Mirza Raja Shri Pushavathi Viziaram... vs Shri Pushavathi Visweswar Gajapathi... on 19 March, 1963

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: 495/1949

Decision Date: 19 March, 1963

Coram: J.C. Shah, M. Hidayatullah, P.B. Gajendragadkar

In this case the Supreme Court of India recorded that the matter concerned a group of eight appeals which reached the Court on a certificate issued by the Andhra Pradesh High Court; the appeals concerned a partition suit originally filed by Viziaram Gajapathi Raj II, who appeared as the plaintiff, against his younger brother Visweswar Gajapathi Raj, who was identified as defendant No 1, along with the plaintiff’s mother Vidyavathi Devi as defendant No 2, his uncle Sir Vijayanand Gajapathi Raj as defendant No 3, and his grandmother Lalitha Kumari Devi as defendant No 4. All of the parties were members of the Vizianagram family, a family that owned a very large estate which was characterised as impartible and which devolved by the rule of primogeniture. The judgment noted that a genealogy of the family was set out at the end of the judgment, and that the genealogy clearly illustrated the relationship among the parties and showed at a glance the succession of different holders of the Vizianagram Estate over time. The Court explained that Narayana Gajapathi Raj could be regarded as the founder of the family, and that his son, who succeeded to the estate on the death of his father in 1845, could be described as the real maker of the fortunes of the family because he managed the estate from 1845 to 1879 and, during that period, purchased a large amount of movable and immovable property, including a substantial estate in and around Banaras. When this son died, he left behind his only son, Ananda Gajapathi Raj, and his daughter, Appala Kondayamba I, who later became the Maharani of Rewa. Ananda Gajapathi Raj died without issue on 23 May 1897; before his death he executed a will that bequeathed all his properties to his maternal uncle’s son Chitti Babu. Subsequently, on 18 December 1897, Ananda’s mother Alak Rajeswari I adopted Chitti Babu to her husband, thereby making Chitti Babu the adoptive brother of Ananda, who had already executed the will in his favour. The Court observed that Chitti Babu had been raised within the Vizianagram family and that the execution of Ananda’s will was based on the expectation that Chitti Babu would eventually be adopted by Alak Rajeswari I. Alak Rajeswari I died in 1901 after executing a will granting a life estate in her properties to her daughter the Maharani of Rewa, with the remainder to the children of Chitti Babu. On 28 October 1912 Chitti Babu executed a trust deed in favour of a trustee for the benefit of his minor son Alik Narayana, subject to the payment of maintenance to maintenance‑holders and to the payment of debts owed to his creditors. Finally, the Court recorded that the Maharani of Rewa died on 14 December 1912, but before her death she had executed a will bequeathing all of her properties to Chitti Babu for life, with the remainder to be shared equally between Alik Narayana and his younger brother Vijayananda Gajapathi Raj.

The will of the Maharani of Rewa gave the estate to Chitti Babu for his lifetime and provided that, after his death, the remainder of the property should be divided equally between his son Alak Narayana and Alak Narayana’s younger brother Vijayananda Gajapathi Raj. While Chitti Babu was still alive, the Madras Legislature enacted the Impartible Estate Acts of 1902, 1903 and 1904, and those statutes became operative during his lifetime. Chitti Babu died on 11 September 1922, and at the moment of his death his son Alak Narayana succeeded to the estate.

In the year 1935 the Vizianagram Estate together with the other properties owned by Alak Narayana were placed under the administration of the Court of Wards. This arrangement continued until the estates were transferred to Alak Narayana’s son, Viziaram Gajapathi Raj, who is the present plaintiff, in 1946. Alak Narayana himself had died earlier on 25 October 1937. During the period that the Court of Wards was managing the estates, Vijayananda Gajapathi Raj, who is identified as defendant No 3, filed a claim before the Court of Wards asserting his entitlement to one half of all the properties that had belonged to Chitti Babu, with the exception of the impartible estate. The Court of Wards referred the claim to Sir D’Arcy Reilly, a retired judge of the Madras High Court, for an enquiry. Sir D’Arcy conducted the enquiry and submitted his findings to the Court of Wards.

Subsequently the claim of defendant No 3 was settled by compromise. On 9 October 1944 the defendant executed a deed of release in favour of the plaintiff and of Visweswar Gajapathi Raj, who is identified as defendant No 1 and who at that time was represented by the Court of Wards. The deed stipulated that defendant No 3 would receive a payment of ten lakh rupees together with an additional amount of fifty‑four thousand one hundred ninety‑three rupees, and in consideration of that payment he would relinquish any and all claims to any share in the movable or immovable properties of Chitti Babu, including those properties that he had alleged were joint‑family assets. This settlement thereby resolved the dispute between the plaintiff and defendant No 2 on the one side and their uncle, defendant No 3, on the other side in an amicable manner.

In 1948 the Madras Legislature enacted the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act 26 of 1948), hereinafter referred to as “the Act”. Pursuant to the substantive provisions of the Act, a notification was published in August 1949 indicating that the Vizianagram Estate would be taken over by the State effective 7 September 1949. Anticipating that the State’s acquisition of the estate might give rise to further disputes among the parties, the plaintiff filed suit number 495/1949 in the High Court of Madras seeking a partition of the joint‑family properties. In that suit the plaintiff asserted that a large number of immovable properties and a substantial quantity of jewellery were impartible, whereas the remaining movable and immovable assets were partible. The High Court of Madras issued a preliminary decree of partition on 11 September 1950, declaring that the plaintiff, defendant No 1 and defendant No 2 were each entitled to one‑third share in the partible properties of the joint family of which they were members, together with the deceased Alak Narayana.

The preliminary decree declared that, following the death of Alak Narayana, the plaintiff, defendant No 1 and defendant No 2 each held a one‑third interest in the partible assets of the joint family of which they were members. At that time the law excluded defendant No 2 from any interest in the family’s agricultural lands, so that the remaining agricultural property was divided equally between the plaintiff and defendant No 1, each receiving one‑half of that portion. After the decree was issued the parties were required to submit detailed lists of the assets they claimed. The submissions showed that the suit encompassed one hundred six distinct immovable parcels as well as approximately five hundred eighty‑one pieces of jewellery. The plaintiff asserted that, in addition to the lands originally granted to the ancestors of the parties by the Sanad, a number of immovable estates that had later been acquired had been lawfully incorporated into the original estate by the then holder. Consequently, the plaintiff maintained that those later‑acquired lands, together with the original estate, should be treated as impartible and therefore not subject to division. In the same vein the plaintiff contended that one hundred forty‑one of the jewellery items were items of regalia belonging to the Zamindar and were likewise impartible. The defendants, both No 1 and No 2, denied these assertions, creating a dispute that raised both factual and legal questions concerning the nature of the properties and the applicability of the principle of impartibility.

Subsequently defendant No 4 entered the litigation by filing application No 4830/1950. In that application she claimed that a portion of the items listed in the Toshakhana and included in the suit were her “stridhan”, and therefore could not be allotted to the plaintiff or to defendants No 1 and No 2 in the partition. Defendant No 4 asserted entitlement to ninety‑five pieces of jewellery, furnishing a list that was divided into two appendices: Appendix A comprised seventy‑six ornaments that she said had been presented to her by her husband, while Appendix B listed nineteen ornaments that she claimed had been given to her by her parents. In parallel, defendant No 2 put forward a claim that fifty‑five pieces of jewellery formed her “stridhan”. The plaintiff, on the other hand, sought to exclude one hundred forty pieces of jewellery on the ground that those items constituted the Zamindar’s regalia and were therefore impartible. On the basis of these pleadings the trial judge framed fifteen issues that required resolution before a final decree could be issued. All parties primarily relied upon documentary evidence to support their positions; except for defendant No 4, none of the parties called any witnesses. Defendant No 4, however, was examined on commission and gave oral evidence in support of her “stridhan” claim. The trial judge concluded that the estate had been impartible by custom during the tenure of Viziaram Gajapathi and Ananda Gajapathi, and that those owners possessed the authority to incorporate subsequently acquired immovable properties into the estate. The judge further observed that when the estate became impartible under Act II of 1904, the provisions of that Act extended to all accretions to the estate that had been incorporated prior to 1897.

