MIRZA RAJA SHRI PUSHAVATHIVIZIARAM GAJAPATHI RAJMANNE SULTAN vs. SHRI PUSHAVATHI VISWESWARGAJAPATHI RAJ and ORS.
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Civil Appeals Nos. 170-177 of 1961
Decision Date: 19 March 1963
Coram: P.B. Gajendragadkar, J.C. Shah
In the matter titled Mirza Raja Shri Pushavathiviziaram versus Shri Pushavathi Visweswargajapathi, the judgment was rendered on 19 March 1963 by the Supreme Court of India. The opinion was authored by Justice P B Gajendragadkar, who was joined on the bench by Justice J C Shah. The parties are identified as the petitioner Mirza Raja Shri Pushavathiviziaram Gajapathi Rajmane Sultan and the respondents Shri Pushavathi Visweswargajapathi Raj together with other respondents. The citation for this decision appears in the 1964 All India Reporter at page 118 and in the 1964 Supreme Court Reports (Second Series) at page 403. Further citator references include reports from 1970, 1975, 1981, 1982, 1988, and 1991, indicating the case’s continuing relevance. The legal subject matter involves Hindu law relating to a joint Hindu family, the partition of an impartible estate, the rule of incorporation, and the application of both immovable and movable property provisions. The case also discusses statutory provisions of the Madras Impartible Estate Acts of 1902, 1903 and 1904, as well as the Madras Estates (Abolition and Conversion into Ryotwari) Act of 1948, specifically section eighteen, subsection four.
The Court observed that the Vizianagram family constituted a joint Hindu family possessing a large estate that was originally impartible and passed down by primogeniture. Over time the holder of that estate acquired additional immovable and movable properties, some of which were incorporated into the original impartible estate. In 1948 the Madras Estates (Abolition and Conversion into Ryotwari) Act was enacted, resulting in the State taking over the Vizianagram estate. The holder subsequently instituted a suit seeking partition of the joint family properties, claiming as impartible the ancestral estate together with certain later‑acquired immovable properties that had been incorporated and certain described jewels. The respondents contested the claim on several grounds: they argued that the later‑acquired immovable properties could not be deemed impartible, that the doctrine of incorporation did not extend to movable property, and that even if the buildings had been incorporated pursuant to section eighteen, subsection four of the 1948 Act, they had become partible. The Court held that immovable property acquired after the original grant, when incorporated into the estate, likewise became impartible. It affirmed that an ancestral estate obtained by custom of primogeniture forms part of the undivided Hindu family’s joint estate, and that survivorship rights persist unless a statute or custom expressly excludes them. The Court further explained that, absent such exclusion, the holder of a customary impartible estate may, by a clear declaration of intention, incorporate his self‑acquired immovable property, thereby subjecting that property to all the incidents of the estate, including descent by primogeniture. The decisive test, the Court said, is the intention of the holder. The Court also noted that the holder of an impartible estate may alienate the estate by inter‑ vivos gift or by will, provided that no family custom or tenure condition prohibits such alienation. Finally, the Court reiterated that the Madras Impartible Estates Acts render impartible estates inalienable, a restriction that applies not only to the original estate but also to properties incorporated into it, and that while the doctrine of incorporation does not apply to movable property, a family custom that declares a particular category of movable property as impartible would be recognized if it is ancient and invariable.
In this case the Court observed that a holder of an impartible estate may alienate the estate by inter‑ vivos gift or by a will even though the family remains undivided. The only restriction on this power could arise from a family custom that runs contrary to such alienation or from specific conditions of the tenure that have an equivalent effect. The Madras Impartible Estates Acts of 1902‑1901 expressly declared impartible estates to be inalienable; this inalienability applies not only to the estate as it was originally granted but also to any property that has subsequently been incorporated into the estate. The Court referred to several authorities on this point, including Shiba Prasad Singh v. Rani Prayag Kumari Devi (1932) L.R. 59 I.A. 331, Rani Sartaj Kuari v. Deoraj Kuari (1888) L.R. 15 I.A. 51, Venkata Surya v. Court of Wards (1888) L.R. 26 I.A. 83, Ram Rao v. Raja of Pittapur (1918) L.R. 45 I.A. 148 and Collector of Madras v. Mootoo Ramlalinga Sathupathy (1868) 12 Moo. I.A. 397.
The Court then explained that the theory of incorporation does not extend to movable property. Nevertheless, if a family custom is proven that a particular category of movable property is treated as impartible, that custom will be recognized. Such a family custom, like any special custom, must be ancient, immutable and must be established by clear and unambiguous evidence. The Court noted that the evidentiary burden in family customs may be less demanding than that required for customs affecting a territory or a community. In assessing a family custom, the Court said, the consensus of opinion among the family members, the traditional belief they entertain and act upon, their statements and their conduct are all relevant factors. The evidence produced in the present matter demonstrated that a family custom existed under which certain ceremonial jewels were regarded as part of the regalia belonging to the holder of the estate. The Court cited the decisions Ramalakhmi Ammal v. Sivanantha Perumal Sethurayar (1872) 14 Moo. I.A. 570 and Abdul Hussein Khan v. Bibi Sona (1917) L.R. 45 I.A. 10 in support of this principle.
Regarding the immovable properties that had been incorporated into the impartible estate, the Court held that they were not rendered partible by section 18(4) of the Abolition Act. The buildings that fall within the scope of section 18(4) were vested in “the person who owned them immediately before the vesting”. The Court clarified that the phrase “the person who owned” refers solely to the landholder and does not extend to any other persons. The mere use of the term “landholder” in section 18(4) did not alter this interpretation.
The judgment concluded by summarizing the civil appellate proceedings. The appeals numbered 170 through 177 of 1961 arose from the judgment and decree dated 30 March 1956 of the former Andhra Pradesh Court in S.A. Nos. 129 and 131 of 1954 and Nos. 3 and 34 of 1955. Counsel for the appellant in civil appeals 170 and 171 and for respondent No. 1 in civil appeals 172 to 177 were listed, as were the counsel for the various respondents in the remaining appeals. The Court proceeded to address the issues raised in these eight appeals, which originated from a partition suit filed by the plaintiff Viziaram Gajapathi Raj II against his younger brother Visweswar Gajapathi Raj, respondent No. 1, and his mother Vidyavathi Devi, respondent No. 2.
Counsel for the appellant in appeals numbered one hundred seventy‑two and one hundred seventy‑three of 1961 comprised two members of the bar, while counsel for respondent number one in appeals numbered one hundred seventy and one hundred seventy‑one of 1961, and counsel for respondent number two in appeals numbered one hundred seventy‑four through one hundred seventy‑seven of 1961, also appeared. For the appellants in appeals numbered one hundred seventy‑four and one hundred seventy‑five of 1961, the team of counsel included A V Viswanatha Sastri, D Y Sastri and R Gopalakrishnan; they also represented respondents numbers three and four in appeals numbered one hundred seventy through one hundred seventy‑three of 1961, and respondents numbers four and five in appeals numbered one hundred seventy through one hundred seventy‑seven of 1961. Further, counsel C B Agarwala and K K Jain appeared for the appellant in appeals numbered one hundred seventy‑six and one hundred seventy‑seven of 1961, as well as for respondent number four in appeals numbered one hundred seventy‑four and one hundred seventy‑five of 1961. The judgment was delivered on the nineteenth day of March, nineteen hundred and sixty‑three, by Justice Gajendragadkar. This batch of eight appeals had been transmitted to the Supreme Court through a certificate issued by the Andhra Pradesh High Court. The appeals originated from a partition suit instituted by the plaintiff, Viziaram Gajapathi Raj II, against his younger brother Visweswar Gajapathi Raj, who was designated as defendant number one, against his mother Vidyavathi Devi, defendant number two, against his uncle Sir Vijayanand Gajapathi Raj, defendant number three, and against his grandmother Lalitha Kumari Devi, defendant number four. All of the parties involved belonged to the Vizianagram family, a lineage that possessed a very large estate which was characterized as impartible and which passed to heirs according to the rule of primogeniture. The judgment later included a genealogical chart that clearly traced the relationships among the disputants and illustrated how the Vizianagram Estate had passed through successive holders over time.
The genealogical review identified Narayana Gajapathi Raj as the founder of the family. His son succeeded to the estate upon Narayana’s death in eighteen hundred and forty‑five and is regarded as the architect of the family’s wealth. From eighteen hundred and forty‑five until eighteen hundred and seventy‑nine, this son administered the estate and, during his tenure, acquired a substantial quantity of both movable and immovable property, including an extensive estate situated in and around Banaras. At his death he left behind a sole son, Ananda Gajapathi Raj, and a daughter, Appala Kondayamba I, who later became the Maharani of Rewa. Ananda Gajapathi Raj died without issue on twenty‑third May, eighteen ninety‑seven. Prior to his death he executed a will that devised all of his properties to his maternal uncle’s son, Chitti Babu. Subsequently, on eighteenth December, eighteen ninety‑seven, Ananda’s mother, Alak Rajeswari I, adopted Chitti Babu as her son, thereby making Chitti Babu the adoptive brother of Ananda, the testator. The circumstances indicate that Chitti Babu had been raised within the Vizianagram family and that when Ananda executed his will, it was anticipated that Chitti Babu would eventually be formally adopted by Alak Rajeswari I. Alak Rajeswari I later died in eighteen hundred and one, having executed a will that conferred a life estate in her properties upon her daughter, the Maharani of Rewa, with the remainder to the children of Chitti Babu.
