IMPARTIBLE ESTATE: A STUDY

Family Law-II

Submitted by:-

Uditanshu Misra

UID:- SM0117057

3rd year & 5th semester

Submitted to- Dr. Gitanjali Ghosh

National Law University And Judicial Academy, Assam

i
Contents
TABLE OF CASES........................................................................................................................iii
1-INTRODUCTION........................................................................................................................1
2- ORIGIN OF IMPARTIBLE ESTATES......................................................................................4
3- INCIDENTS OF IMPARTIBLE ESTATE.................................................................................5
3.1. Primogeniture and Rules of Succession...................................................................................5
3.2. Accretion...................................................................................................................................6
3.3. Right of alienation....................................................................................................................7
3.4. Joint Property............................................................................................................................8
3.5. Maintenance............................................................................................................................10
3.6. Debts.......................................................................................................................................10
4-MADRAS IMPARTIBLE ESTATES ACT, 1904.....................................................................11
5-CONCLUSION..........................................................................................................................12
BIBLIOGRAPHY..........................................................................................................................iv

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 TABLE OF CASES

1. Appayasami v. Midnapore Zamindari

2. Baijnath Prasad Singh v. Tej Bali Prasad singh
3. Commissioner of Income tax v. Dewan Krishna Kishore (Second Pitaapur Case)
4. Dattatraya v. Krishna Rao
5. Lelanund v. Government of Bengal
6. Martand Rao v. Malhar Rao
7. Mallesappa Bandeppa Desai vs Desai Mallappa And Others
8. Mirza Raja Shri v. Shri Pushavathi
9. Nagaganti v. Venkatachelapati
10. Naraganti v. Vengama Naidu
11. Promod v. State Of Orissa
12. Rajah Velugoti Kumara Krishna v. Rajah Velugoti Sarvagna Kumara
13. Raja jogendra v. Nityanund
14. Raja Venkata Surya Rao v. Court of Wards (First Pittapur Case)
15. Sartaj Kauri v. Deoraj Kauri’s
16. Shibaprasad singh v. Rani Prayag Kumari Debi
17. Thangavelku v. Court of Wards
18. Thyagaraja sundara v. Sevuga Pandya
19. Tipperah case
20. Venkata jagannadha v. Veerabhadraya
21. Yarlagadda Mallikarjuna v. Yarlagadda durag

STATUTES

1. 1904-Madras Impartible Estates Act

2. 1956-Hindu Succession Act

TABLE OF ABBREVATIONS

iii
1. AIR All India Reporter

2. SCC Supreme Court Cases

3. Sec Section

4.M.P Madhya Pradesh

5. Ibid Ibidem

6. ed. Edition

7. pp. Pages

8. SC Supreme Court

9. Vol. Volume

10. In re In the matter of

11. PC Privy Council

12 v. Verses

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 CHAPTER-1

INTRODUCTION
A property which is indivisible in nature is called an Impartible Estate. The eldest member is
said to have control over such property. It cannot be considered as a separate property but is said
to have rested upon the eldest member of the family by a special custom or a law in place . It
consists of estates which could be ancient Zamindaris which were of the characteristic of Raj or
estates which were under the control of military service tenure (palayams) or could be royal
grants such as Saranjams or Jagirs. It also consists of property, which by any grant or special
custom can devolve onto a single heir.1
A joint family property is subject to partition and since an impartible property can be a part of
the joint property, partible property and joint property cannot be used interchangeably. An
impartible estate has a lot of restrictions in the matter of rights, even though it is a kind of
property which is joint in nature and belongs to every member equally.
A mere agreement or consent of the existing family members cannot lead to the creation of an
impartible estate. An impartible estate cannot be made partible in order to proceed with the
matters of succession. It is not possible to establish this except under the Crown grant or any
other statute in place.