The trial judge examined the issue of whether any of the properties acquired after the original estate had been incorporated into the zamindari as a matter of fact, and he placed upon the plaintiff the burden of proving such incorporation. He concluded that any portion of the impartible zamindari of Vizianagram that existed before the date specified in the statute, including lands and buildings that had been merged with the zamindari, fell under the provisions of that statute. Accordingly, the division of land was to be governed by sections twelve and forty‑seven of the Act, while buildings that had been incorporated prior to the Act were to vest in the plaintiff after the notified date and were not to be divided. After recording his findings on the various questions, the trial judge issued a final decree. While the full text of the decree is not reproduced, the essential allocations to the parties are summarized. Regarding the plaintiff’s allegation that one hundred and forty jewels were part of the regalia, the judge accepted only thirty‑six of those jewels. The accepted items were numbered 1 to 19, 23, 24, 26, 27, 46, 56, 57, 79, 80, 108, 116, 124, 125, 126, 127 and 128 of Appendix A. An inadvertent inclusion of item 25 was later acknowledged as an error. Concerning the plaintiff’s claim that later‑acquired properties had been incorporated into the estate, the judge upheld the plaintiff’s claim concerning the Prince of Wales Market at Vizianagram, permanent lease‑hold rights over nine villages, and the Admirality House at Madras together with Waltair House and Elk House at Ooty.

Defendant No. 4 obtained a partial decree in her favour for fifteen jewels she claimed, identified as items 20, 45, 49, 54, 186, 203, 230, 348, 349, two gold anklets listed as items 364 and 535, and items 136, 138, 141 and 297, as per the list prepared by Mr. Sathianathan (Exhibit P‑157). It is admitted that this list mistakenly contained three items from Appendix B that had been filed by Defendant No. 4. Since Defendant No. 4 had previously conceded Defendant No. 2’s right to all ornaments in Appendix B, the inclusion of those three items was erroneous. Consequently, Defendant No. 4’s claim is to be regarded as valid for only twelve jewels under the trial court’s decree. The decree gave rise to four separate appeals: the plaintiff filed appeal No. 34/1955, Defendant No. 1 filed appeal No. 3/1955, Defendant No. 2 filed appeal No. 129/1954, and Defendant No. 4 filed appeal No. 131/1954. The record shows that the last of these appeals was permitted to be withdrawn.

Defendant No. 4 was allowed to file cross‑objections against the plaintiff’s claim concerning the distribution of the estate. All of the original appeals were subsequently transferred to the High Court of Andhra because, following the reorganisation of Andhra State, the High Court of Andhra Pradesh acquired jurisdiction over the matters raised in those appeals. Before the High Court, the parties presented the same factual and legal questions that had been argued before the trial Court and each side renewed its respective claims. The High Court affirmed that the trial Court had correctly concluded that the Prince of Wales Market and the permanent lease‑hold rights over nine villages formed part of the impartible estate. The High Court also agreed with the trial Court’s rejection of the plaintiff’s contention that the bungalow at Ootacamund called ‘Shoreham’ and the bungalow at Coonoor called ‘Highlands’ were incorporated into the estate and therefore impartible. However, the High Court differed from the trial Court regarding three other bungalows—Admirality House, Waltair House and Elk House—finding that the plaintiff had not produced sufficient proof that those properties were incorporated in the impartible estate. Consequently, the High Court held that those three bungalows, unlike ‘Shoreham’ and ‘Highlands’, were partible between the plaintiff and defendants No. 1 and No. 2, so the plaintiff’s claim to them failed before the appellate court. Regarding the jewels, the Appeal Court added items 129 and 360 to the thirty‑six items already identified by the trial Court, declaring that thirty‑eight jewels constituted the zamindar’s regalia and affirming the plaintiff’s claim to them. The Court of Appeal examined the evidence presented by defendant No. 4 and found her testimony unreliable, leading the court to set aside the trial Court’s decree that had been issued in her favour. As a result, the plaintiff together with defendants No. 1 and No. 2 achieved only partial success before the Court of Appeal, whereas defendant No. 4 suffered a total loss of her case. The appellate decision gave rise to a new group of eight civil appeals: numbers 170 and 171 of 1961 filed by the plaintiff; numbers 172 and 173 of 1961 filed by defendant No. 1; numbers 174 and 175 of 1961 filed by defendant No. 2; and numbers 176 and 177 of 1961 filed by defendant No. 4. In the plaintiff’s appeals, he maintains that the Appeal Court should have recognized his claim that five buildings located outside the limits of Vizianagram Zamindari—Admirality House, Waltair House, Elk House, Little Shoreham and the Highlands—are impartible. He also argues that the Appeal Court should have granted his claim to one hundred and two jewels that he asserts form part of the regalia.

Regarding the claim that certain jewels formed part of the regalia, counsel for the plaintiff indicated before the tribunal that the claim would be limited to eighty‑three jewels and that, even on that limited basis, the plaintiff did not pursue the matter further. Consequently, the plaintiff’s case was essentially confined to the five house properties previously identified. In their respective appeals, defendants numbered one and two challenged the correctness of the lower courts’ determinations that the Prince of Wales Market constituted an impartible estate and that the permanent lease‑hold rights over nine villages were likewise non‑partible. They also argued that the lower courts erred in holding that any jewels could be regarded as regalia of the Zamindar and therefore impartible, asserting that none of the thirty‑eight jewels should have been treated as impartible. Defendant number four asserted that the Court of Appeal erred in overturning the trial court’s decisions, particularly because the trial court’s favorable conclusions for her were principally based on the assessment of her oral testimony. This brief description encapsulated the nature of the dispute presented by the group of eight appeals. Before addressing the dispute between the plaintiff and defendants one and two, it was deemed appropriate to consider the claim of defendant number four, who was identified as the widow of Chitti Babu and the grandmother of both the plaintiff and defendant one. The parties agreed before the tribunal that the claim granted to her by the trial court should be affirmed, subject to a modification excluding the items listed in Appendix B that were conceded by her in favour of defendant two; thus, her claim would be limited to the twelve items enumerated in List A of the trial court’s decree. This concession was offered unconditionally by the plaintiff and defendant two and conditionally by defendant one. Counsel for defendant one stated that his client consented to the restoration of the decree in favour of defendant four, provided that defendant four permitted him to take a one‑quarter share of the jewels allocated to her under this compromise. Counsel explained that this arrangement could be effected by having the jewels constituting defendant four’s share valued by qualified valuers, after which defendant one would be given the option to select jewels whose aggregate value amounted to one‑quarter of the total value of defendant four’s share. In the event that a precise one‑quarter valuation could not be achieved mathematically, the parties agreed that any shortfall or surplus could be settled by a cash payment from one party to the other as deemed necessary. Counsel for defendant four expressly accepted this condition. Accordingly, by mutual consent, the order issued by the Court of Appeal was set aside and the decree originally granted by the trial court in favour of defendant four was restored, subject to the modifications and conditions just described.

The decree was restored, subject to the modifications and conditions just specified, and the compromise arrangement therefore disposed of defendant No. 4’s appeals numbered 176 and 177 of 1961. The Court then turned to the remaining dispute between the plaintiff and defendants No. 1 and No. 2. In order to resolve that dispute, the Court found it necessary to examine several points of law that had been argued before it. The first point required analysis concerned the nature of an impartible estate such as that held by the Vizianagram family. The Court noted that, following the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi ((1932) L.R. 99 I.A. 331.), it is well‑settled that an estate that is impartible by custom cannot be treated as the separate or exclusive property of the individual who holds it. When the holder has acquired the estate as an ancestral estate and has succeeded to it by primogeniture, the estate becomes part of the joint estate of the undivided Hindu family. The Court referred to the illuminating judgment delivered by Sir Dinshah Mulla for the Board, in which the relevant earlier decisions were carefully examined and the legal position was clearly articulated. For an ordinary joint family property, the Court explained that the members of the family may claim four distinct rights: the right of partition; the right to restrain alienations by the head of the family except where necessary; the right of maintenance; and the right of survivorship. Because an impartible estate, by its very nature, cannot be partitioned, the first right does not exist in such a context. The second right is also incompatible with the custom of impartibility, as the Privy Council held in Rani Sartaj Kuari v. Deoraj Kuari ((1888) L.R. 15 I.A. 51: 10 All. 272.) and as was affirmed in the First Pittapur case, Venkata Surya v. Court of Wards ((1889) L.R. 26 I.A. 83: 22 Mad. 383.). Likewise, the right of maintenance as a matter of right does not apply, a principle laid down in the Second Pittapur case, Ram Rao v. Raja of Pittapur ((1918) L.R. 45 I.A. 148: 41 Mad. 778.). The fourth right, namely the right of survivorship, however, remains viable, and it is on the basis of this right that an impartible estate, in the eyes of law, must be regarded as joint family property. The Court emphasized that the right of survivorship, which may be claimed by the members of the undivided family owning the impartible estate, should not be conflated with a mere spes successionis; unlike a spes successionis, the right of survivorship can be renounced or surrendered. Finally, the Court observed that, as also follows from the decision in Shiba Prasad Singh’s case ((1932) L.R. 59 I.A. 331.), unless the power to exclude is expressly provided by statute or custom, the holder of a customary impartible estate may, by a clear declaration of intention, incorporate self‑acquired immovable property into the estate, causing the incorporated property to become part of the estate itself.