According to the will made by Alak Rajeswari I, the life‑estate in her properties was given to her daughter, the Maharani of Rewa, and the remainder was to pass 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 Alak Narayana, subject to the payment of maintenance to the maintenance holders and to the settlement of any amounts due to his creditors. The Maharani of Rewa died on 14 December 1912, but before her death she executed a will bequeathing all her properties to Chitti Babu for his lifetime, with the remainder to be divided equally between Alak Narayana and his younger brother Vijayananda Gajapathi Raj. During Chitti Babu’s lifetime the Impartible Estate Acts enacted by the Madras Legislature in 1902, 1903 and 1904 came into force. Chitti Babu died on 11 September 1922, and on his death Alak Narayana succeeded to the estate. In 1935 the Vizianagram Estate and the other properties belonging to Alak Narayana were placed under the management of the Court of Wards, and they remained under that management until they were handed over to Alak Narayana’s son Viziaram Gajapathi Raj, the present plaintiff, in 1946, Alak Narayana having died on 25 October 1937. While the estate was being managed by the Court of Wards, Vijayananda Gajapathi Raj, identified as defendant No. 3, made a claim before the Court of Wards for his half‑share in all the properties of Chitti Babu, except for the impartible estate. The Court of Wards referred this claim to Sir D’ Arcy Reilly, a retired judge of the Madras High Court, for inquiry. Sir D’ Arcy conducted the inquiry and submitted his report to the Court of Wards. Subsequently the claim of defendant No. 3 was settled by compromise and, on 9 October 1944, defendant No. 3 executed a deed of release in favour of the plaintiff and Visweswar Gajapathi Raj, identified as defendant No. 1, who at that time were represented by the Court of Wards. Under the terms of this release deed, defendant No. 3 received a payment of Rs 10,00,000 and an additional sum of Rs 54,193, and in return he relinquished all his claims to any share in the movable and immovable properties of Chitti Babu, including those properties he had alleged to be joint‑family assets. Thus the dispute between the plaintiff and defendant No. 2 on the one hand and their uncle, defendant No. 3, was amicably resolved. In 1948 the Madras Legislature enacted the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (hereinafter called the Act). Pursuant to the material provisions of that Act, a notification was published in August 1949 whereby the Vizianagram Estate was taken over by the State effective from 7 September 1949. Anticipating that the State’s takeover might give rise to disputes among the parties, the plaintiff filed suit No. 495/1949 in the High Court of Madras for partition of the joint‑family properties, claiming that large
The Court noted that the plaintiff alleged a large number of immovable properties and a substantial quantity of jewels were impartible, while the remaining movable and immovable assets were partible. The High Court of Madras had issued a preliminary decree for partition on 11 September 1950, declaring that the plaintiff, defendant No 1 and defendant No 2 each received a one‑third share in the partible assets of the joint family that included the deceased Alak Narayana. At that time, the law barred defendant No 2 from any interest in the agricultural lands of the family, resulting in the plaintiff and defendant No 1 being allotted a half share each of those lands. Following the preliminary decree, the parties submitted detailed lists of the assets and asserted their respective claims. The records showed that 1.06 items of immovable property were involved in the suit together with approximately 581 jewels. The plaintiff contended that, besides the properties originally granted by the Sanad to the ancestors, certain subsequently acquired immovable lands had been incorporated into the original estate by the then holder and therefore should be treated as impartible; likewise, the plaintiff asserted that 141 of the 581 jewels constituted regalia of the Zamindar, rendering them non‑partible and denying defendants 1 and 2 any entitlement to those pieces.
Defendant No 4 entered the controversy by filing application No 4830/1950, claiming that some of the items listed in the Toshakhana were her stridhan and thus exempt from partition between the plaintiff and defendants 1 and 2. She asserted a right to 95 jewels, categorising 76 of them—shown in Appendix A—as gifts from her husband and the remaining 19—shown in Appendix B—as gifts from her parents. Defendant No 2 also advanced a claim that 55 jewels were her stridhan, while the plaintiff sought to exclude 140 jewels on the ground that they formed the Zamindar’s regalia and were impartible. The trial judge framed fifteen issues for determination before delivering a final decree. In support of their positions, all parties primarily relied on documentary evidence; none, except defendant No 4, took the witness stand. Defendant No 4, however, was examined on commission and provided oral testimony in support of her claim. The learned trial judge held that
The trial judge held that the estate was impartible by custom while it was held by Viziaram Gajapathi and Ananda Gajapathi, and that those zamindars possessed the authority to incorporate immovable properties acquired thereafter into the existing estate. He further observed that when the estate acquired the status of impartibility under Act 11 of 1904, the provisions of that Act extended to cover all accretions to the estate that had been made prior to 1897 and that had subsequently been incorporated into the estate. The question of whether any of the later‑acquired properties had been incorporated into the estate was subsequently tried by the judge as a matter of fact. In doing so, he placed upon the plaintiff the burden of proving such incorporation. The judge also concluded that any portion of the impartible Zamindari of Viziaram Gajapathi that formed an integral part of the estate before the notified date, as defined by the Act, including lands and buildings that had been incorporated, would be governed by the provisions of the Act. Accordingly, the apportionment of land would be governed by sections 12 and 47 of the Act, whereas buildings that had been incorporated into the Zamindari before the Act took effect would vest in the plaintiff after the notified date and would not be subject to division. After recording findings on each of the issues, the trial judge issued a final decree. It is not necessary to detail every provision of that decree; it suffices to note the broad categories of items that were allocated to the parties and that remain disputed before this Court.
Regarding the plaintiff’s assertion that one hundred and forty jewels constituted regalia, the trial judge accepted the claim for only thirty‑six jewels. The jewels so recognised were items numbered 1 through 19, 23, 24, 26, 27, 46, 56, 57, 79, 80, 108, 116, 124, 125, 126, 127 and 128 of Appendix A. By mistake, the judge also listed item number 25, a mistake which the parties have conceded. Concerning the plaintiff’s contention that certain later‑acquired properties had been incorporated into the estate, the judge upheld that claim with respect to the Prince of Wales Market at Vizianagram, the permanent lease‑hold rights over nine villages, and the Admiralty House at Madras together with Waltair House and Elk House at Ooty. Defendant No. 4’s claim was partially recognised; the decree granted her right to fifteen specific jewels, namely items 20, 45, 49, 54, 186, 203, 230, 348, 349, two gold anklets listed as items 364, item 535 and items 136, 138, 141 and 297, based on the list prepared by Mr Sathianathan (Exhibit P‑157). It is admitted that this list mistakenly incorporated three items from Appendix B 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, and consequently Defendant No. 4’s claim should be treated as valid only for the twelve jewels expressly recognised in the decree.
In the judgment of the trial court, the claim of defendant No 4 was acknowledged as valid only with respect to twelve jewels that were specified in the decree issued by that court. The decree consequently gave rise to four separate appeals. The plaintiff instituted appeal No 34/1955, defendant No 1 filed appeal No 3/1955, defendant No 2 lodged appeal No 129/1954, and defendant No 4 pursued appeal No 131/1954. It appears that the last of these appeals was permitted to be withdrawn, and instead defendant No 4 was allowed to file cross‑objections to the other parties’ claims.
All of the appeals were thereafter transferred to the High Court of Andhra because, following the re‑organisation of Andhra State, the High Court of Andhra Pradesh acquired jurisdiction over the subject matter of the dispute. Before the High Court, the parties raised the same questions of fact and law that had been argued before the trial court and each side pressed its respective claims. The High Court affirmed the trial court’s finding that the Prince of Wales Market and the permanent lease‑hold rights in respect of nine villages had been incorporated into the inpartible estate. The High Court also concurred with the trial court in rejecting the plaintiff’s contention that the bungalow at Ootacamund known as “Shoreham” and the bungalow at Coonoor known as “Highlands” were part of 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 – concluding that the plaintiff had failed to establish that these properties had been incorporated into the estate. Consequently, the High Court held that those three bungalows, like the earlier‑mentioned “Shoreham” and “Highlands”, were partible between the plaintiff and defendants 1 and 2, meaning the plaintiff lost his claim to those three properties before the appellate court.
