovable properties connected therewith, the other immovable properties which were acquired by his father out of the income of that Zamindari and transferred by him to him alongwith the estate and ancestral and sell acquired movable properties of his father which the latter transferred to him alongwith the estate, were impartible. "Thereupon, all of us brothers consulted about the afore-mentioned points of dispute, our father who is all-knowing and who has considerable experience. He considered it well and positively expressed his opinion that, regard to immovable property the Venkatagiri Zamindari was originally earned by our ancestors by rebson of valour in war, that it was an ancient Zamindari, that it was an impartible estate devolving along the eldest line of descendants, that it was permanently settled, that, whem Sannad Milikiyat Istimirar was granted to the ancestors, who was then the Zamindar of Venkatagiri, the peshkush for this Venkatagiri Estate was fixed with reference to the amount of expenses of the military troops and servants which ~e (our ancestor) was supplying and with reference to the money paid as tribute to the former Government, namely, Nawab, that therefore this Venkatagiri estate was not partible, that the immovable properties connected therewith, ·and other immovable properties acquired by means of the income of the said estate were also, of 97 98 SUPREME COURT REPORTS (1970] 3 S.C.R. course, impartible--that, in regard to movable property, hfa ancestral and self-acquired money in cash, the money consisting of deposits kept in the firms of Arbuthnot & Co., and Binny & Co., all the silver, gold and precious stones, jewels, which were on the 26th October, 1878 transferred along with the said Venkatagiri Estate to this eldest son, the Raja Rajagopala Krishna, Raja of Venkatagiri, together with the accretions thereto upto now should be divided equally among his four sons who are among the parties to this document-that such would be a just arrangement. In regard to our father's opinion about the immovable property, the three youngest of us brothers consulted their proper friends and in regard to our father's opinion about the aforementioned movable properties which were acquired by Raja Velugoti Kumara Yachama and transferred along with the Venkatagiri Estate, the eldest of these four brothers, .... consulted his proper friends. On account of the cogent reasons urged by the respective friends of these both parties, and for the reasons urged by the respective friends of these both parties, and for the reason that all family feuds would (thereby) end and compromise:! the opinions of one of the parties to this document, namely, Raja Velugoti Kumara Yachama Naidu. on the two points referred to above have been agreed in, as certainly correct and accepted, by the remaining parties, namely, we four brothers. Therefore, the parties to this document, namely, we four brothers, and our .father Raja Velugoti Kumara Y achama do now jointly and severally hereby determine, agree and affirm as follows : "All this Venkatagiri Estate is impartible descendible along the eldest line (of descent) ,of the said Estate, the immovab!e properties· connected therewith and the other immovable properties acquired by means of the income of the said estate silollld be enjoyed by A B c D E F the eldest of us four brothers and the heir of the aforeG said Raja Velugoti Kumara Yachama namely the aforesaid Velugoti Rajagopala Krishna and after him by his son. soi!l's son and so on in the eldest male line of descelll . ..... subject to the condition of paying allowances to other members of our family, suitably to their respective status out of the income from the estate H and the properties. And so we divide in the manner shown below all the money, silver, gold and precious stones, jewels and the accretions resulti!11g thereto upto A B c D E F G H VELUGOTI v. VELUGOTI (Ramaswami, !.) 99 this day which formed ancestral and self acquisition of our father. . . . . . along with the said estate ...... " Counsel for the plaintiffs has been unable to show any tenn in this Agreement to support his contention that it was only by virtue of that document that the parties agreed to call the Estate impartible. On the contrary the document indicates that there was clear recognition by the executants of the then character of the Estate as an impartible zamindari. We shall then deal with the inclusion of the Venkatagiri Zamindari in the lmpartible Estates Act passed by the Madras Legislature in 1902 and 1904. These Acts became necessary as a result of the ruling of the Privy Council in Sri Raja Rao Venkata Mahipati Rama Krishna