In this passage the Court explained that an impartible estate carried with it all attendant incidents, and that those incidents ordinarily included a customary rule of descent by primogeniture. The Court noted, however, that the situation could differ when the estate had been granted by the Crown on the condition that it descend by primogeniture. The Court then referred to the observations of Sir Dinshah Mulla, who had pointed out that the question of incorporation had been considered in numerous decisions of the Board and in various Indian High Courts, yet none of those decisions had ever challenged the competence of a holder to incorporate property. Accordingly, the Court held that incorporation was fundamentally a matter of intention, and that only when evidence was produced showing that the holder intended to merge the newly acquired property with the impartible estate could an inference of incorporation be drawn. The decisive test, the Court emphasized, was always the intention of the parties, which could be established either by their conduct or by other forms of proof. The Court further observed that the result of incorporation operated in a fashion opposite to the result that occurred when a person blended self‑acquired property into the joint‑family property of which he was a coparcener. In the latter scenario, the separate property lost its distinct character, merged into the joint‑family mass, and thereafter its succession was governed by the rule of survivorship rather than by the ordinary law of inheritance. By contrast, when a holder of an impartible estate acquired additional property and chose to incorporate it, that property became part of the impartible estate, ceased to be divisible, and acquired the same status of being impartible. In both circumstances, the Court stressed, the essential inquiry was the presence of intention, and whenever intention was proven, the Court would infer either blending or incorporation as the facts required. The Court then turned to the argument presented before the Privy Council in the case of Shiba Prasad Singh, which contended that allowing the doctrine of incorporation would enable a holder of an impartible estate to prescribe a customary succession rule that departed from ordinary law. The Court rejected that contention, citing the principle that under Hindu law a clear proof of usage, even if it was merely a family usage, outweighed the written text of the law, as demonstrated in Collector of Madura v. Mootoo Ramalinga Sathupathy. Sir Dinshah Mulla was quoted as observing that the power to incorporate was an inherent power of every Hindu owner and applied equally to a customary impartible raj unless specifically excluded by statute or custom. The Court acknowledged that the considerations relevant to immovable property did not extend to movable property, and therefore the theory of incorporation could not be applied to movable assets. Nevertheless, the Court clarified that this limitation did not prevent a family custom from treating certain categories of movable property as impartible, and that if such a custom were proved in the manner required for family customs, the Court would recognise it.

The Court observed that when a family seeks to treat a particular class of movable property as impartible, the existence of such a custom must be proved. Once the required proof is established, the custom will be recognized. This principle reflects the general rule of Hindu law concerning impartible property, a rule that had been clearly set out in the decision of Shiba Prasad Singh. The judgment then turned to another important facet of the issue. Before the Privy Council’s ruling in Rani Sartaj Kuari v. Deoraj Kuari (1888 L.R. 15 I.A. 51 : 10 All. 272), it was commonly assumed that a holder of an ancestral impartible estate could not transfer or mortgage the estate beyond his lifetime in a manner that would bind the coparceners, unless the transfer was for the benefit of the family as a whole and not solely for the holder’s personal advantage. This view arose because many impartible estates had been granted on military tenure, and unrestricted alienations would have defeated the purpose of those grants. In 1888 the Privy Council altered this understanding in the Rani Sartaj Kuari case (1889 L.R. 26 I.A. 83, 22 Mad. 383). In that case the estate holder had given seventeen villages of his estate to his junior wife, a gift that his son later challenged. The Privy Council rejected the son’s claim, holding that where Mitakshara law applied and the custom of primogeniture existed, the eldest son did not automatically become a co‑sharer with his father; therefore the estate’s inalienability depended on a custom that had to be proved, or in some instances on the nature of the tenure itself. The same principle was reaffirmed by the Privy Council in the First Pittapur case (1889 L.R. 26 I.A. 83, 22 Mad. 383). Consequently, the Court concluded that, after these authorities, it is settled law that a holder of an impartible estate may alienate the estate by an inter vivos gift or even by testament, despite the family remaining undivided. The only restrictions on such a power arise from a proven family custom to the contrary or from a specific condition of the tenure that operates in the same way.

Following the issuance of the Privy Council decisions, the Madras Legislature intervened because the rulings substantially disrupted the prevailing view in Madras regarding the limits on the powers of holders of impartible estates to alienate those estates. In response, the Legislature enacted the Madras Impartible Estates Acts of 1902, 1903 and 1904. The legislative body first conducted thorough inquiries concerning the nature and extent of impartible estates throughout the State, and then incorporated, in its judgment, provisions that it deemed necessary to regulate the terms and conditions under which such estates were to be held. It may be stated at this juncture that the statutory provisions introduced by these Acts expressly addressed the question of inalienability, thereby superseding reliance on family custom and establishing clear legislative guidance on the matter.

The Court observed that, according to the operative provisions of the Madras statutes, the issue of whether an impartible estate may be alienated in Madras did not rest on any family custom. Instead, the statutes themselves expressly set out the rule on inalienability. The Court further noted that it had already pointed out that the doctrine of incorporation was inapplicable to movable property. In that regard, the Court explained that a class of movables could be treated as impartible only if a family custom establishing such a classification was proved. The Court stated that the law concerning the proof of customs was settled. It quoted the Privy Council’s ruling in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (14 Moo. I.A. 570), which held that for special usages that alter the ordinary law of succession to be recognized, they must be ancient, unchanging, and supported by clear and unambiguous evidence. Such evidence was necessary for the courts to be confident of the custom’s existence and to determine that it satisfied the requirements of antiquity and certainty that gave it legal force.

The Court explained that the same principle must be applied when dealing with a family custom, although it acknowledged that evidence supporting a family custom might be less abundant or frequent than that supporting a custom of a territory, a community, or a particular type of estate. In assessing family customs, the Court said that the consensus of opinion among family members, the traditional beliefs they held and acted upon, their statements, and their conduct were all relevant factors. It further clarified that a specific family custom pleaded in a case would be deemed proved only when the Court found the evidence of such character to be sufficient, citing Abdul Hussain Khan v. Bibi Sona Daro ((1917) L.R. 45 I.A. 10) as authority for that standard. Having outlined these principles, the Court indicated that it would now examine the opposing arguments presented in the appeals before it.

Regarding the submissions made on behalf of defendants 1 and 2, the Court recorded that they contended that the provisions of Act II of 1904 limited the notion of an impartible estate to those properties specifically covered by the Sanad. The Sanad, which had been entered into the record as Exhibit P‑77 and dated 21 October 1803, confirmed the original grant of 1,160 villages to the ancestor of the parties. The defendants argued that any property acquired subsequently by the Zamindari estate’s holders from their own savings could not be classified as impartible. The Court noted that it had already reviewed the origins of the Madras Act II of 1904 and referred to Section 2(2) of that Act, which defined an “impartible estate” as an estate descendible to a single heir.

Section 2(3) of the 1904 Act defined a “Proprietor of an impartible estate” as the person who possessed the estate as a single heir according to the special custom of the family or locality where the estate lay, and if no such family or local custom existed, then according to the general custom governing succession to impartible estates throughout Southern India.

Section 3, which was the principal provision of the Act, stipulated that every estate listed in the Schedule would be deemed an impartible estate. Section 4(1) then imposed restrictions on the alienation of such impartible estates, while Section 4(2) set out the circumstances under which alienations were permissible. The Court noted that it was not concerned with the remaining provisions of the Act for the purpose of this discussion.

The Schedule attached to the Act enumerated the zamindari estates district by district. Counsel for the respondents, Mr Setalvad, argued that the Vizianagram estate was shown under two different districts only to indicate that the Schedule covered solely the property granted by the original Sanad, and therefore only that property fell within the ambit of Section 3. He further contended that any later acquisitions made by the estate holders could not be treated as impartible because such acquisitions lay outside the Vizianagram estate as described in the Schedule.