Concerning the jewels, the appellate court held that items numbered 129 and 360, in addition to the sixteen items covered by the trial‑court decree, should be regarded as part of the zamindar’s regalia. This determination meant that the plaintiff’s claim succeeded with respect to a total of thirty‑eight jewels. Regarding the claim advanced by defendant No 4, the appellate court examined her evidence and was not persuaded by her testimony; as a result, the decree that had been passed in her favour was set aside. Thus, the plaintiff and defendants 1 and 2 achieved partial success before the appellate court, whereas defendant No 4 lost her case entirely.
The appellate decision gave rise to the present group of eight civil appeals. Civil Appeals Nos 170 and 171 of 1961 were filed by the plaintiff, Civil Appeals Nos 172 and 173 of 1961 by defendant No 1, Civil Appeals Nos 174 and 175 of 1961 by defendant No 2, and Civil Appeals Nos 176 and 177 of 1961 by defendant No 4.
The plaintiff argued that the appellate court should have accepted his request to treat five specific buildings located outside the limits of the Vizianagram Zamindari as impartible property. The buildings he identified were the Admirality House, the Waltair House, the Elk House, the little Shoreham and the Highlands. In addition, the plaintiff sought recognition of his claim to one hundred and two items of jewellery that he said formed part of the regalia of the zamindar. However, counsel for the plaintiff, Mr Pathak, told the Court that he would limit the claim to eighty‑three jewellery items and, even with that reduced figure, he did not press the matter further. Consequently, the plaintiff’s case was essentially confined to the five houses. In the appeals filed by defendants 1 and 2, both parties challenged the lower courts’ finding that the Prince of Wales Market was impartible and that the permanent lease‑hold rights over nine villages could not be divided. They also disputed the conclusion that any jewellery could be deemed regalia of the zamindar and therefore impartible, insisting that none of the thirty‑eight jewellery items identified by the trial court should have been treated as impartible. Defendant 4, meanwhile, contended that the appellate court erred in overturning the trial court’s decision, which had largely relied on an assessment of her oral testimony. This set out the core of the dispute that the Court was called upon to resolve in this group of eight appeals.
Before addressing the contest between the plaintiff and defendants 1 and 2, the Court first considered the claim of Defendant 4. She is the widow of Chitti Babu and the grandmother of both the plaintiff and Defendant 1. All parties agreed that the decree granted to her by the trial court should be upheld, but with a modification: the items listed in Appendix B, for which Defendant 4 had conceded a benefit to Defendant 2, should be excluded. In other words, her entitlement should be limited to the twelve items specified in List A of the trial‑court decree. This concession was offered unconditionally by the plaintiff and Defendant 2, and conditionally by Defendant 1. Counsel for Defendant 1, Mr Kumaramangalam, explained that his client would consent to restoring the decree in favour of Defendant 4, subject to the stated modification, only if Defendant 4 agreed to allow him to take a one‑quarter share of the jewellery allocated to her under the compromise. He proposed that this could be arranged by having the jewellery belonging to Defendant 4 valued by qualified valuers, after which Defendant 1 would be given the option to select jewellery whose total value would represent one quarter of the value of Defendant 4’s share. If a precise one‑quarter valuation could not be determined mathematically, the parties could adjust the balance by a cash payment from one party to the other as necessary, a condition that Defendant 4’s counsel, Mr Aggarwal, accepted. This agreement formed the basis for setting aside the appellate court’s order and restoring the trial‑court decree, subject to the modifications and conditions described, thereby resolving Defendant 4’s appeals numbered 176 and 177 of 1961.
Because a precise calculation of one‑fourth of the valuation could not be achieved with mathematical certainty, the Court allowed that the shortfall could be remedied by a cash payment from one party to the other, if such a payment was deemed necessary. The counsel appearing for defendant number four, Mr Aggarwal, expressly accepted this condition. Consequently, by mutual consent, the Court set aside the order that had been issued by the Court of Appeal and reinstated the decree originally passed by the trial Court in favour of defendant number four, subject to the modifications and conditions that had just been articulated. This settlement of the compromise fully disposed of the two appeals filed by defendant number four, namely appeals numbered 176 and 177 of 1961. The matter then returned to the remaining dispute between the plaintiff and defendants one and two. In addressing that dispute, the Court indicated that several points of law, which had been argued before it, required careful consideration. The foremost issue concerned the nature of an impartible estate such as the one owned by the Vizianagram family. The Court referred to the decision of the Privy Council in Shiba Prasad Singh v Rani Prayag Kumar Debi, which established that an estate that is impartible by custom cannot be regarded as the separate or exclusive property of the individual holder. When the holder inherits the estate as an ancestral property and succeeds to it by primogeniture, the estate becomes part of the joint property of the undivided Hindu family. The Court also cited the illuminating judgment delivered by Sir Dinshah Mulla for the Board, which examined earlier decisions on the subject and clearly articulated the prevailing legal position. For an ordinary joint‑family property, the Court noted that family members are entitled to four distinct rights: (1) the right of partition; (2) the right to restrain alienations by the head of the family except when necessary; (3) the right of maintenance; and (4) the right of survivorship. Given the inherent nature of an impartible estate, the Court observed that the first right, that of partition, cannot arise. The second right, which restrains alienation, is likewise incompatible with the custom of impartibility, a principle affirmed by the Privy Council in Rani Sartaj Kuari v Deoraj Kuari and by the First Pittapur case, Venkata Surya (1932) LR 99 IA 331. The Court further explained that the right of maintenance, as a matter of legal entitlement, does not apply to such estates, a view supported by the Second Pittapur case, Ram Rao v Raja of Pittapur. However, the fourth right, the right of survivorship, remains viable and is the basis on which an impartible estate is treated, in the eyes of law, as joint‑family property. The Court cautioned that the right of survivorship should not be confused with a mere “spes successionis”; unlike a “spes successionis”, the right of survivorship can be voluntarily renounced or surrendered. The Court also affirmed that this principle follows from the decision in Shiba Prasad Singh’s case.
In the cited case, the Court explained that, unless a statute or a prevailing custom expressly excluded it, a holder of a customary impartible estate possessed the power, by expressly declaring his intention, to incorporate into that estate any immovable property that he had acquired on his own. Once such incorporation was effected, the newly added property became part of the impartible estate and assumed all the attributes of that estate, including the customary rule of succession by primogeniture. The Court noted that a different result could arise where the estate had been granted by the Crown with a condition that it descend by primogeniture. Sir Dinshah Mulla was referenced for his observation that the question of incorporation had been considered in numerous decisions of the Board of Revenue as well as in judgments of Indian High Courts, and that none of those decisions had challenged the competence of a holder to incorporate property. The Court emphasized that incorporation was fundamentally a matter of intention; only when evidence demonstrated that the acquirer intended to bring the self‑acquired property into the impartible estate could an inference of incorporation be drawn. This intention test was described as the crucial criterion in every relevant case. The Court further observed that the legal effect of incorporation operated in the opposite direction to the effect of blending self‑acquired property with the joint family property. In the blending scenario, as illustrated by the authorities cited (1889) L.R. 26 I.A. 83; (1918) L.R. 45 I.A. 148; (1932) L.R. 59 I.A. 331, when a person who is a coparcener acquired separate property and merged it with the joint family holdings, the separate character of that property was lost and it became part of the joint family estate, causing its succession to be governed by survivorship rather than by ordinary succession rules. Conversely, when a holder of an impartible estate acquired property and incorporated it into the impartible estate, that property ceased to be a partible asset and became impartible, thereby subjecting it to the estate’s rule of descent. In both the blending and incorporation contexts, the decisive factor remained the intention of the party, whether proved by conduct or other means, from which the Court could infer either blending or incorporation. The Privy Council had been urged, in the case of Shiba Prasad Singh, to reject the doctrine of incorporation on the ground that it would permit a holder of an impartible estate to devise a customary rule of succession that differed from the ordinary rule. The Court dismissed that argument, holding that under Hindu law clear proof of usage, even if it arose from family custom, could outweigh the written statutory provisions, as demonstrated in Collector of Madura v. Mootoo Ramalinga Sathupathy. Sir Dinshah Mulla reiterated that the power to incorporate was an inherent power of every Hindu owner and applied equally to a customary impartible Raj unless it was expressly excluded by statute or custom. The Court acknowledged, however, that further considerations remained to be addressed regarding the application of these principles.
In the context of Hindu law, the principle that governs immovable property cannot be extended to movable property, and therefore the doctrine of incorporation does not apply to movables. Nevertheless, this limitation does not prevent a family custom from classifying certain movable assets as impartible. When a family custom is proven according to the established method of proving customs, and that custom demonstrates that a particular class of movable property is treated by the family as impartible, the courts will recognize such a custom without doubt. This general rule reflects the position articulated in the case of Shiba Prasad Singh, where the court clearly explained the applicable Hindu law on impartible property. At this point another relevant dimension of the issue should be addressed. Before the Privy Council’s decision in Ranis Sartaj Kuari v. Deoraj Kuari, the prevailing assumption was that a holder of an ancestral impartible estate could not transfer or mortgage the estate beyond his own lifetime in a manner that would bind the other co‑sharers, except when the transfer was for the benefit of the family as a whole rather than for the holder’s personal advantage.