There can be another situation where the property is impartible. It is when the property is allotted
by the State to the individual as a consideration for discharging certain duties or sometimes as
remuneration for an office. example f such a property is ghatwali tenure in Beerbhoom In the
case of Venkata jagannadha v. Veerabhadraya it was held that that an office of a village
accountant which has become hereditary over the period of time can nit be divided and therefore
is an impartible estate.
Similarly an estate provide by the state to a man of a certain rank to main his rank is indivisible
in nature.
One who says that a particular estate is impartibe and therefore will descend upon a single heir
has to prove the same either by the nature or by any special family custom. The Madras

1
Martand Rao v. Malhar Rao, (1928) 30 BOMLR 251, (India).

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Impartible Estates Act, 1904 gives a list of the estates which are declared to be impartible. But
the same also says that when a stranger (one who is outside the family) becomes the owner of an
impartible estate by purchasing it, then the estate no longer remains impartible.
The research paper here in the first chapter discusses the origin of Impartible Estate. Impartible
estate are said to be created from customs which were prevalent much before the British Raj in
India. It has described the necessity to use the concept of Impartible Estates in Zamindari,
Military tenure service, raj, jagirs etc
The research paper in the second chapter discusses the incidents of Impartible Estate. The rules
applied to Impartible Estate are different from the ordinary laws that are applicable in case of
partible property. Therefore, the rules of succession, maintenance, joint estate etc are different.
The researcher has also included the Madras Estates act of which was applicable to only the
presidency of Madras but many other rules were derived from there and was applicable to all the
Impartible estates.
The researcher concludes his paper by stating the difference between Partible and Impartible
estate that she has found during her research.

Aim(s)
The aim of the research project is to understand the meaning and applicability of Impartible
Estate and how are these properties different from others as well as to research about the present
condition of such concept.

Objectives
 To understand the meaning of the concept of Impartibe estate and research about its
origin in the ancient times;
 To understand the rights and liabilities of the holder of an impartible estate; and
 To understand how the rules of succession and maintenance in impartible estates are
applicable and how they stand different from other properties that are partible.
Scope and Limitations
The Scope of the research paper is limited to understand the origin and incidents of Impartible
Estate. The researcher also taken into consideration, the rules from Madras Impartibe Estates act,
1904.

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Literature Review
1. Ghose’s book2 brings a blend of complete and well researched aspects of Impartible
Estates. It also discusses the evolution of impartible properties over time. The book has also
given an overview of the judicial approach of the concept of impartible estate. The book has also
provided a comparitive study between partible and impartible estates. It also gives rules
regarding both types of properties. The book also gives a brief insight about the 1904 Act that
was helpful in making this paper.
2. Diwan’s book3 has given a very brief insight of impartible estate and how it has origined.
The book also discusses various rules regarding Promigeniture, Maintenance, Joint Property,
Right of Alienation, etc. The book also provides an insight of several judicial interpretations that
have been given over time regarding the concept of Impartible Estate.

Research Methodology
Approach to Research
Doctrinal method was opted in order to conduct the research for the topic. Several books and
online sources were referred while making this paper. Doctrinal method is mostly library based
research and is mostly related to books, texts and documents. The researcher has resorted to
descriptive as well as analytical mode of Doctrinal research.
Sources of Data Collection
Several library based sources as well as online sources have been resorted to make this paper.
Mode of Citation
20th Edition of Blue Book citation method has been opted in order to maintain the uniformity of
the paper.
.

2
JOGENDRA CHUNDRA GHOSE, LAW OF IMPARTIBLE PROPERTY INCLUDING ENDOWMENTS,(Forgotten Books
rd
Publication, 3 ed., 2018).
3
PARAS DIWAN, MODERN HINDU LAW, (Allahabad Law agency, Faridabad, 24th ed.), ( 2018).