The Court was not persuaded by this line of argument. It observed that the representation of the Vizianagram estate under two districts was clearly a matter of administrative convenience and did not limit the geographical scope of the estate. The Court found no doubt that, after appropriate enquiries, the legislature had become satisfied that certain estates in the Madras State were impartible and was therefore eager to declare their impartibility and to prescribe restrictions on their alienation, a step prompted by the earlier decisions of the Privy Council which had already been referenced.

Consequently, the Court concluded that the Vizianagram estate listed in the Schedule must be understood to include the entire body of impartible property that formed the estate, not merely the parcels described in the original Sanad. The Court further explained that the customary law principle of incorporation, which had operated after the Sanad was issued and before the 1904 Act was enacted, allowed any subsequently acquired property that had been incorporated by the zamindar into the impartible estate to become an integral part of that estate. Such incorporated property would therefore be covered by the Schedule to the Act.

The Court held that determining whether any particular piece of land that was not part of the original Sanad but later acquired had been incorporated was a factual issue that required examination on its own merits. It warned that it would be erroneous to argue that even if certain immovable properties had been incorporated before the Act came into force, they would nonetheless be excluded from the estate as described in the Schedule and consequently fall outside the operation of the Act.

Thus, the Court rejected the proposition that the effect of the Act was to prevent the plaintiff from claiming that subsequently acquired properties had been incorporated into the impartible estate.

In this case the Court observed that the contention that the provisions of the 1904 Act were intended to prevent the plaintiff from asserting that properties acquired after the issuance of the Sanad had been incorporated could not be sustained. The next issue, vigorously raised by counsel, concerned the status of certain buildings that had been found to have been incorporated into the impartible estate. Counsel argued that, because of the provisions of section 18(4) of the Act, defendants one and two were entitled to claim a share in those buildings to which that provision applied. To resolve that point the Court found it necessary to refer to the definitions contained in section 2 of the Act together with other relevant provisions. Before undertaking that analysis the Court set out the language of section 18. Section 18(1) deals with buildings situated within the limits of an estate that, immediately before the notified date, belonged to any landholder of that estate and were being used by that landholder as an office for the purpose of administering the estate and for no other purpose; it provides that such buildings shall vest in the Government, free of all encumbrances, with effect from the notified date. Section 18(2) deals with buildings that belonged to any such landholder and that, in whole or in the principal part, were then occupied by a religious, educational or charitable institution; it likewise provides that those buildings shall vest in the Government, free of all encumbrances, from the same date. The Court noted that the proviso attached to subsection (2) was not material to the present question. Section 18(3) addresses buildings that fell within either clause (i) or clause (ii) on 1 July 1947 but that had subsequently been sold, otherwise transferred, or had ceased to be used for the purposes described in clauses (i) and (ii) during the period between 1 July 1947 and the notified date; it provides that the value of such buildings shall be assessed by the Tribunal in the manner prescribed and that the Tribunal shall pay that assessed value to the Government out of the compensation deposited in its office under section 41, sub‑section (1). The Court then turned to section 18(4), which was the provision relied upon by counsel. Section 18(4) reads: “Every building other than a building referred to in sub‑sections (1), (2) and (3) shall, with effect on and from the notified date, vest in the person who owned it immediately before that date; but the Government shall be entitled: (i) in every case, to levy the appropriate assessment thereon; and (ii) in the case of a building which vests in a person other than a landholder, also to the payments which such person was liable immediately before the notified date to make to any landholder in respect thereof, whether periodically or not and whether by way of rent or otherwise, in so far as such payments may accrue due on or after the notified date.” The Court observed that it was undisputed that the buildings about which the present argument was made fell within the scope of section 18(4). Counsel suggested that, because the wording of section 18(4) speaks of “the person who owned it immediately before that date” rather than “landholder”, the owners of those buildings included the members of the plaintiff’s family, and therefore the defendants could claim a share. He further relied on the Privy Council decision in Shiba Prasad Singh’s case, which described an impartible estate as joint‑family property governed by the rule of survivorship, implying that the family members were, in a theoretical sense, owners of the property immediately before the notified date. Counsel also emphasized that the omission of the term “landholder” in section 18(4) was intended to extend protection to a broader class of persons beyond the landholder.

In this case, counsel argued that section 18(4) caused the vesting of a building in the person who owned it immediately before the notified date, and that the expression therefore included the members of the plaintiff’s family. He relied on the Privy Council decision in Shiba Prasad Singh’s case, which held that an impartible estate is joint‑family property whose devolution follows the rule of survivorship, making the family members theoretical owners of the property. The counsel further asserted that the family members’ right to succeed to the property was not a specific right of succession, or “spes successionis,” and consequently they could claim to be persons who owned the property together with the plaintiff at the relevant date. To support this position, he pointed out that sections 18(1) and 18(2) expressly refer to a “landholder,” whereas section 18(4) uses the wording “the person who owned the property,” and he suggested that this omission was intended to broaden the class of persons who could benefit beyond the strict definition of landholder. At first glance, this line of reasoning appeared attractive; however, a close examination of the statutory definitions revealed that the phrase “the person who owned” was limited to the landholder alone. Section 2(8) defined a landholder to include a joint Hindu family that collected the rents of the whole estate or any part thereof, and also a darmila inamdar; section 2(12) defined a “principal landholder” as the person who held the estate immediately before the notified date. Considering these definitions, it became clear that the joint Hindu family comprising the plaintiff and defendants 1 and 2 could not claim the benefit of section 18(4). The expression was intended to refer to the landholder or proprietor as defined in the earlier 1904 Act. Moreover, section 18(4)(ii) specified that where a building vested in a person other than a landholder, the provision applied only if the person identified in section 18(4) was a landholder, confirming that no other class of persons was contemplated. Although the legislature might have deliberately chosen the wording in section 18(4), the change in terminology did not, in the Court’s view, expand the class of beneficiaries. Additionally, section 43 of the Act dealt with the apportionment of compensation for certain impartible estates, and the persons eligible to claim such apportionment were restricted by sections 45(2)(a) and ( b). If the construction proposed by counsel were accepted, it would lead to an anomalous result wherein a broader class of persons could claim benefits under section 18(4) while a narrower class could claim compensation under section 45, a result that the Court found inconsistent with legislative intent.

The Court observed that if section 18(4) were given a wide construction, the result would be anomalous because the right to claim an apportionment of compensation is limited by section 45 to a relatively narrow class of persons. Section 18(4), taken in that broad sense, would enable a far larger group of individuals to claim its benefit, a disparity that could not plausibly reflect the legislative intention. Consequently the Court agreed with the lower courts that defendants 1 and 2 could not rely on section 18(4) to obtain relief. Having settled that point, the Court proceeded to examine whether the appellate court had correctly addressed the issues raised by the parties concerning the incorporation of certain buildings into the impartible estate. In order to resolve this, the Court first considered the pleas put forward by defendants 1 and 2. The counsel for those defendants argued that the lower courts were mistaken in holding that the Prince of Wales Market constructed at Vizianagram formed part of the impartible estate.

The market in question had been built by Vijayaram Gajapathi in the year 1876 on land that was undisputedly owned by the estate. According to a report submitted by Mr Sathianathan, after returning from Banaras and assuming charge of the estate from the District Collector, Vijayaram Gajapathi embarked on a program to improve the town. Roads were laid, drinking‑water wells and tanks were erected, and hospitals, schools and colleges were opened. Recognising the need for a proper place of trade, he completed the construction of the market in 1876. The market was organised into four distinct compartments: a grain market, a timber market, a cattle market and a fish market. The Municipal Council gave its approval for the opening of this new market and directed that all existing markets be transferred to the Prince of Wales Market. Evidence showed that the municipality was entrusted with the management of the market and that its operations were carried out under municipal supervision. In the lower courts, the plaintiff relied on several facts to demonstrate that Vijayaram Gajapathi had incorporated the market into the impartible estate. It was highlighted that the municipality communicated with the Zamindari holders at every stage, that the income from the market appeared in the Ayan accounts, that a clear distinction was maintained between Ayan (estate) accounts and family accounts, that the market was treated as a single administrative unit for management and fee collection, that the Government also regarded the property as belonging to the Samsthanam, that Mr Sathianathan’s report affirmed the property’s belonging to the Samsthanam, that the building was erected to commemorate the Prince of Wales’s visit to India in 1875, and that its purpose was to provide a public amenity for the town of Vizianagram, the estate’s headquarters; further, during the period when the Court of Wards...