The rationale for this view lay in the fact that many impartible estates had been granted on military tenure, and unrestricted alienations would defeat the very purpose of such grants. However, the 1888 decision of the Privy Council in the Rani Sataj Kuari case disrupted that view. In that case the owner of the estate had gifted seventeen villages to his junior wife, and the son of the owner challenged the validity of that gift. The Privy Council rejected the son’s claim, holding that where Mitakshara law prevails and the custom of primogeniture exists, the eldest son does not become a co‑sharer with his father, and therefore the inalienability of the estate depends on proof of a custom 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. Consequently, it became settled law that a holder of an impartible estate may alienate the estate by an inter‑ vivos gift or by testamentary disposition, even though the family estate remains undivided. The only limitation on such a power arises from a contrary family custom or from the specific conditions of the tenure that produce a similar effect. Shortly after these Privy Council decisions, the Madras Legislature intervened because the judgments had sharply disturbed the prevailing view in Madras regarding the restrictions on the powers of holders of impartible estates to make alienations.
The Court observed that the enactment of the Madras Impartible Estates Acts of 1902, 1903 and 1904 was prompted by the need to regulate the status of impartible estates in the State. The Legislature, before passing those statutes, undertook a series of inquiries concerning the nature and extent of impartible holdings within the Madras Presidency and consequently incorporated in the statutes the conditions and terms that it deemed appropriate for the tenure of such estates. It was emphasized that, as a result of the operative provisions in those Acts, the question of whether an impartible estate may be alienated no longer depends upon the existence of a family custom in Madras; instead, the statutory provisions expressly determine the in‑alienability of such estates. The Court further recalled that the principle of incorporation does not apply to movable property and that only by establishing a family custom can a class of movables belonging to a family be treated as impartible. The law governing the proof of custom, the Court noted, is well settled. In the Privy Council decision in Ramalackshmi Ammal v. Sivananth Perumal Sethurayar (1), the Court cited the observation that special usages which modify the ordinary law of succession must be ancient, unvarying and must be proven by clear and unambiguous evidence; only such proof can satisfy the courts that the usage possesses the requisite antiquity and certainty for legal recognition. The same principle, the Court held, must be applied when dealing with family customs, although the evidential material supporting a family custom may be less numerous or less frequent than that supporting customs of a territory, community or a particular estate. In assessing family customs, the Court explained that the consensus of opinion among family members, the traditional belief acted upon by them, their statements and conduct are all relevant, and a family custom will be deemed proved only when the court is satisfied that the cumulative evidence meets the required standard, as illustrated in Abdul Hussain Khan v. Bibi Sona Daro (1). Applying these principles, the Court turned to the rival submissions in the present appeals. Counsel for defendants 1 and 2 contended that the provisions of Act 11 of 1904 restrict the notion of impartibility solely to properties described in the Sanad. The Sanad, which was entered into evidence as Exhibit P‑77 and dated 21 October 1803, confirms the original grant of one thousand one hundred and sixty villages to the ancestor of the parties and, according to the defendants, this document alone defines the impartible character of the properties in dispute.
In this case the parties argued that any property acquired by the holders of the Zamindari estate from their personal savings could not be treated as impartible. The Court first recalled the origins of the Madras Act 11 of 1904. Section 2(2) of that Act defines an “impartible estate” as an estate that descends to a single heir and is subject to the other incidents of impartible estates in Southern India. Section 2(3) defines a “proprietor of an impartible estate” as the person who is entitled to possession of the estate as the single heir, either under a special custom of the family or locality where the estate is situated, or, when no such family or local custom exists, under the general custom regulating the succession to impartible estates in Southern India, as noted in the case reported at (1) (1917) L. R. 45 I. A. 10. Section 3, the principal provision of the Act, declares that the estates listed in the Schedule are to be deemed impartible estates. Section 4(1) imposes restrictions on alienations of such estates, while Section 4(2) sets out the permissible alienations. The Court noted that the other provisions of the Act were not relevant to the issue at hand. The Schedule of the Act enumerates the zamindari estates district‑wise. Counsel for the defendants, Mr Setalvad, contended that the Vizianagram estate was shown under two districts merely because the Schedule was intended to cover only the property granted by the Sanad, and therefore the estate should be governed by Section 1 of the Act. He argued that any later acquisitions by the estate holders lay outside the Vizianagram estate as described in the Schedule and thus could not be claimed to be impartible. The Court was not persuaded by this submission. It observed that the listing of the Vizianagram estate under two districts was a matter of administrative convenience rather than a limitation on the scope of the Schedule. The Court held that the legislature, after making inquiries, was satisfied that certain estates in the Madras State were impartible and was eager to declare their impartibility and prescribe restrictions on alienations, a step prompted by the Privy Council decisions previously cited. Consequently, the Vizianagram estate as included in the Schedule must be understood to comprise all impartible property forming that estate.
The Court further explained that the principle of incorporation, recognized by customary law, operated after the Sanad was issued and before the enactment of the 1904 Act. If, by virtue of that principle, properties acquired subsequently were incorporated by the holder of the zamindari into the impartible estate, those properties would become an integral part of the estate and consequently fall within the Vizianagram estate as described in the Schedule. Whether any particular property that was not mentioned in the Sanad but was acquired later had indeed been incorporated was a question of fact to be determined on its own merits. However, the Court emphasized that it would be incorrect to hold that such incorporated properties, even if they were acquired before the Act was passed, should be excluded from the estate described in the Schedule and thereby fall outside the ambit of the Act. Accordingly, the argument that the effect of Act 11 of 1904 prevents the plaintiff from claiming that subsequently acquired properties have been incorporated could not be sustained.
Whether any particular property that was not mentioned in the original sanad but was later acquired has, in fact, been incorporated into the estate is a question of fact that must be determined on its own merits. Nonetheless, it would be incorrect to argue that even if certain immovable properties were incorporated before the enactment of the Act, they would be excluded from the estate described in the Schedule and therefore fall outside the operation of the Act. Consequently, the contention that the effect of Act 11 of 1904 is to bar the plaintiff from asserting that subsequently acquired properties have been incorporated cannot be sustained. The subsequent issue, which was vigorously pressed by counsel for the respondents, relates to the buildings that have been found to be incorporated with the impartible estate. The counsel contended that, by virtue of the provisions of section 18(4) of the Act, the first and second defendants are entitled to claim a share in those buildings to which that provision applies. To resolve this issue, it is necessary to refer to certain definitions prescribed in section 2 and other pertinent provisions of the Act; however, before undertaking that analysis, the Court first set out the text 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 land‑holder of that estate and were being used by him as an office for the administration of the estate and for no other purpose; it provides that such buildings shall vest in the Government, free of all encumbrances, from the notified date. Section 18(2) concerns buildings which belonged to any such land‑holder and whose whole or principal part was 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, although a proviso to that subsection is not considered relevant here. Section 18(3) addresses buildings that fell under clause (i) or clause (ii) on 1 July 1947 but that had been sold, otherwise transferred or had ceased to be used for the purposes specified in clauses (i) and (ii) 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 value to the Government out of the compensation deposited under section 41(1). It is agreed that the buildings currently under dispute fall within section 18(4). Section 18(4) reads as follows: “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”.
In this case, the Court examined the wording of section 18(4) which provides that a building which vests in a person other than a landholder shall also be subject to any payments that such person was liable to make to a landholder immediately before the notified date, whether those payments were periodic, rent, or otherwise, and whether they accrued on or after the notified date. Counsel for the plaintiff, Mr Setalvad, argued that the buildings falling under section 18(4) vested in the person who owned them immediately before that date, and that the owners included the members of the plaintiff’s family. He relied on the Privy Council decision in the case of Shiba Prasad Singh, which held that an impartible estate is joint‑family property governed by the rule of survivorship, thereby making the family members owners of the property in a theoretical sense. Counsel further maintained that the right of the family members to succeed to the property was not a specific bequest, and therefore they could be treated as owners of the property together with the plaintiff immediately before the notified date. To support this position, counsel highlighted that sections 18(1) and 18(2) expressly refer to a “landholder,” whereas section 18(4) uses the phrase “the person who owned the property,” and he argued that this change in terminology was intended to broaden the class of persons covered beyond just landholders.
The Court found that, although the argument appeared attractive at first glance, a careful analysis of the statutory definitions showed that the expression “the person who owned” in section 18(4) referred only to a landholder and not to any other person. Section 2(8) defined a landholder to include (i) a joint Hindu family where the right to collect rents of the whole or any portion of the estate vests in the family, and (ii) a dar‑mila inamdar. Section 2(12) defined a “principal landholder” as the person who held the estate immediately before the notified date. Applying these definitions, the Court observed that the joint Hindu family consisting of the plaintiff and defendants 1 and 2 could not claim the benefit of section 18(4) because the provision contemplated a landholder or proprietor as defined under the earlier 1904 Act. Moreover, the language of section 18(4) itself required that, in the case of a building which vests in a person other than a landholder, the person specified must be a landholder and no other. The Court concluded that the legislature’s choice of words, even if slightly altered, did not justify expanding the class of beneficiaries beyond the landholder, and therefore the argument for a broader interpretation could not be sustained.