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 CHAPTER-2

ORIGIN OF IMPARTIBLE ESTATES

Though the impartible estates are famous to have been created by custom but its main origin is
lies in the British rule and has got recognition through the acts of the state. Such properties in
the olden times, were used by the British for their own benefit .These instruments were used
mainly by the East India Company to strengthen their rule in India. The main aim behind carving
these kingdoms were nothing but good governance. These agencies helped the Indian ruler in
suppressing the common masses. There were about 600 princely states which could become
independent states in terms of the Indian Independence Act. The majority of lands belonged to
Zamindars and Jagirdars. A majority of such property was impartible in nature. They were
already there because of existing family norms and customs. No such impartible estate can be
created today there by custom or family arrangement neither can the holder of an impartible
estate create other impartible estate for the benefit of the junior branches of his family. The
burden of proof to prove that an estate is an impartible one lies on that person.4
Before 1956, permanent impartible estates got some recognition in Hindu law. But post June 17,
1956 when the Hindu Succession Act, 1956 came into action, an estate of such kind does not
exist anymore. Section 5 of the Hindu Succession act abolishes an estate of such kind except for
those falling under Sec 5(ii). Sec5(ii) says that  any estate which descends to a single heir by the
terms of any covenant or agreement entered into by the Ruler of any Indian State with the
Government of India or by the terms of any enactment passed before the commencement of this
Act.5

4
JOGENDRA CHUNDRA GHOSE, THE HINDU LAW OF IMPARTIBLE PROPERTY: INCLUDING ENDOWMENTS, ( Forgotten
Books Publications, 3rd Ed), (2018).
5
HINDU SUCCESSION ACT, 1956. (Sec 5 ii).

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 CHAPTER-3

INCIDENTS OF IMPARTIBLE ESTATE

3.1. Primogeniture and Rules of Succession

Mostly, an impartible estate descends by the rule of primogeniture. Primogeniture implies that
the eldest son of the family gets to inherit the property. The meaning of eldest son is that he must
be the senior most son and not the son of the
eldest senior of the family unless it is conventional in the family to prioritize the sons by
seniority of their existing members by some family custom. In Ramaswami’s case the son that
was conceived by the senior wife was given priority over the son who was actually elder but was
born to a wife junior. The burden of proof lies upon the person who is defeating the general rule
of Primogeniture to the special family custom.

In a conflict between an adopted son and a son born subsequently, the son born subsequently is
prioritized. The eldest son defeats the interest of all the other existing sons and a son younger is
preferred next after the first son’s interest has been fully exhausted. When an elder son excludes
all the others the exclusion goes on to continue as long as there are lineal heirs who were
competent to succeed him.
In a conflict between a legitimate son and an illegitimate son, the legitimate son succeeds. The
only chance of an illegitimate son succeeding is when the legitimate son dies without leaving an
heir behind. In that case the illegitimate son inherits by survivorship. But this only happens when
the property is of the father and not of the undivided family which has other members. In case of
the undivided family, the property devolves to the nearest member of the coparcenary and not
onto the illegitimate son. The widow also excludes an illegitimate son.
In case of a partible property, nearness of blood is no criteria to inherit and same is the case for
an impartible property. if the An example for this could be a brother of half blood would be
preferred over a full blood brother half blood has an edge over the full blood in the aspect of
seniority. But when the impartible estate was a separate property of the holder, in that case the
brother of full blood is going to succeed. In the Dayabhaga School of law, there is no such rule
of survivorship, therefore, the full blood would exclude every other member present.

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An impartible property shall devolve by survivorship in the case of joint family property and the
senior male member dies without any male issue. The coparcener nearer in the line of seniority
has a higher chance of succeeding than the coparcener nearer in blood.
When the impartible estate has become the separate property of the holder, his heirs would
inherit the property and the notion of surviviorship no longer applies, but when the daughter,
widow, mother or daughter’s son is not present then the property is inherited by the ones nearest
in blood. When there exist several collaterals of the same degree, then the seniormost gets
priority over every other member.
Case: Hare Krishna Sahu v. Bhagirath Sahu6
The Orissa High Court has held in Hare Krishna v. Bhagirath Sahu, that “mere ‘jesthansa’ as
such de hors of any other consideration, has no sanction of law; but inequality of shares should
not be equated with ‘jesthansa’ to afford a ground to impeach a partition deed otherwise valid.
There may be various reasons why a member is given a bigger slice.”
The partition cannot be re-opened merely on a ground that some properties are still left to be
divided.
The accumulations made and income generated from an impartible property is an absolute
interest of the owner. Such property is not to be treated as someone’s join property or an
accretion to the estate.