During the time that the Court of Wards managed the estate, the management treated the market property as forming part of the impartible estate, and, on the whole, the pattern of conduct indicated that the property was consistently regarded as belonging to that estate. Counsel for the petitioner clearly disputed several reasons offered by the Appellate Court to support its conclusion that the Prince of Wales Market had been incorporated into the impartible estate. It can be admitted that some of the reasons set out in the appellate judgment were not conclusive. Nevertheless, two considerations guided the Court in addressing this issue in the present appeals. The first consideration was that the determination of whether a particular immovable asset is incorporated into the impartible estate is ultimately a factual question, the decisive test being the intention of the owner, and both the trial Court and the Appellate Court agreed that the market must be held as incorporated in the impartible estate. In addition, two material facts concerning the market could not be ignored. The market was constructed on land that was plainly acknowledged as belonging to the estate, and it was built to provide a public amenity for the people of Vizianagram. It is unlikely that Vijayaram Gajapathi, when he erected the market in 1876, regarded it as a profit‑making enterprise; rather, he must have viewed it as a civic project undertaken in his capacity as a zamindar responsible for the welfare of Vizianagram’s inhabitants, and therefore intended that it form part of the impartible estate at the moment of its construction. This reasoning corresponds to the view expressed by the lower courts, and the Court saw no reason to disturb that conclusion.

The other property matters challenged by counsel for the petitioner related to permanent leasehold rights over nine villages, identified as item number thirty‑one in issue number three as framed by the trial Court. The villages named are Thummapala, Annamrajupeta, Kottavalasa, Abmativalasa, Jammu, Duvvam, Chintapallipeta, Seripeta, Manesam Sudha and Sujjangivalasa. These villages are held under a permanent Mustajari lease by Mr Venkata Reddi. Both the trial Court and the Appellate Court found that Mr Reddi was merely a nominee of the Vizianagram Samsthanam and that the leasehold interest represented an addition to the estate. In this Court’s opinion, that conclusion is plainly correct because a straightforward recital of the relevant facts leading to Mr Reddi’s acquisition of the leasehold rights sufficiently demonstrates the point. The nine villages originally formed part of the properties granted to the family by the Sanad. It appears that, sometime before 1850, these villages were sold to meet arrears of peishchush and were purchased by the Zamindar of Bobbili. Subsequent proceedings concerning those villages were then dealt with as described in the record.

In the matter before the Court, the purchaser of the villages had instituted a suit seeking to establish his rights over those villages. The Government intervened and facilitated an amicable settlement between the two Zamindars concerned. The settlement, recorded as Exhibit P‑112, stipulated among other things that the villages should be granted on a permanent Mustajari lease to Mr Venkata Reddi and that the Zamindar of Vizianagram should furnish a guarantee letter in favour of the Agent covering the amount payable by the lessee. In compliance with this term, the Raja of Vizianagram sent a letter to the Agent dated 10 January 1857. The purchaser, the Raja of Bobbili, also addressed a letter to the Agent indicating his consent to withdraw the suit, and consequently the lease was executed. Under the terms of the lease, the annual bill‑mukta was fixed at Rs 22,568. Subsequent correspondence relating to the transaction demonstrates that the Raja of Vizianagram regarded the leasehold interest as his own and took an active interest in the matter. It appears that it would have been considered disrespectful to the dignity of the Vizianagram Raja to accept a lease from the Raja of Bobbili. A trust deed executed by Chittibabu in 1912 further confirms that Chittibabu recognised the lease‑hold rights as forming part of the impartible estate, and the behaviour of the trustee who later managed the estate supports the same conclusion. Later, a portion of two of the villages was acquired by the Government for the construction of a railway crossing between the village of Alamanda and the town of Vizianagram. The compensation proceedings clearly identified the two rival claimants for compensation as the Raja of Bobbili and the Raja of Vizianagram, and the dispute was resolved on the basis that the lands had reverted to the Vizianagram Samsthanam subject to the annual charge of Rs 22,568. It is undisputed that all of these villages are surrounded by other estate villages and that officials, in their correspondence, have consistently treated the lease‑hold rights as part of the estate. These facts, taken together, indicate that the lower courts were correct in accepting the plaintiff’s position that the villages constitute a portion of the impartible estate.

The next issue raised before the Court, on behalf of the defendants by counsel for Mr Setalvad and counsel for Mr Sastri, concerned the decision of the Court of Appeal that thirty‑eight jewels could be deemed regalia and therefore impartible between the plaintiff and defendants 1 and 2. It was reminded that the trial Court had upheld the plaintiff’s claim in respect of thirty‑six jewels, while the Court of Appeal had added two further jewels to that list. The defendants objected strongly to this addition and questioned the correctness of the appellate finding. In challenging the appellate determination, Mr Setalvad argued that it is inappropriate to describe any jewels as regalia in connection with the Vizianagram family because the family was not a ruling family, and consequently there could be no occasion for a coronation or related ceremonial honours. This argument formed the basis of the defendants’ contention that the appellate conclusion should be set aside.

In this case, it was argued that the Vizianagram family could not be described as a ruling family, and therefore there was no occasion for a coronation; consequently the claim that certain jewels constituted regalia was urged to be rejected, especially after the abolition of the zamindari estate by the 1948 Act. The original Sanad (Ext. P‑77) granted to the ancestors was clearly a grant for military service, yet it was not evident that, as zamindars, the family had never exercised power that might be described as that of a ruler. Historical evidence showed that in the first half of the nineteenth century the Saranjamdars and Zamindars who received grants from reigning monarchs regarded themselves as petty chieftains or rulers and attempted to exercise authority over the villages allotted to them. Evidence further indicated that an installation ceremony had been held in 1922 and that another ceremony was celebrated in 1947 after the plaintiff attained majority, demonstrating that such ceremonial occasions continued well into the twentieth century. Besides installation, there were other ceremonial occasions on which jewels described as regalia could be worn by the holder of the zamindari and his wife. The argument that the abolition of the zamindari estate automatically terminated the customary impartibility of those jewels ignored the principle that custom often outlives the conditions that gave rise to it. As Lord Atkinson observed in the opinion of the Board in Rai Kishore Singh v. Mst Gahenabai (A.I.R. (1919) P.C. 100), “it is difficult to see why a family should not similarly agree expressly or impliedly to continue to observe a custom necessitated by the condition of things existing in primitive times after that condition had completely altered.” Accordingly, the maxim “cessat ratio cessat lex” did not apply where a custom survived the original circumstances, and the contention that there was no justification for regalia in early times, or that any justification ceased after the abolition of the zamindari estates, could not be upheld. The principal challenge to the Court of Appeal’s finding, however, was based on the premise that Chittibabu had taken the whole estate as a devisee under the will executed by Ananda Gajapathi Raj, rather than as an adopted son of Vijayaram Gajapathi Raj. It had been noted that Ananda Gajapathi had executed a will on 23 July 1896 bequeathing his entire property to Chittibabu, and that Chittibabu was subsequently adopted on 18 December 1897. In other words, the will of Ananda Gajapathi became operative on 23 May 1897 when he died, and the argument was that Chittibabu had already become a devisee before his adoption by Alak Rajeswari.

In the matter before the Court, it was observed that the property conveyed by the will of Ananda Gajapathi had already vested in Chittibabu as a devisee legatee. Consequently, even if certain jewels of the Vizianagram family had historically been treated as impartible by family custom, that custom ceased to operate once the property passed to Chittibabu, and the estate entered his possession free of any such burden. The parties highlighted that both lower courts had proceeded to trial on this basis, and they urged the Court to recognize that, once the significance of this vested interest was fully appreciated, proving the existence of a custom imposing impartibility on the jewels would become exceedingly difficult. The submissions further argued that the lower courts had not examined this aspect of the dispute. Additionally, it was contended that Chittibabu remained a minor until 1911 and that, even after attaining majority, the estate appeared to be substantially controlled by the Maharani of Rewa, who acted as a major creditor of the estate. The argument relied on a statement in one of Chittibabu’s letters indicating that he had never seen the family jewels. The parties suggested that the Court would require strong evidence to support the plea that Chittibabu and his successors had, by their conduct, produced satisfactory proof of an impartibility custom sufficient to justify the plaintiff’s claim over thirty‑eight jewels. They further maintained that, if at the time Chittababu acquired the estate under Ananda Gajapathi’s will the jewels were not subject to any family custom of impartibility, it would be necessary to establish that such a custom arose after the acquisition, a point they asserted had not been successfully proved in the present case.