The Court observed that the language of section 18(4) was not intended to bring a substantially larger group of persons within its scope. It noted another facet of the matter that reached the same conclusion. Section 43 of the Act provides for the apportionment of compensation where certain impartible estates are involved, and the persons entitled to claim such apportionment are limited by section 45(a) and (b). The Court reasoned that if the construction advocated by Mr. Setalvad were accepted, an anomalous situation would arise: while the right to claim apportionment of compensation would be confined to the narrower class of persons specified in section 45, a much broader class of persons would be permitted to invoke the benefit of section 18(4). Such a result could not have been the intention of the legislature. Accordingly, the Court was satisfied that the lower courts were correct in holding that defendants 1 and 2 could not claim the benefit of section 18(4). Having resolved that issue, the Court turned to the question of whether the Appellate Court was right in its conclusions on the matters raised by the parties concerning the incorporation of buildings in the impartible estate. The Court indicated that it would first address the pleas advanced by defendants 1 and 2.
Mr. Setalvad contended that the lower courts erred in holding that the Prince of Wales Market constructed at Vizianagram formed part of the impartible estate. He pointed out that the market had been built by Vijayaram Gajapathi in 1876 on a site that admittedly belonged to the estate. According to a report submitted by Mr. Sathianathan, when Vijayaram Gajapathi returned from Banaras and assumed charge of the estate from the District Collector, he embarked on a program to improve the town. Roads were laid, drinking‑water supplies and tanks were constructed, and hospitals, schools and colleges were opened. Recognising the need for a proper market, he completed the formation of the market in 1876. The market was divided into four compartments – the grain market, the timber market, the cattle market and the fish market. The Municipal Council approved the opening of this new market and directed that all existing markets be moved to the Prince of Wales Market. Evidence showed that the municipality was entrusted with the management of the market and that it operated 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 corresponded with the Zamindari holders at every stage, that the income from the property appeared in the Ayan accounts, that a distinction was maintained between Ayan accounts (referring to the estate) and family accounts, that the market was treated as a unit of administration within the Zamindari for management and fee collection, and that the government also treated the property as belonging to the estate.
The Court noted that the property in question was regarded by the Samsthanam as belonging to the Samsthanam itself. It observed that Mr. Sathianathan, in his report, also expressed the opinion that the land formed part of the Samsthanam. The Court further recorded that the structure had been erected to commemorate the visit of the Prince of Wales to India in 1875 and that its purpose was to provide a public amenity, together with other facilities, for the town of Vizianagram, which served as the headquarters of the estate. During the period when the Court of Wards administered the estate, the Court of Wards appeared to treat the property as an integral portion of the impartible estate, and, taken as a whole, the pattern of conduct demonstrated that the property had consistently been treated as belonging to the impartible estate. Mr. Setalvad, however, disputed several of the reasons advanced by the Appellate Court in support of its conclusion that the Prince of Wales Market had been incorporated into the impartible estate. The Court acknowledged that some of the reasons set out in the appellate judgment were not conclusive, yet it identified two principal considerations that guided its analysis on the present appeals. Firstly, the Court emphasized that the determination of whether a particular immovable property forms part of the impartible estate is fundamentally a factual inquiry, the decisive test being the intention of the owner. Both lower courts had agreed that the Market was incorporated into the impartible estate. Moreover, the Court highlighted two incontrovertible facts: the Market had been constructed on a site that was undisputedly owned by the estate, and it had been built to serve as a public amenity for the citizens of Vizianagram. The Court found it unlikely that, in 1876, when Vijayaram Gajapathi erected the Market, he intended it to be a profit‑making enterprise; rather, he envisioned it as a project undertaken in his capacity as a zamindar responsible for the welfare of Vizianagram’s inhabitants, intending that it form part of the impartible estate. In substance, this view aligned with that of the lower courts, and the Court saw no justification to disturb it.
The Court then turned to the other property issues that Mr. Setalvad had contested, namely the permanent leasehold rights over nine villages. These villages were identified as item No. 31 in issue No. 3 as framed by the trial Court and comprised Thummapala, Annamrajupeta, Kottavalasa, Abmativalasa, Jammu, Duvvam, Chintapallipeta, Seripeta, Manesam Sudha and Sujjangivalasa. The Court recorded that the villages were held under a permanent Mustajari lease granted to Mr. Venkata Reddi. Both the trial Court and the appellate Court had concluded that Mr. Reddi was merely a nominee of the Vizianagram Samsthanam and that the leasehold interest represented an accretion to the estate. The Court agreed with this conclusion, finding that the factual background—namely the bare recital of the relevant events leading to Mr. Reddi’s acquisition of the leasehold rights—supported the view that the leasehold rights were an addition to the estate. Consequently, the Court affirmed the lower courts’ finding that the leasehold interests in the nine villages were part of the estate, and it did not entertain any further challenge to that determination.
In this case the Court observed that the conclusions of the lower courts were clearly correct because the factual record itself demonstrated how the leasehold rights in the nine villages came to be owned by Mr Venkata Reddi. The nine villages had originally been part of the estate granted to the family by the Sanad. Sometime before 1850 they were sold for arrears of peishchush and were purchased by the Zamindar of Bobbili. The new purchaser subsequently sued to establish his title over the villages. The Government intervened and facilitated an amicable settlement between the two zamindars, recorded in document Ext. P‑112. That settlement provided, inter alia, that the villages should be granted on a permanent mustajari lease to Mr Venkata Reddi and that the Zamindar of Vizianagram should execute a guarantee letter in favour of the Agent for the amount payable by the lessee. Accordingly, the Raja of Vizianagram sent a letter to the Agent on 10 January 1857, and the Raja of Bobbili also wrote to the Agent agreeing to withdraw his suit, after which the lease was executed. The lease stipulated a yearly bill‑mukta of Rs 22,568. Further correspondence relating to the transaction showed that the Raja of Vizianagram treated the leasehold interest as his own and was very actively involved, apparently because it would have been considered demeaning to his dignity to take a lease from the Raja of Bobbili. A trust deed executed by Chittibabu in 1912 likewise confirms that the lease‑hold rights were regarded as part of the impartible estate, and the conduct 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 a railway crossing between the village of Alamanda and the town of Vizianagram. The compensation proceedings revealed that the two rival claimants for compensation were the Raja of Bobbili and the Raja of Vizianagram, and the dispute was settled on the basis that the lands had reverted to the Vizianagram Samsthanam subject to the annual charge of Rs 22,568. It is common ground 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 forming part of the estate. These facts clearly indicate that the lower courts were justified in accepting the plaintiff’s contention that the villages formed part of the impartible estate. The next point raised before the Court by counsel for the defendants, on behalf of defendants 1 and 2, concerns the decision of the Court of Appeal, which held that thirty‑eight jewels could be created as regalia and thus be impartible between the plaintiff and the defendants. The Court noted that this issue would be addressed in the following discussion.
The trial court had upheld the plaintiff’s claim with respect to thirty‑six jewels, whereas the Court of Appeal had added two additional jewels to that enumeration. Defendants one and two vehemently contested the correctness of this conclusion. In challenging the appellate finding, counsel for the defendants argued that it was inappropriate to describe any of the jewels as regalia in connection with the Vizianagram family because that family was not a ruling dynasty and therefore there could have been no occasion for a coronation. Counsel further maintained that even if some form of installation ceremony had taken place while the zamindari estate existed, the abolition of the zamindari estate by the Act of 1948 eliminated any occasion for such an installation, and consequently the claim that certain jewels constituted regalia should be rejected.
It is true that the original Sanad (Exhibit P‑77) granted to the ancestors of the parties was essentially a grant for military service; however, it is not clear that, as zamindars, the family never exercised what might be described, albeit euphemistically, as the power and authority of a ruling family. In the first half of the nineteenth century, the Saranjamdars and Zamindars who received grants from sovereign monarchs regarded themselves as petty chieftains or rulers and purported to exercise authority over the villages granted to them. Evidence shows that an installation ceremony was held in 1992 and it was also stated at the Bar that such a ceremony had been celebrated in 1947 after the plaintiff attained majority. In addition to installation, there may have been other ceremonial occasions on which jewels characterized as regalia could be worn by the holder of the zamindari and by his wife.
The argument that the abolition of the zamindari estate must automatically terminate the customary impartibility of the jewels treated as regalia by the family overlooks the principle that custom often outlives the conditions that gave rise to it. As Lord Atkinson observed while delivering the opinion of the Board in Rai Kishore Singh v. Mst. Gahenabai(1), “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” does not apply where the custom survives beyond the original circumstance that created it. For this reason, the contention raised on the ground that there was no justification for regalia in early times, and that any such justification ceased after the abolition of the zamindari estates, cannot be upheld.