3.2. Accretion

In order to make a property descendible by a single heir, a person may incorporate his entire
property into an impartible estate. Unless otherwise provided, in such a case, the property may be
considered as an impartible one. The Orissa High Court has in Bishnu Priya Devi v. Brusabhanu
Mohapatra7 held that where a holder of an impartible estate acquires new assets, such acquisition
also would be impartible, if there is no other material on the contrary.

3.3. Right of alienation

A person holding an estate can alienate the estate by the way of will or gift unless there is
contrary in the nature of tenure or the family custom restricts it. This right is also exercisable by
6
Hare Krishna Sahu v. Bhagirath Sahu,AIR 1975 Ori 97 (India).
7
Bishnu Priya Devi v. Brusabhanu Mohapatra , AIR 1976 Ori 163.

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the holder in case of an undivided family, but such right is restricted only by the traditions of the
family.
Recently, the Supreme Court has agreed upon the above view in Thakur Sri Vinaya Singhji v.
Kumar Sri Natzvar Singhji8 and observed that the person who holds an impartible estate has the
power to alienate not only by transfer inter vivos, but also by a will, even though the right of
survivorship of the junior members of the family may be defeated by the disposition of will.
When under some circumstances the right of a coparcener to inherit by survivorship can get a
defeat, no exception may follow, if the right of survivorship of an impartible estate, for junior
members to succeed to it gets defeated by the one who holds such property thereof by disposition
by a will. Thus the one who holds such property has an absolute unlimited right of alienation. In
the case of Sartaj Kaur v. Devraj Kaur9, the question arose as to the validity of a gift of a part of
‘Raj’. Raj has been considered an impartible estate.
The gift was challenged by the owner of the ‘Raj’ on the ground of extreme necessity being the
sole ground to alienate such Raj. The court was of the opinion that the gift of ‘Raj’ is valid
because in the instant case the holder of ‘Raj’ had an absolute interest in his hands related to the
property; hence he could dispose it by way of gift. It could be challenged only by a person who
owns the ‘Raj’ jointly.
An impartible estate may be transferred to a stranger but as a consequence it ceases to be the part
of the Joint Hindu Family and no other laws regarding the impartible estates are now applicable
to such property,. The property is now devolved according to the ordinary laws of succession.
The holder can also alienate the property by creating widow’s estate but on the death of such
widow, the property now devolves upon the heirs of her deceased husband on upon the heirs of
the widow.

3.4. Joint Property

In Shibaprasad’s case10 it was held that just because the estate is said to be impartible, it does not
make it an exclusive or separate property of an individual. Where the property has been disposed
to the holder and is ancestral in nature, it is the joint property of the undivided family.

8
Thakur Sri Vinaya Singhji v. Kumar Sri Natzvar Singhji, 1985 AIR 1650 (India).
9
Sartaj Kaur v. Devraj Kaur, (1935) 37 BOMLR 805 (India).
10
(1932) 34 BOMLR 1567(India).

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The judgement in Sartaj Kaur’s11 case and the first Pittapur case12 said that an impartible estate
is not a joint family property but the judgement of the privy council in Shiba Prasad’s case,
Collector of Gorakhpur case have established that an impartible estate is a joint family property
irrespective of the individual’s right of alienation or right of partition.
The general law still prevails in case of an impartible estate but only to the extent where a
custom in place does not supersede such law.
When an ordinary joint family property is taken into consideration, one has the right of having a
partition, right to restrict the alienation except by the Karta in case of necessities, the right of
survivorship as well as the right to maintenance. The right of partition does not apply in case of
an impartible estate. The right of alienation and maintenance have a separate stand altogether in
case of impartible estate as described in Sartaj Kauri’s case13 and second Pittapur case. So, the
ordinary laws will not be applicable in case of these rights but in case of right to maintenance the
ordinary laws will be applicable as it does not take a different stand. The concept of impartible
estate has emerged from customs. The right of a coparcener in a joint family does not exist in
impartible estates but the right of the eldest male member to inherit by survivorship does exist.