On the other hand, the Court noted that, although it was technically correct to view Chittababu as having received the property as a devisee under the will of Ananda Gajapathi, the factual circumstances could not be ignored. Chittababu had been raised within the Vizianagram family and had been formally adopted shortly after Ananda Gajapathi’s death. When Chittababu faced a challenge to his title in suit number 18 of 1903, he defended his claim by establishing his adoption, and the subsequent compromise decree in appeal number 114 of 1909, dated 12 March 1913, recorded the plaintiffs’ explicit acknowledgment of the validity and binding nature of his adoption by Maharani Alak Rajeswari to her husband. This sequence demonstrated that, when Chittababu took possession of the property and sought to confirm his title, he relied more prominently upon his adoption than upon the testamentary grant executed in his favor. Consequently, the Court regarded the adoption as the principal foundation of Chittababu’s title, while recognizing that the circumstances surrounding the execution of the will and the subsequent adoption together shaped his legal position.

In this case the Court considered the circumstances surrounding Chittibabu’s adoption and the resulting attitude of the parties. From childhood Chittibadu had been raised by Alak Rajeswari, and Ananda Gajapathi had expected that Alak Rajeswari would adopt him because Ananda Gajapathi had lost his wife and had no male heir. The deed of adoption executed by Alak Rajeswari demonstrated that Chittibadu was treated as a member of the family from the beginning. Consequently, after Chittibadu entered the family as an adopted son, every member of the family accepted that the lineage continued without interruption, and both Chittibadu and the Maharani of Rewa, together with all others, regarded the property as belonging to the Vizianagram family and held by the adopted member of that family. Even as a matter of technical law the adoption would be deemed to relate back to the date of the death of his adoptive father, thereby avoiding any break in the continuity of the line. Nevertheless, the Court held that beyond this technical point it was necessary to examine the attitude and conduct of the parties at the relevant time, because the issue concerned the existence of a family custom. The defence put forward by defendants one and two assumed that, before the death of Ananda Gajapathi, there existed a family custom that designated certain jewels as the regalia of the Zamindar. If that assumption were correct, it would be difficult to accept the defence’s suggestion that the death of Ananda Gajapathi terminated the earlier custom and that the arrival of Chittibadu as an adopted son fundamentally altered the continuation of that custom. Chittibadu was promoted to the rank of major in 1911, married, had children, and the family expanded thereafter. Throughout this period, the parties did not treat Chittibadu as a stranger who entered the family solely because of the will executed in his favour by Ananda Gajapathi; rather, they regarded him as the adopted son of Vijayaram Gajapathi who perpetuated the line and possessed the property in accordance with all the family traditions and customs. The Court acknowledged that, in order to sustain the plaintiff’s claim regarding the thirty‑eight jewels, it must be satisfied that evidence exists concerning the conduct of the parties after Chittibadu’s adoption. The plaintiff had produced evidence of the parties’ conduct after 1897, and that evidence appeared satisfactory and convincing. The Court found that it could not be said that such evidence lost its effect merely because the plaintiff argued that Chittibadu had obtained the estate as a devisee rather than as an adopted son. Ultimately, the Court concluded that, for the purpose of proving a family custom, the decisive factor was not the formal technicalities of law but the clear evidence of conduct that showed the parties intended to maintain the established custom.

Chittibabu entered the family through adoption and, in effect, received the estate as an adopted son; consequently, the lower courts were correct in not giving excessive weight to the will executed by Ananda Gajapathi in Chittibabu’s favour. The next issue was whether the evidence presented by the plaintiff was adequate to establish the custom claimed in relation to the thirty‑eight jewels. While a portion of that evidence dated from before 1897, the most crucial material concerned events occurring after 1897. The principal document relied upon by the plaintiff was the will of Ananda Gajapathi himself (Exhibit P‑6). In that testament, Ananda Gajapathi bequeathed all his movable and immovable property to Chittibabu, subject only to the other liabilities that the will enumerated. When describing the properties, the testator referred both to the movable and immovable property of the Samsthanam and to his personal assets, together with all associated rights, titles, privileges, honours and insignia of the family. Notably, the properties of the Samsthanam that were identified as impartible were described as both movable and immovable, a description that indicates the testator’s acknowledgement of a family custom whereby certain movable items were regarded as impartible because they formed part of the Samsthanam’s estate. The deed of adoption (Exhibit P‑7) set out the material facts leading to Chittibabu’s adoption and also cited the authority that the adoptive mother’s husband had conferred on her to make an adoption when necessary. The adoptive mother, Alak Rajeswari, executed a will on 15 January 1898 (Exhibit P‑9) in which she left her properties to her daughter for life, with the remainder to Chittibabu, whom she had raised from birth within her family, and to whom her son Ananda Gajapathi had already bequeathed all his properties. Subsequently, on 14 December 1911, the Maharani of Rewa executed a will (Exhibit P‑10) that was of great importance to the plaintiff’s case. By that will, the Maharani bequeathed all of her properties to Chittibabu. Paragraphs 5 and 6 of the will were especially relevant. Paragraph 5 stated that the Vizianagram Samsthanam owed the Maharani a sum of approximately seventeen lakh rupees, of which nine lakh represented loans she had advanced to the Samsthanam and eight lakh constituted a portion of a legacy due to her under the will of her deceased brother, which she too had loaned to the Samsthanam. She further described her own jewellery as considerable, consisting of pieces received from her father, mother, brother and husband as well as items she had purchased herself. Regarding the state jewellery in her possession, she listed items such as the Sarpesh Nakshatra Joth, the Jayamala, the Emeralds Bhjuaband, the Diamond Bhjuaband, and an emerald‑and‑pearl necklace set in a central pendant on which her mother’s name was inscribed in several languages. She declared that these pieces formed an integral, impartible and inalienable part of the Samsthanam. Paragraph 6 imposed a condition that her movable and immovable properties, subject to the legacies and directions contained in the will, were to be bequeathed to Chittibabu Vizia Ramaraju, Rajah of Vizianagram, for his lifetime only, on the condition that he complied with the provisions of the will and refrained from alienating the state jewellery and certain specified jewels, namely a necklace of emeralds and diamonds and diamond‑and‑gold bangles that she desired to be preserved together with the state jewels. These provisions demonstrate that the Maharani, who was a creditor of the Samsthanam for a substantial sum of seventeen lakh rupees, took a keen interest in the proper management of the Samsthanam’s assets and maintained a cordial relationship with the Samsthanam and, in particular, with Chittibabu. Paragraph 5 further reveals that, as security for the loan she had extended to the Samsthanam, certain jewels had been kept in her possession, out of which

The will stated that the regalia and heirlooms belonging to the Vizianagram family passed together with the estate and formed part of the inheritance. In the sixth clause of the will the Maharani declared that she bequeathed all of her movable and immovable property, subject to the various legacies and directions contained in the will, to Chittibabu Vizia Ramaraju, Rajah of Vizianagram, for his lifetime only. This bequest was conditioned upon his strict observance of the provisions of the will and upon his agreement not to alienate any of the State jewellery. The Maharani further required that he keep intact the following personal jewels: a necklace of emeralds and diamonds and a set of diamond‑and‑gold bangles that she herself had used, to be preserved together with the State jewels.

These paragraphs demonstrated that the Maharani, who acted as a creditor of the Samsthanam for a sum of approximately seventeen lakh rupees, was deeply interested in the proper management of the Samsthanam’s properties. Her relationship with the Samsthanam and, in particular, with Chittibabu was described as very cordial. Paragraph five revealed that, as security for the loan she had advanced, certain jewels were kept in her possession. Of these jewels she identified five as constituting State Regalia: Sarpesh Nakshatra Joth, Jayamala, an emerald bujuaband, a diamond bujuaband, and an emerald‑and‑pearl necklace whose central pendant bore her mother’s name in several languages. While the first of these five jewels had not been identified, the remaining four had been identified and the Maharani described them as integral, impartible, and inalienable parts of the Samsthanam. Paragraph six imposed an explicit obligation on Chittibabu not to alienate the aforementioned State jewellery and also not to alienate the two personal jewels she had specifically listed.