The principal attack against the appellate finding, however, proceeds on the basis that Chittibabu took the whole of the estate as a devisee under the will executed by Ananda Gajapathi Raj and not as an adopted son of Vijayaram Gajapathi Raj.
In the present dispute the question centred on whether the estate of Ananda Gajapathi Raj passed to Chittibabu as a devisee under Ananda Gajapathi’s own will or only after Chittibabu had been taken on as an adopted son of Vijayaram Gajapathi Raj. The Court first noted that Ananda Gajapathi had executed a will dated 23 July 1896 in which he bequeathed his entire property to Chittibabu. Ananda Gajapathi died on 23 May 1897, at which point the provisions of his will vested the estate in Chittibabu as a legatee. The adoption of Chittibabu by Alak Rajeswari occurred later, on 18 December 1897, and therefore the property had already passed to Chittibabu before any adoption took place.
Because the estate had vested in Chittibabu prior to his adoption, the Court held that any family custom treating certain jewels of the Vizianagram family as impartible could no longer bind him. In other words, once the property was in Chittibabu’s hands as a devisee, the custom of impartibility ceased to operate over those jewels. The Court observed that both the lower courts had proceeded to trial on this very basis, and it was urged that a full appreciation of this fact would make it difficult for the plaintiff to prove that the jewels remained subject to an impartibility custom. The lower courts, the submission went, had not given sufficient consideration to this aspect.
Another argument raised by the plaintiff was that Chittibabu was a minor until 1911 and, even after attaining majority, the estate appeared to be largely under the control of the Maharani of Rewa, who was a major creditor of the estate. The plaintiff relied on a letter written by Chittibabu in which he claimed that he had never seen the family jewels. The plaintiff suggested that the Court would require strong evidence showing that Chittibabu and his successors had, by their conduct, demonstrated the existence of an impartibility custom sufficient to support the claim for thirty‑eight jewels. The plaintiffs argued that if, at the time Chittibabu acquired the estate under the will, the jewels were not yet subject to any impartibility custom, the plaintiff would need to establish that such a custom arose after Chittibabu’s acquisition, a requirement they said had not been met in the present case.
The Court also recognised that, while legally Chittibabu may be deemed to have obtained the property as a devisee under the will, it could not ignore the factual reality that he was raised within the Vizianagram family and was adopted shortly after Ananda Gajapathi’s death. It was noted as remarkable that, when Chittibabu’s title was challenged in suit No 18 of 1913, he defended his claim by invoking his own adoption. The litigation concluded in a compromise decree in appeal No 114 of 1909, dated 12 March 1913, where the plaintiffs who had contested Chittibabu’s title fully admitted the validity of his adoption.
The Court observed that the adoption of Chittibabu by Maharani Alak Rajeswari was valid and binding. Consequently, when Chittibabu took possession of the property and sought to establish his title, he relied primarily on his adoption rather than on the will executed in his favour by Ananda Gajapathi. Considering the circumstances surrounding the execution of the will and the subsequent adoption, the Court found Chittibabu’s reliance on his adoption to be understandable and justifiable. He had been raised by Maharani Alak Rajeswari from childhood, and Ananda Gajapathi had anticipated that Alak Rajeswari would adopt him, particularly because Ananda Gajapathi had lost his wife and had no male heir. The adoption deed executed by Alak Rajeswari clearly treated Chittibabu as a member of the family from the outset. After his admission as the adopted son, all family members believed that the lineage continued without interruption, and both Chittibabu and the Maharani of Rewa, along with others, regarded the property as belonging to the Vizianagram family, now held by the adopted member.
The Court noted that, technically, the adoption would relate back to the date of the adoptive father’s death, thereby avoiding any break in the continuity of the line. However, beyond this technical point, the Court emphasized that the parties’ attitudes and conduct at the relevant time must be considered when determining the existence of a family custom. The argument advanced by defendants 1 and 2 assumed that, prior to Ananda Gajapathi’s death, a custom existed treating certain jewels as the regalia of the Zamindar. If that assumption were correct, it would be difficult to accept that the custom ceased upon Ananda Gajapathi’s death and that Chittibabu’s arrival as an adopted son fundamentally altered its continuance. By 1911 Chittibabu had become a major, married, and had children, and the family expanded further. Throughout this period, the parties did not regard Chittibabu as a stranger who entered the family solely by virtue of the will, but rather as the adopted son of Vijayaram Gajapathi who perpetuated the line and held the property subject to all family traditions and customs. The Court acknowledged that, to uphold the plaintiff’s claim concerning the thirty‑eight jewels, it must be satisfied that evidence exists regarding the parties’ conduct after Chittibabu’s adoption. The plaintiff had indeed adduced such evidence concerning conduct after 1897, and the Court found that evidence to be satisfactory and cogent.
In this case the Court observed that it would not invalidate the probative value of the evidence to argue that Chittibabu had received the estate as a devisee rather than as an adopted son. The Court explained that the proof of a family custom was not to be determined by technicalities of law but by the clear evidence of conduct which demonstrated that the parties intended to maintain the traditional custom, treating Chittibabu—who entered the family through adoption—as though he were an adopted son who had in substance acquired the property. For that reason the Court held that the lower courts were correct in not attributing undue significance to the effect of the will executed by Ananda Gajapathi in favour of Chittibabu. The Court then turned to the question of whether the plaintiff’s evidence was sufficient to establish the custom he pleaded concerning the thirty‑eight jewels. The Court noted that some of the plaintiff’s evidence dated before 1897, but that the most material evidence dated after 1897. The first document relied upon by the plaintiff was the will of Ananda Gajapathi himself (Exhibit P‑6). In that will Ananda Gajapathi bequeathed all his movable and immovable property to Chittibabu, subject to the other liabilities specified in the will. While describing the properties, the testator referred to the movable and immovable property of the Samsthanam as well as his personal property, together with all rights, titles, privileges, honours and insignia of the family. The Court observed that the Samsthanam’s impartible properties were described as both movable and immovable, indicating that the testator recognised a family custom that treated certain movable assets as impartible because they belonged to the Samsthanam. The Court also examined the deed of adoption (Exhibit P‑7) which set out the material facts leading to Chittibabu’s adoption and referred to the authority conferred on the adoptive mother by her husband to make an adoption if required. The adoptive mother, Alak Rajeswari, executed a will on 15 January 1898 (Exhibit P‑9) in which she bequeathed her property to her daughter for life and the remainder to Chittibabu, whom she had raised from birth and to whom her son Ananda Gajapathi had bequeathed all his properties. The Court further considered a will dated 14 December 1911 executed by the Maharani of Rewa (Exhibit P‑10). This document was especially significant for the plaintiff because the Maharani bequeathed all her property to Chittibabu. Paragraphs 5 and 6 of that will were highlighted. Paragraph 5 stated that the Vizianagram Samsthanam owed the Maharani a sum of about seventeen lakh rupees, of which nine lakh represented loans she had made to the Samsthanam and eight lakh represented a legacy due to her under the will of her deceased brother, which she had also lent to the Samsthanam. She described her own jewellery as considerable, comprising jewels received from her father, mother, brother, husband and those purchased by herself. She further asserted that the state jewellery in her possession—including items such as Sarpesh Nakshatra joth, Jayamala, emerald and diamond pieces, and an emerald‑and‑pearl necklace bearing her mother’s name in several languages— formed part of the Samsthanam and were impartible, inalienable property, constituting regalia and heirlooms of the Vizianagram family. Paragraph 6 stipulated that she bequeathed all her movable and immovable property, subject to the legacies and directions contained therein, to Chittibabu Vizia Ramaraju, Rajah of Vizianagram, for his lifetime, on the condition that he complied with the provisions of the will, did not alienate the state jewellery, and preserved the specified jewels, namely an emerald‑and‑diamond necklace and diamond‑and‑gold bangles used by her. These passages demonstrated that the Maharani, a creditor of the Samsthanam, treated the state jewellery as an integral, indivisible component of the estate, reinforcing the existence of the custom asserted by the plaintiff.
The Maharani explained that the jewellery she possessed included pieces such as the Sarpesh Nakshatra joth, the jayamala, the Emerald Bujuaband, the Diamond Bujuaband and an emerald‑and‑pearl necklace whose central pendant bore her mother’s name in several languages. She declared that these items formed an integral, impartible and inalienable part of the Samsthanam and therefore constituted regalia and heirlooms of the Vizianagram family, passing along with the estate as a whole. In paragraph six of the will the Maharani then bequeathed all of her movable and immovable property, subject to the various legacies and directions contained therein, to Chittibabu Vizia Ramaraju, Rajah of Vizianagram, for his lifetime only, on the condition that he obey the provisions of the will. Specifically, she required that he refrain from alienating any of the State jewellery and that he preserve intact the State jewellery together with two particular jewels belonging to her: (1) a necklace of emeralds and diamonds and (2) diamond and gold bangles that she had used and wished to be kept alongside the State jewels.