Rao Bahadur v. The Court of Wards('). The decision of the Judicial Committee was given in 1889 and the Impartible Estates Act was passed in Madras in 1902 with a view to preserve the ancient zamindaris of the Madras Presidency. Referring to the Schedule to the Act the statement of objects and reasons explained that the schedule contained only Permanent Settlement E>tates in existence before the date of Permanent Settlement Regulations and which have been declared by the judicial decisions to be impartible or local!y considered by ancient custom to be so impartible and had in fact descended without partition since that date. The Impartible Estates Act, 1904 finally took the place of 1902 Act. The Estate of Venkatagiri has been included in the schedule annexed to both the Impartible Estates Acts. The obvious inference is that the Government had made enquiries and were satisfied that the Estates included in the schedule to Act 2 of 1904 were impartible and the inclusion of the Estates therein is a legislative determination that they were impartible. In Pushavathi Viziaram Gajapalhi Raj Manne v. Pushpavathi Visweswar Gajapathi Rai(') this Court observed: "Soon after these decisions were pronounced by the Privy Council, the Madras Legislature stepped in because those decisions very rudely disturbed the view held in Madras about the imitations on the powers of holders of impartible estates in the matter of making alienations of the said estates. That led to the passing of the Madras lmpartible- Estates Acts 1111902, II/ 1903 and Il/1904. The Legislature took the precaution of making necessary enquiries in regard to impartible estates within the State and made what the legislature thought were necessary provisions in respect of the terms and conditions on which the said estates were held." (I) I.LR. 22 Mad, 383, (2) [1964] 2 S.C.R. 'OJ. 100 SUPREME COURT REPORTS (1970] 3 s.c.a. In these circumstances we see no reason to differ from the finding of the High Court that the Estate of Venkatagiri was an ancient impartible Estate by custom and was not made impartible for the first time under the agreement of 18ls9 or by the Madras Acts_ of 1902 and 1904. The next question for determination is what is the effect of the Abolition Act on the rights and obligations of the members of the family in relation to the Venkatagiri Zamindari. According to the plaintiffs the property described in the B Schedule appended to the plaint did not vest under s. 3 ( b) of the Abolition Act. The properties in the B Schedule include a building in Mount Road, Madras a bungalow at Kalahasti and the District Judge's bungalow at Nellore Town. These buildings are si(uatea outside the territorial limits of the Venkatagiri Estate. Section 3(a) and (b) of the Abolition Act states : "3. With effect on and .from the notified date and save as otherwise expressly provided in this Act1 (a) [the Madras Estates] Land (Reduction of Rent) Act, 1947 (Madras Act XXX of 1947) 3 [in so far as it relates] to matters other than the reduction of rents and the collection of arrears of rent and the Madras Permanent Settlement Regulation, 1802 (Madras Regulation XXV of 1802), the Madras Estates Land Act, 1908 (Madras Act I of 1908), and all other enactments applicable to the estate as such shall be deemed to have been repealed in their application to the estate.] ( b) the entire estate (including all communal lands; porambokes; other non-ryoti lands; waste lands; pasture lands; Janka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances and the Madras Revenue Recovery Act, 1864, the Madras Irrig.ation Cess Act, 1865, and all other enactments applicable to ryotwari areas shall apply to the es'tate; , Section I ( 3), state : (3) It applies to all estates as defined in section 3, clause ( 2), of the Madras Estates Land Act, . 1908, A B c D E F G H A B c D E F G H VELUGOTI v. VELUGOTI (Ramaswami, J.) 101 except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, i936. Section 2 ( 3) defines "estate" to mean .... ( 3) "estate" means a Zamindari on an undertenure or an inam estate; Section 2 (16) defines "Zamindari" as follow> : ( 16) "zamindari estate" means- ( i) an estate within the meaning of section 3, clause ( 2) (a), of the Estates Land Act, after excluding therefrom every portion which is itself an estate under section 3, clause (2) (b) or (2)(e), of that Act; or (ii) an estate within the meaning of section 3, clause 2(b) or 2(c), of the Estates l.Jand Act, after excluding therefrom every portion which is itself an estate under section 3, clause (2 )( e), of that Act. Section 3 (2) of Estate Land Act (Madras Act I 1908) defined an "estate" to