The right to maintenance in case of an impartible estate gets limited but has a center point on the
joint ownership of the junior members of the family as these members hold Zamindari lands for
maintenance could be considered as joint estate with the Zamindar in possession.
Therefore, an impartible property after this judgement in Chalapali’s case was considered to be a
joint family property with a right to maintenance to the members.
An impartible estate no longer continues to be a part of the joint family property when the junior
male members terminate their chance of succeeding the estate. There must be a clear expressed
or implied intention for the same. Mere providing of separation in food and worship is not
enough criteria to prove that an impartible estate, which is ancestral, has no longer continued to
be a part of the joint family property. When some of the villages have given the consent to right
to maintenance of the junior male members of perpetuity, it does not mean that the estate is no
longer imparitble neither does it give the right to the Zamindar to consider the property as his
own separate property. The renunciation of just one of the junior members is not sufficient and

11
Supra Note 6.
12
(1899) 22 Mad. 383(India).
13
Supra Note 6.

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the interest must be renounce by everyone for the property to cease to be a part of the joint
family property. Even when all the other property of the joint family is partitioned, it does not
give make the impartible Estate a separate one.
Case: Mallesappa Bandeppa Desai v. Desai Mallappa And Others 14
The Supreme Court’s ratio in Desai v. Desai holds great referential value. It was held that if the
impartible estate is ancestral in nature, it should not be considered as the exclusive estate of the
holder because of the fact that possesses of it.
It belongs to the joint family as their joint estate. It remains to be a joint family estate even
though it is impartble in character. Even though it belongs to the holder of the estate, it does not
destroy the right to survivorship. It remains a joint estate and according to common law devolves
upon that member of joint family who is the seniormost and is living with other members of the
family.
Thus, the impartible estate continues to be a joint family property if the younger member does
not receive his right either expressly or tacitly. It also depends upon a right as to whether other
members have relinquished their right or not. In a judgment given by Supreme Court in
Dattatraya v. Krishna Rao15, it has been judged that:
“The income of an impartible estate is not income of the undivided family but is the income of
the present holder, notwithstanding that he has sons or brothers from whom he is not divided.
The very facts that the son’s or brother’s right to maintenance arises out of the eldest brother’s
possession of impartible estate and is a right to be maintained out of the estates, do not make it a
right of a unique or even exceptional character or involve the consequences at Hindu law that the
income of the estate is not the holder’s income.”16

3.5. Maintenance
In the second Pittapur’s case, Lord Dunedin opined that the junior members in a family do not
have the right to maintenance barring the family custom, and no one lower than the first
generation could have a claim over the right to maintenance from the last Raj. The sons receive
customary right of maintenance normally so it gets evident that there is no need to prove the
same through custom. But then in Collector of Gorakhpur’s case the ratio stated that the junior

14
Mallesappa Bandeppa Desai v. Desai Mallappa And Others, 1961AIR 1268(India).
15
Dattatraya v. Krishna Rao, 1991 AIR 1972 (India).
16
Ibid.

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member of the family have a right to maintenance, the right is based on the joint ownership of
the junior members of the family. But the member of the family keeping the brothers and sons
aside, are not entitled to such property unless a prevalent custom demands so. Only such junior
member who could not maintain himself, has entitlement to claim maintenance. As has been
established in Thangavelku v. Court of Wards17, the illegitimate son of the last holder is entitled
to be maintained under his father’s impartible estate. Though if the property is a separate
property, the eldest son does not have an entitlement.
Case: Rajah Velugoti Kumara Krishna v. Rajah Velugoti Sarvagna Kumara18
The court observed that the junior members do not have any right by birth, nor a right to interfere
with alienation or a right to partition. They even do not have the right to maintenance. They can
claim maintenance only if there is a custom prevalent. Where the impartible estate is ancestral,
the sons have an entitlement over the right to maintenance. But in case of it being self-acquired,
the responsibility of giving maintenance is not on the holder.