These paragraphs demonstrated that the Maharani, who was the creditor of the Samsthanam for a sum of seventeen lakh rupees, was deeply interested in the proper management of the Samsthanam’s assets and enjoyed a cordial relationship with both the Samsthanam and Chittibabu. Paragraph five revealed that, as security for the loan she had advanced to the Samsthanam, certain jewels were retained with her. Among those jewels she identified five as constituting State Regalia: the Sarpesh Nakshatra joth, the jayamala, the Emerald Bujuaband, the Diamond Bujuaband and the emerald‑and‑pearl necklace with her mother’s name. The first of these five remained unidentified, while the remaining four had been identified and were described by the Maharani as part and parcel of the Samsthanam and as impartible, inalienable property. Paragraph six imposed on Chittibabu an explicit obligation not to alienate those State jewellery items, as well as the two personal jewels she listed. At the time the will was executed, no dispute existed concerning the existence of any State jewellery, and the Maharani’s relationship with Chittibabu was amicable. Her statement that certain jewels formed part of the State jewellery was therefore not self‑serving. In fact, she was bequeathing all of her property to Chittibabu, and her statements regarding the State jewels could be regarded as bona‑fide declarations made by a person who possessed ample knowledge of family traditions and who was actively supervising the estate’s administration. The lower courts naturally relied upon her declaration in reaching the conclusion that even after Chittibabu’s inheritance the status of the State jewellery remained unchanged.
In this case the Court observed that the family had long followed a tradition of treating certain jewels as impartible, and that this custom continued after the adoption of Chittibabu. The deed of trust executed by Chittibabu on 28 October 1912 clearly demonstrated his recognition of two separate categories of property: one belonging to the Zamindari estate, which was impartible, and another that was partible. The Court noted that this document would be referred to later when addressing the points raised by the plaintiff in the appeals. A further important piece of evidence supporting the plaintiff’s case was the conduct of defendant No 3 when he filed a claim for partition before the Court of Wards. In the statement of claims, defendant No 3 expressly acknowledged the existence of jewellery that was treated as State regalia. The Court stressed that the significance of this admission could not be underestimated. As the junior member of the generation, defendant No 1 was seeking his share of a very substantial property, and it was unreasonable to assume that he had not consulted counsel before making his claim. Yet he specifically admitted that certain jewels, by family tradition, were State regalia and therefore impartible. The Court further recorded that defendant No 3 had received a payment of more than ten lakh rupees in satisfaction of his full claims, after which he executed a deed of relinquishment in favour of the plaintiff and defendant No 1.
During the subsequent administration of the estate, the Court of Wards carried out a survey of the Vizianagram estate jewellery in 1946 (Exhibit P‑160). The survey report identified the presence of ceremonial jewellery and the Court of Wards issued directions that the jewellery should be reduced to the minimum amount necessary for future ceremonies in accordance with modern standards. While the survey was being conducted, defendant No 2 argued 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 would descend to the holder of that estate. The report showed that the ornaments claimed to be regalia and intended for ceremonial use were, in fact, stored together with the kiritam and its pattam, which are undeniably ceremonial items. Consequently, the Court was satisfied that the lower courts were correct in concluding that, both before 1897 and after the adoption of Chittibabu, the family had consistently regarded certain ceremonial jewels as regalia belonging to the holder of the Zamindari estate. This observation raised the question of the precise identity of those jewels. The Court noted that the Appeal Court’s finding rested principally on two documents: the will executed by the Maharani of Rewa and an entry in the list of jewels prepared by Mr Fowler and signed by Mr V.T. Krishnamachari and defendant No 4.
In this case, the Court examined how the Maharani of Rewa referred to five jewels as constituting the regalia of the Zamindari Estate. The list signed by Mr V T Krishnamachari and defendant No 4 indicated that for the installation ceremony of Alak Narayana Gajapathi on 29 September 1922, ornaments numbered 1 to 19 were taken out. The entry began with the words “Taken out for the installation ceremony on the 29th September” and then set out the enumeration. Both the trial Court and the appellate Court held that this list demonstrated that the jewels and articles specified were treated as regalia and were intended for use on ceremonial occasions. Relying on this list and on the will of the Maharani of Rewa, the Court of Appeal concluded that the thirty‑eight jewels claimed by the plaintiff must be regarded as regalia and therefore not subject to partition. Counsel for the respondents argued that the records did not disclose when the ornaments mentioned in the Maharani’s will or in Krishnamachari’s list had been purchased, and contended that unless the ornaments could be shown to have been acquired long before 1911 or 1922, it would be difficult to attribute to them the character of impartibility. The Court found that argument unpersuasive. It observed that family custom could designate ornaments essential for particular ceremonies, such as the installation ceremony or other auspicious events, as impartible even if those ornaments had not been purchased many years earlier. The custom did not require a long period of prior use for the designation to be effective. The lower courts had noted that the nature of most of the ornaments indicated they would be required on ceremonial occasions. Moreover, it was not unlikely that the articles taken out on 29 September 1922 had been kept together as a separate group. The Court also noted that certain items on the list, for example serial numbers 7, 10 and 11, were presently treated 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 reminded that although certain ornaments might be treated as regalia and thus impartible, the holder of the estate retained the power to gift such ornaments to family members. For instance, if an ornament mentioned in paragraph 5 of the Maharani’s will had been gifted to a daughter‑in‑law, that fact would not necessarily contradict the statement in the will that the ornament formed part of the Zamindar’s regalia. The Court admitted that the evidence concerning the precise identity of the jewels that could safely be regarded as regalia in the present case was not as satisfactory as it might have been, yet it hesitated to disturb the appellate conclusion because the overall evidence established a continuing family custom, even after the adoption of Chitti Babu, of treating certain ceremonial jewels as regalia.
In this matter, the Court observed that the evidence regarding the existence of a family custom after the adoption of Chitti Babu was not as thorough as it ought to have been; nevertheless, the Court was hesitant to disturb the finding of the Court of Appeal. The Court considered that the record fully demonstrated that a custom persisted in the family whereby certain ceremonial jewels were treated as regalia. Determining which specific jewels and ornaments were regarded as impartible by that custom was a factual question. Both the trial court and the appellate court had concurred that, of the thirty‑eight jewels in dispute, thirty‑six were held against defendants 1 and 2 and in favour of the plaintiff. The appellate court added two further items, numbered 129 and 360, to the list and based its inclusion on the recital in the will of the Maharani of Rewa, holding that the trial court should not have rejected that recital merely because it lacked corroboration. After reviewing the material, the Court concluded that there was no sufficient ground to interfere with the appellate court’s conclusion. Consequently, the appeals filed by defendants 1 and 2 were dismissed.
The Court then turned to the plaintiff’s appeals, which were confined by counsel for the plaintiff to the question of five bungalows owned by the family that lay outside the limits of the Vizianagram Zamindari. The trial court had held that three of those five bungalows had become part of the impartible estate, whereas the Court of Appeal disagreed with that assessment. Regarding the remaining two bungalows, both courts had ruled against the plaintiff. The Court noted the purchase history of the properties: Admiralty House was bought in 1891 by Ananda Gajapathi for twenty thousand rupees; additional plots adjoining that property were later acquired by him. The bungalow at Waltair had been bought in 1861 by Vijayaram Gajapathi for seven thousand rupees. Elk House at Ootacamund was purchased in 1889 for sixty thousand rupees; Shorham at Ooty was bought in 1892 for eighteen thousand rupees; and the Highlands at Coonoor were acquired in 1896 for seventy‑five thousand rupees. The appellate court found that the evidence concerning the parties’ conduct with respect to these bungalows was wholly ambiguous and that no material circumstance existed from which the plaintiff’s theory of incorporation could be reasonably inferred. Although the bungalows were situated outside the Zamindari estate, they were located in places of importance such as the estate’s headquarters, the district headquarters, or a hill station. It was possible that the Zamindar used these residences according to his convenience, but there was no indication that junior family members were excluded from staying there, and therefore the pattern of use did not support the plaintiff’s claim of incorporation. The Court acknowledged that the trial court had previously ruled in the plaintiff’s favour concerning Admiralty House, Waltair House and Elk House, but it affirmed the appellate view that those conclusions rested on suppositions rather than on reliable evidence.