mean.: (a) any permanently-settled estate or temporarilysettled zamindari; (b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector; ( c) any unsettled palaiyan o: jagir; x x x x Section 2 ( 2) of the Madras lmpartible Estates Act, 1904 (Madras Act 2 of 1904) defines an "impartible estate" as an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India. In relation to the Venkatagiri Zarnindari the expression Estate in s: 3 (a) of the Abolition Act refers obviously to the Venkatagiri Estate which till then was subject to the operation of the Madras Pennanent Set!lement Regulation and the Madras Estates Lands ~~t. In relation to the Venkatagiri Zamindari s. 66 of the Aboht1on Act enacts 102 SUPREME COURT REPORTS [1970]3 S.C.R. that with effect from the notified date the Madras Impartible Estates Act, 1904 shall be deemed to have been repealed in its application to the Estate. The question arises whether the word "estate" in s. 66 of the Abolition Act denotes the zamindari consisting of properties which stood transferred to the Government under the Abolition Act and properties which are not so transferred, or whether the expression 'estate' refers to only the Venkatagiri Estate which until the notification issued under the Abolition Act took effect was the subject of the Permanent Settlement Regulation and the Madras Estates Land Act. The High Court has given sufficient reasons in suppo~t of its view that the word "estate" in s. 65 of the Abolition Act denotes only the estate Governed by the Permanent Settlement Regulation and the Estates Land Act and not any other part of the impartible zamindari. In other words the Abolition Act has no application to properties which are outside the territorial limits of the Venkatagiri Estate. The result, therefore, is that in relation to Venkatagiri ZaminJari the Madras Impartible Estates Act has been repealed so far as the Act applied to the Estate which by operation of s. 3 (b) of the Abolition Act has got transferred and became vested in the State Government. In relation to other properties which have not become so vested in the Govemment the Madras Imartible Estates Act ( 1904) continues to be in force. lt is the case of the plaintiffs that items 14, 15 and 16 of Schedule B did not vest in the Government under s. 3(b) of the Act. Item 14, 15 and 16 are Motimahal, Mount Rold Madras, the District Judge's Bungalr Nellore and Vengatagiri Raja's bungalow, Kalahasti. It is conceded on behalf of defendant No. l that items 14, 15 and 16 did not vest in the Government under s. 3 (b) o.f the Abolition Act. It is further claimed on behalf of the plaintiffs that items 14, 15 and 16 have become partible properties after the coming into force of the Abolition Act and plaintiffs should be granted their shares of these properties. The contention of the plaintiffs is that the Zamindari was made impartible by the agreement entered into by the brothers in 1889 and the properties which have not been taken over by the Government should be divided among the family members. We have already given reasons for the view that the Zamindari was impartible independently of the agreement c.f 1889 and that the agreement was no more than a conscious affirmation by the parties of what the position was previously in fact and in law. To put it differently the agreement of 1889 mer·~ly acknowledged and defined antecedent rights and antecedent obligations. It is therefore difficult to accept the contention of the plaintiffs that the three items of property in Schedule B have become partible properties. Since the Abolition Act did not affect these items the properties have continued to be whnt they were at the time of mcorporation with the zamindari, namely the properties retain their impartible character. A B c D E F G H A B c D E F G H VELUGOTI V. VELUGOTI (Ramaswami, J.) 103 We are also not impressed with the argument that as there was incorporation of the buildings with the original impartible estate the building ceased to have any impartible character when the impartibility of the parent estate was gone. It is trYe that the buildings which are outside the geographical limits of the Venkatagiri Zamindari cannot be brought within the definition of the Estate as defined in the Estates Lands Act and the Abolition Act cannot therefore be made applicable to such buildings. But the buildings have acquired the character of impartibility as a result of incorporation with the parent estate and that character cannot be lost unless the statute intervenes. Section 4 of the Impartible Estates Act itself contemplates parts of an Estate being impartible. In Pushavathi Viziaram Gajapathi Raj Manne v.