At the time the will was executed there was no pending dispute concerning the existence of any State jewellery, and the Maharani’s relations with Chittibabu were harmonious. The declaration that certain jewels formed part of the State jewellery was therefore not made for any ulterior motive; rather, it reflected a genuine statement by a person who possessed considerable knowledge of family traditions and who was actively overseeing the administration of the estate. Both courts below accepted this statement as a factual basis for concluding that, even after Chittibabu’s adoption, the family’s tradition and custom of treating certain jewels as impartible continued to be observed. Paragraph thirty‑one referred to a deed of trust executed by Chittibabu on October twenty‑eighth, nineteen‑twelve, which merely acknowledged the existence of two distinct categories of property: one belonging to the Zamindari, which was impartible, and another that was partible.

The Court later referred to this document when addressing the points raised by the plaintiff in his appeals. The next important evidence supporting the plaintiff’s case arose from the conduct of the third defendant when he filed a claim for partition before the Court of Wards. In the statement of claims filed by the third defendant, he expressly acknowledged that certain jewellery was treated as State regalia. That admission carries considerable weight. The third defendant, being the junior member of his generation, was seeking his share of the estate, and because the property involved was of very large value, it is unreasonable to assume that he made his claim without legal advice. Yet, even after presumably consulting counsel, he specifically admitted that particular jewels, by long‑standing family custom, were regarded as State Regalia and therefore were not subject to division. It is already on record that the third defendant received payment of more than ten lakh rupees in satisfaction of all his claims, and subsequently executed a deed of relinquishment in favour of the plaintiff and the first defendant. During the administration of the estate, the Court of Wards carried out a survey of the Vizianagram estate jewellery in 1946 (exhibit P‑160). In connection with that survey the Court of Wards issued instructions highlighting the existence of ceremonial jewellery and recommending that such jewellery be reduced to the minimum truly required for future ceremonies in accordance with modern standards. While the survey was being conducted, the second defendant contended that jewellery intended to be worn on various occasions by the ladies, men or boys of the family formed part of the impartible estate and was thus described as belonging to the holder of that estate. The survey report further demonstrated that the ornaments claimed to be regalia and intended for ceremonial use were actually stored together with the kiritam and its pattam, both of which are undeniably ceremonial items. Accordingly, the Court is satisfied that, on the whole, the lower courts were correct in concluding that both before 1897 and after the adoption of Chittibabu in 1897, the family consistently treated certain ceremonial jewels as part of the regalia belonging to the holder of the Zamindari estate. That observation naturally raises the question of the identity of those jewels. The findings recorded by the Court of Appeal in this matter rest principally on two documents. The first is the will executed by the Maharani of Rewa, and the second is an entry in a list of jewels prepared by Mr. Fowler and signed by Mr. V. T. Krishnamachari and the fourth defendant. The Maharani of Rewa’s will refers to five jewels constituting the regalia of the Zamindari Estate. The list signed by Krishnamachari and the fourth defendant shows that, on the occasion of the installation ceremony of Alak Narayana Gajapathi held on 29 September 1922, ornaments numbered one through nineteen were taken out for use.

In the record, the entry concerning the jewels began with the words “Taken out for the installation ceremony on the 29th September,” after which the detailed list of the ornaments followed. Both the lower courts affirmed that this entry demonstrated that the jewels and articles enumerated in the list were regarded as regalia and were intended for use on ceremonial occasions. Relying on that list together with the will of the Maharani of Rewa, the Court of Appeal reached the view that the thirty‑eight jewels claimed by the plaintiff should be considered regalia and therefore were not subject to partition. Before this Court it was submitted that the documents did not reveal when the ornaments mentioned in the Maharani’s will or in Krishanamachari’s list had been purchased, and it was argued that, unless it could be shown that the ornaments had been bought long before the years 1911 or 1922, it would be difficult to attribute to them the quality of impartibility. The Court found this line of argument unconvincing. It held that the family’s custom could well be that ornaments deemed essential for particular ceremonial events—such as an installation ceremony or any other auspicious family function—were treated as impartible, and that the custom did not necessarily require the items to have been purchased many years earlier or to have enjoyed a prolonged period of ceremonial use. The observations of the lower courts were noted, particularly the description of most of the ornaments as possessing a character that made them necessary for ceremonial occasions. The Court also observed that it was not improbable that the articles taken out on 29 September 1922 had been stored together as a separate group.

The judgment further pointed out that certain items listed, specifically serial numbers 7, 10 and 11, were presently regarded as belonging to defendant No. 2, and a similar observation applied to ornament No. 5 described in paragraph 5 of the Maharani’s will. Nevertheless, the Court emphasized that even when ornaments were treated as regalia and thus impartible, the holder of the estate retained the right to gift such ornaments to other members of the family. For example, if an ornament mentioned in paragraph 5 of the Maharani’s will had been gifted to a daughter‑in‑law, that fact would not automatically invalidate the recital in the will that the same ornament formed part of the Zamindar’s regalia. While acknowledging that the evidence concerning the precise identity of the jewels that could be safely classified as regalia in the present case was not as thorough as it might have been, the Court expressed reluctance to disturb the Court of Appeal’s conclusion. In the Court’s opinion, the evidence sufficiently established that a family custom existed even after the adoption of Chitti Babu, a custom that regarded certain ceremonial jewels as regalia and therefore impartible.

In this case, the Court observed that the custom within the family treated certain jewels and ornaments as regalia, meaning they were regarded as impartible property. Determining which specific items among those jewels were considered impartible by custom was a pure question of fact. Regarding thirty‑six of the thirty‑eight jewels, both the trial Court and the Court of Appeal had concurrently ruled against defendants one and two and in favour of the plaintiff. The two jewels that had been added to the list by the Court of Appeal, identified as items 129 and 360, were decided on the basis that the recital in the will of the Maharani of Rewa should not have been rejected by the trial Court merely because there was no corroborating evidence. After reviewing the material, the Court concluded that there was no sufficient ground to interfere with the findings of the Court of Appeal, and therefore the appeals filed by defendants one and two were dismissed. The Court then turned to the plaintiff’s appeals. In those appeals, counsel had limited the argument to five bungalows that were owned by the family but lay outside the limits of the Vizianagram Zamindari. The trial Court had held that three of those five bungalows had been incorporated into the impartible estate, whereas the Court of Appeal disagreed on that point. For the remaining two bungalows, both courts had found against the plaintiff. The Admirality House had been purchased in 1891 by Ananda Gajapathi for twenty thousand rupees, and additional plots forming part of that property had been acquired later. The bungalow at Waltair had been bought in 1861 by Vijayaram Gajapathi for seven thousand rupees. Elk House at Ootacamund had been bought in 1889 for sixty thousand rupees, Shorham at Ooty in 1892 for eighteen thousand rupees, and the Highlands at Coonoor in 1896 for seventy‑five thousand rupees. The Court of Appeal held that the evidence of conduct concerning all these bungalows was wholly ambiguous and that no significant circumstance could be identified from which the plaintiff’s theory of incorporation could be reliably inferred. Although the bungalows were certainly constructed outside the Zamindari Estate, they were located in places of importance such as the estate’s headquarters, district headquarters, or hill stations. It was possible that the Zamindar had used these bungalows according to his convenience, but there was no suggestion that junior members of the family did not reside with him, and consequently the pattern of use did not support the plaintiff’s claim of incorporation. The trial Court had previously ruled in favour of the plaintiff regarding Admirality House, Waltair House and Elk House, but the Court of Appeal pointed out that those conclusions were based more on presumptions than on reliable evidence. In fact, the trial Court had observed that the desire of the Zamindar to own a residence at each of those three places was understandable, especially when considered in light of the prevailing attitudes among Zamindars of that class at the end of the nineteenth century.