The trial court had ruled in favour of the plaintiff concerning the Admirality House, the Waltair House and the Elk House, but the Court of Appeal observed that the trial court’s conclusion rested more on suppositions than on dependable evidence. The trial court had noted that it was understandable why a Zamindar might wish to own a residence at each of those three locations, especially when considering the prevailing attitudes of 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 satisfying this test would demonstrate incorporation of the properties into the Zamindari estate. While addressing the issue on that basis, the trial court did not deem it necessary for the plaintiff to produce evidence showing that any Zamindari business was carried out in any of those buildings. The trial court therefore concluded that the record contained no evidence indicating a contrary intention on the part of Ananda Gajapathi or even on the part of his successors, although the successors’ intention might not be highly material as evidence. This approach, which placed part of the evidential burden on the defendants, was held to be plainly erroneous. Consequently, there was no inclination to disturb the Court of Appeal’s finding regarding the three bungalows. Regarding the two remaining bungalows, both lower courts had reached concurrent findings against the plaintiff, and there was no reason to permit the plaintiff to contest those findings in light of the evidence before the court. Recognising the difficulty, counsel for the plaintiff based his argument mainly on the construction of the deed of trust executed by Chitti Babu. He contended that the document demonstrated Chitti Babu’s intention to incorporate the buildings into the Zamindari estate. To advance this contention, counsel assumed that the properties referenced in the deed of trust were Chitti Babu’s separate properties, having devolved upon him under the will of Ananda Gajapathi; he acknowledged that if the properties were ancestral holdings of Chitti Babu, then Chitti Babu could not have effected any incorporation with respect to them. Earlier, when addressing the issue of the impartibility of thirty‑eight jewels, counsel was compelled to argue that, although the will of Ananda Gajapathi in law bequeathed all of Chitti Babu’s properties, Chitti Babu actually received them as an adopted son in the family rather than as a devisee under the will. That aspect of the matter had already been considered, and it is reiterated here to stress that the plaintiff’s stance in supporting the incorporation of the buildings on the basis of the trust deed is inconsistent with the approach taken in the jewellery claim. Moreover, the trust deed itself does not substantiate the incorporation theory on which counsel relies.
The Court observed that the plaintiff’s contention that the buildings were incorporated into the impartible estate on the basis of the trust deed executed by Chitti Babu was not consistent with the position he had taken with respect to the jewels. Setting that internal inconsistency aside, the Court found that the trust deed itself did not lend support to the theory of incorporation that Mr. Pathak was relying upon. The deed, as drafted, appointed Mr. John Charles Hill Fowler to act as trustee for the purpose of managing the estate on behalf of the settlor’s minor eldest son, Alak Narayana Gajapathi. In order to address Mr. Pathak’s argument, the Court held that it was unnecessary to go through the entire scheme of the deed; it sufficed to refer to the two specific clauses upon which Mr. Pathak based his case. The first clause, found in the preamble, disclosed that the settlor claimed to be seized of, possessed of, or entitled to an inheritance comprising the whole impartible estate and the Zamindari that would descend to a single heir in accordance with the law and the custom of primogeniture that governed similar estates in Southern India. The preamble further identified these lands as being described in the First Schedule and commonly known as the Vizianagram Zamindari or Samsthanam, together with various other properties situated in the specified presidencies. In effect, the preamble was a comprehensive description of the entire property portfolio, encompassing both the impartible estate and the additional properties, and this description would accordingly include the houses that are the subject of the present dispute.
The second clause set out the settlor’s intention to settle the identified properties in trust for the benefit of his eldest son, expressly so that the son would enjoy “the same kind and nature of estate right and interest in the said Zamindari, its accretions and appurtenances and other properties hereby settled upon him as he would have if the same were now to devolve upon him from the settlor by right of inheritance according to the said law and custom of primogeniture,” subject, however, to the payment of maintenance and other allowances to the Raja and certain other family members, and to the satisfaction of all the settlor’s creditors as later provided. The argument advanced by Mr. Pathak was that by creating this trust for the benefit of the minor eldest son, the settlor had effectively incorporated all non‑impartible immovable properties into the Zamindari, albeit subject to the liabilities enumerated in the deed. In addition, Mr. Pathak relied on paragraph 2 of the deed, which listed particular items that were expressly excluded from the deed’s operation, contending that the buildings in question were not among those excepted items. Consequently, he argued that the buildings must be treated as having been incorporated by Chitti Babu into the impartible estate. The Court expressed that it was not persuaded by this line of reasoning. In evaluating the impact of the argument, the Court noted that, around the same period, Chitti Babu was engaged in litigation defending his title, which had been challenged in suit No. 18 of 1903, indicating that the circumstances surrounding the alleged incorporation were far from straightforward.
In the earlier suit identified as No. 18 of 1903, four respondents were parties, and during that proceeding Chitti Babu advanced his claim to the disputed lands principally on the ground that he was an adopted son rather than a devisee under the testament of Ananada Gajapathi. If this characterization is accepted, the properties that Chitti Babu obtained by virtue of his adoption would be regarded as ancestral assets, and consequently such assets could not be merged by him into the impartible Zamindari estate. Moreover, the specific clause invoked by counsel for the plaintiff, Mr. Pathak, plainly reveals the intention of Chitti Babu when he executed the trust instrument. The instrument expressly states that the properties were settled upon the trustee for the benefit of his minor eldest son in exactly the same manner that the son would have received them had they passed to him by survivorship. This wording indicates that Chitti Babu did not aim to endow the SOD with a larger estate than the one the son would have acquired by survivorship at the moment of Chitti Babu’s death. Undoubtedly, had the son taken the estate by survivorship, he would have inherited the impartible Zamindari estate itself, while any other properties that had not previously been absorbed into the Zamindari estate would have retained their status as divisible assets. The trust deed was intended to produce precisely that outcome. Accordingly, the Court concluded that the reliance on the trust deed does not substantiate the plaintiff’s contention that the buildings in dispute were incorporated by Chitti Babu into the impartible Zamindari estate. As a result, the plaintiff’s appeals were dismissed as untenable.
Subsequently, three petitions—C.M.P. Nos. 740/1962, 741/1962 and 1821/1962—were filed in this Court seeking permission to adduce further evidence. The Court dismissed all three applications. No order was made regarding C.M.P. No. 1822/1962, while C.M.P. No. 2631/1962 was partially allowed. By way of a further petition, Defendant No. 1 attempted to raise additional grounds that required consideration before the Court could conclude the appeals. Counsel Mr. Kumaramangalam highlighted that certain properties remained unresolved and that the judgment under appeal contained several erroneous statements that required correction. The appellate judgment had observed that the plaintiff, referred to as the Rajkumar, argued that Exhibit P‑132 could not be treated as a comprehensive list of buildings owned by the Samsthanam because, according to that argument, the Vizianagram Fort and its associated structures—though admittedly part of the estate—were omitted from the exhibit. Mr. Kumaramangalam contested the assertion that the Vizianagram Fort formed part of the estate, noting that the matter concerning the character of the Fort is presently pending before the learned Subordinate Judge at Vishakhapatnam in Original Suit No. 120 of 1948. In that pending suit, Defendant No. 1 specifically claims that the Fort is not an impartible property, thereby challenging the earlier description presented in the appealed judgment.
It was observed that the property in question forms part of the joint family, and consequently the claimant is entitled to a one‑third share in it. Counsel for the respondent, Mr. Pathak, acknowledged that the Appeal Court’s reference to the Vizianagram Fort was erroneous and should be treated as such. Both parties were directed to litigate the issue concerning the fort in accordance with the law before the learned Subordinate Judge, Vishakhapatnam, in O.S. No. 120 of 1948.
Another matter raised by counsel for the petitioner, Mr. Kumaramangalam, concerned the status of the home farm lands. The lower courts had remitted this question to the appropriate Tribunal under sections 12 and 47 of the Act. Mr. Kumaramangalam correctly pointed out that the referral to the Tribunal did not resolve which specific parcels of property constitute home farm lands and which do not. That determination remains unsettled between the parties and may have to be adjudicated on the merits whenever the issue arises.
A further correction was required regarding the trial Court’s statement on items listed under issue No. 4. The trial Court had said that items 33(b) and 98 were not identifiable at all. Mr. Kumaramangalam contested the statement concerning item 33(b), noting that his client had actually filed a claim before the Receiver for that item, identified as Daba Gardens and Bungalow. This contention was also conceded by Mr. Pathak.
Mr. Kumaramangalam additionally sought clarification that, for any property in dispute for which the lower courts have not recorded a specific finding, the parties remain free to approach the Court and have the rival contentions considered. This position was not disputed by the opposite side. In view of the foregoing, the Court directed that each party shall bear its own costs in these proceedings.
Narayana Gajapathi Raj (D. 1845), Sir Vijayarama Gajapathi Raj I (D. 1879), Alak Rajeswari (D. 1901) – Sir Andra Appala Kondayamba I Chittibabu Vizi‑ Gajapathi Raj Maharani of Rewa ram Raj (B. 27‑8‑, D. 23‑5‑1897) (D. 14‑12‑1912) 1893, D. 11‑9‑1922 – Adopted by Alak Rajeswari I 18‑12‑1897 Lalitha Kumari Devi (Defendant No. 4) – Alak Narayana Sir Vijayanada Alak Gajapathi Raj (B. 1902, Gajapathi Raj (B. Rajeswari D. 25‑10‑1937) 25‑12‑1905) II Vidyavathi Devi (defendant No. 3) (defendant No. 2) – Appalakonda yamba. Viziaram Gajapathi II Raj II (B. 1.5.1924) Jaya Devi Visweswa‑ (plaintiff) ra Gajapathi Raj (defendant No. 1).