The Court observed that it was reasonable to presume that the Zamindar owned a residence at each of the three specified locations, especially when the matter was examined in the context of the prevailing attitudes among zamindars of that class toward the end of the nineteenth century. It further added that it should be possible to link the Zamindar’s residence with the use of the building for zamindari purposes, and that satisfaction of this test would establish incorporation. While addressing the issue on that basis, the trial Court did not deem it necessary to require the plaintiff to produce evidence that zamindari business had been conducted in any of the buildings. The trial Court concluded that the record contained no evidence of any contrary intention on the part of Ananda Gajapathi or his successors, although the intention of the successors was not considered highly material. The Court found that the trial judge’s method of placing part of the evidential burden on the defendants was erroneous. Consequently, the Court was not inclined to disturb the Court of Appeal’s finding concerning the three bungalows. Regarding the two remaining bungalows, both lower courts had reached identical findings against the plaintiff, and the Court saw no basis to permit the plaintiff to challenge those findings on the evidence before it. Counsel for the plaintiff, Mr. Pathak, responded to this difficulty by relying mainly on the construction of the deed of trust executed by Chitti Babu. He argued that the deed demonstrated Chitti Babu’s intention to incorporate the buildings into the zamindari estate. To advance this contention, Mr. Pathak assumed that the properties referred to in the deed were Chitti Babu’s separate properties, because they had devolved on him under the will of Ananda Gajapathi. He acknowledged that if the properties were ancestral holdings belonging to Chitti Babu, then Chitti Babu could not effect any incorporation with respect to them. The Court noted that this same counsel had earlier, in the dispute over the impartibility of thirty‑eight jewels, been forced to contend that although the will of Ananda Gajapathi legally bequeathed all of Chitti Babu’s properties, in fact Chitti Babu had received them as an adopted son rather than as a devisee under the will. That issue had already been addressed. The Court reiterated that point to underscore that the plaintiff’s present stance—seeking incorporation of the buildings into the impartible estate on the basis of the trust deed—was inconsistent with the position adopted in the earlier jewellery dispute.

In this case the Court examined the trust deed that was presented by the parties and concluded that the deed did not support the theory of incorporation that Mr Pathak advanced. According to the deed, the settlor had named Mr John Charles Hill Fowler as trustee and had directed that the trustee manage the estate on behalf of the settlor’s minor eldest son, Alak Narayana Gajapathi. The Court held that, in order to address Mr Pathak’s argument, it was unnecessary to analyse the entire scheme of the document; it was sufficient to refer to the two specific clauses on which Mr Pathak relied. The first clause, appearing in the preamble, recorded the settlor’s statement that he was seized of, possessed of, or entitled to, as an estate of inheritance, the whole impartible estate and zamindari that would descend to a single heir according to the law and custom of primogeniture that applied to similar estates in Southern India. The preamble further identified the estate as the Vizianagram Zamindari or Samsthanam, as described in the First Schedule, and also mentioned various other properties situated in the specified presidencies. In plain terms, the preamble was understood to refer to the entire property consisting of the impartible estate together with other properties, and that description would encompass the houses that were the subject of the present dispute. The second clause set out the settlor’s intention to settle the mentioned properties in trust for the benefit of his eldest son, so that the son might obtain the same kind and nature of estate right and interest in the Zamindari, its accretions, appurtenances and the other settled properties as he would have received if the property had now devolved upon him by right of inheritance under the stated law and custom of primogeniture. The clause expressly qualified this benefit by providing that the son would be subject to the payment of maintenance and other allowances to the Raja and certain other family members, as well as to the payment of all the settlor’s creditors as later described in the deed. Mr Pathak argued that by creating this trust in favour of his minor eldest son, the settlor had incorporated all non‑impartible immovable properties into the Zamindari, subject only to the liabilities spelled out in the deed. He further relied on a provision in paragraph 2 of the deed that listed items of property excluded from the deed’s operation, contending that the buildings in question were not among the excluded items and therefore must be deemed incorporated by Chitti Babu with the impartible estate. The Court was not persuaded by this argument. In evaluating the effect of the argument, the Court recalled that around the same time Chitti Babu had been required to defend his title in suit No 18 of 1903, where four respondents challenged his claim. In that litigation Chitti Babu had asserted his title primarily as an adopted son rather than as a devisee under the will of Ananda Gajapathi. If that characterization was correct, Chitti Babu was claiming the properties in his capacity as an adopted son, and consequently the properties that had come to him as ancestral holdings could not be incorporated by him with the impartible Zamindari estate.

It was observed that property which had passed to Chitti Badu as ancestral property could not be merged by him with the impartible Zamindari estate. The clause relied upon by the plaintiff was examined and it clearly indicated the intention of Chitti Badu when he executed the trust document. The document declared that the properties were settled on the trustee for the benefit of his minor eldest son in the same manner as the son would have acquired them if they had devolved upon him by survivorship. This formulation meant that Chitti Badu did not intend to grant the son a larger estate than the one he would have obtained by survivorship at the time of Chitti Badu’s death. It was evident that, had the son obtained the estate by survivorship, he would have received the impartible Zamindari estate as a whole, while the other properties, which had not yet been incorporated into the Zamindari estate, would have continued to be partible. The deed of trust was therefore intended to produce the same result. Consequently, the argument that the trust deed demonstrated that the buildings in dispute had been incorporated by Chitti Badu with the impartible Zamindari estate could not be sustained.

As a result, the plaintiff’s appeals were dismissed. In addition, three petitions filed in this Court—C.M.P. Nos. 740/1962, 741/1962 and 1821/1962—seeking permission to adduce further evidence were also dismissed. No order was made on C.M.P. No. 1822/1962, while C.M.P. No. 2631/1962 was partly allowed. Through that petition, Defendant No. 1 sought to raise additional grounds that required reference before the appeals could be finally disposed of. Counsel for the defendant drew the Court’s attention to certain properties that remained unresolved and to specific inaccuracies in the judgment under appeal that needed correction.

Concerning the first inaccuracy, the Appeal Court had remarked that it was contended on behalf of the Rajkumar that Exhibit P‑132 could not be treated as a definitive list of buildings owned by the Samsthanam because, allegedly, even the Vizianagram Fort and its adjoining structures—though admitted to belong to the estate—were omitted. Counsel pointed out that the statement identifying the Vizianagram Fort as unquestionably part of the estate was erroneous. The character of the Vizianagram Fort was, in fact, the subject of pending proceedings before the Subordinate Judge at Vishakhapatnam in Original Suit No. 120 of 1948. In that suit, Defendant No. 1 claimed that the Fort was not an impartible property but belonged to the joint family, entitling him to a one‑third share. Counsel for the plaintiff conceded that the reference to the Fort in the appellate judgment was mistaken and should be treated as such, directing that the matter be tried between the parties in accordance with the law in Original Suit No. 120 of 1948.

In this matter, the Court noted that the dispute concerning the home farm lands required clarification. Both lower courts had referred the issue to the appropriate Tribunal for determination under sections twelve and forty‑seven of the governing Act. The petitioner’s counsel argued, and the Court agreed, that by referring the question to the Tribunal, the lower courts had not decided which specific parcels of property constituted, or did not constitute, home farm lands. Consequently, the determination of which items were home farm lands remained an open question between the parties and might have to be finally decided on the merits whenever the issue arose in future proceedings.

The Court also addressed a further point raised concerning the trial Court’s statement about items listed under issue number four. The trial Court had asserted that items numbered thirty‑three (b) and ninety‑eight were not identifiable at all. Counsel for the petitioner pointed out that this description was inaccurate with respect to item thirty‑three (b). He drew the Court’s attention to the fact that his client had actively filed a claim before the Receiver for item thirty‑three (b), identified as Daba Gardens and Bungalow. The opposing counsel conceded this correction. Additionally, the petitioner’s counsel requested that the Court clarify that, for any property included in the suit for which the lower courts had not rendered a specific finding, either party retained the right to approach the Court and have the matter adjudicated, allowing the Court to consider the competing contentions of the parties. This clarification was not contested by the other side.

Finally, the Court issued its cost order. Considering the circumstances of the case, the Court directed that each party should bear its own costs in this proceeding. The Court then recorded a series of names, dates of birth and death, and relational designations pertaining to the parties involved. These included Narayana Gajapathi Raj (deceased 1845), Sir Vijayarama Gajapathi Raj I (deceased 1879), Alak Rajeswari (deceased 1901), Sir Ananda Appala Kondayamba I, Chittibabu Viziaram Raj Gajapathi Raj, Maharani of Rewa (born 27‑8‑1893, deceased 11‑9‑1922), and several others with their respective lifespans and relationships, such as Lalitha Kumari Devi (defendant No. 4), Alak Narayana, Sir Vijayananda Gajapathi, Alak Gajapathi Raj (born 25‑12‑1905, deceased 25‑10‑1937), Vidyavathi Devi (defendant No. 2), and Appalakonda‑Viziaram Gajapathi Jaya Devi Visweswara Yamba II, Raj II (born 1‑5‑1924). The list continued with further family members connected to the plaintiff and the various defendants, capturing the lineage and dates relevant to the parties in the suit.