3.6. Debts
The successor to an impartible estate has the duty to pay secured and unsecured debts of the
preceding holder according to Allahabad High Courts and Calcutta High Court.

CHAPTER-4

MADRAS IMPARTIBLE ESTATES ACT, 1904

Sec 4(1) of the act says that the proprietor of an impartible estate shall not have the capability of
alienating or binding by his debts, such estate or any part thereof beyond his own life time unless

17
Thangavelku v. Court of Wards, (1946) 2 MLJ 143(India).
18
Rajah Velugoti Kumara Krishna v. Rajah Velugoti Sarvagna Kumara, 1970 AIR 1795 (India).

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the alienation shall be made, or the debt incurred, under circumstances which would entitle the
managing member of a joint Hindu family, not being the father or grandfather of the other
coparcener, to make an alienation of the joint property, or incur a debt, binding on the shares of
the other coparceners independently of their consent.19
Therefore, the act does not agree with pious obligation and father’s power to sell a property for
antecedent debts as well as considers impartible property as joint family property. The property
alienated before the commencement of this act is not covered within the ambit of this act. The act
also is not applicable to a holder who got the possession of an impartible property because it
devolved to him by will or was gifted to him.
The Madras estates act ,1948 was passed which repealed the permanent settlement, the rights of
landholders in permanently settled and then the Ryotwari settlements was introduced sec 66(1)
of the act affirms the repealing of the madras impartible estates act.

Sec. 9 of the Madras Impartible Estates Act says that the right to maintenance of joint members
which is based on the joint ownership.
The Madras Impartible Estates Act has now been renamed to Tamil Nadu Impartible Estates Act,
1904.

CONCLUSION
A property which could be indivisible by its very nature can be considered as an impartible
estate. Such property becomes indivisible by some special custom prevalent in the family.
Though, such property has its origin under the British Rule. Impartible estates have evolved over

19
Mirza Raja Shri v. Shri Pushavathi, 1964 AIR 118 (India).

11
time starting from British rule, continuing to be the part of the Zamindari system and later
became an act in itself called the Madras Impartible Estates Act. Section 5 (ii) also gives an
essence of the concept of Impartible Estates. Mostly, an impartible estate is said to devolve upon
the senior most heir of the family unless a special custom provides the contrary to it. The concept
of Accretion may seem debatable as it might be considered vague to convert the entire property
of an individual into an impartible property. The rules of succession in case of impartible
property have been framed, keeping in mind the rule regarding primogeniture. Where a property
is ancestral in character and has been disposed off, it shall be considered as a joint family
property. A person holding an estate can alienate the estate by the way of will or gift unless there
is contrary in the nature of tenure or the family custom restricts it. Since, in the case of an
impartible estate, the property devolves upon the senior most male member, the property entirely
rests upon the decision of such member. The judiciary in different cases has laid down different
decisions regarding the junior male members having the right to maintenance. The Madras
Impartible Estates Act has given a structures form to the concept of Impartible Estates.
According to the act, a person does not have the right to alienate his property beyond his life
unless there has been a debt which necessarily has to be paid. The act also does not agree to the
concept of pious obligation as well. The Madras Impartible Estates Act has repealed several
settlements prevalent under the British era.
The concept of impartible estates has a mere existence as a concept in the modern times as there
has not been any prevalent case that has come forward in recent times. Still, the concept has due
importance and has to be read by any scholar of Hindu law in order to understand other close
provisions of law.

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 BIBLIOGRAPHY
Books
 Jogendra Chundra Ghose: The Hindu Law of Impartible Property: Including Endowments;
2018 Edition.
 Maynes, TREATISE ON HINDU LAW AND USAGE, 17th ed., 2014
 Paras Diwan, MODERN HINDU LAW, 24th ed., 2018, Allahabad Law agency, Faridabad

Websites
 http://www.shareyouressays.com/knowledge/definition-and-ingredients-of-impartible-
estates-under-hindu-law/117173
 http://www.shareyouressays.com/knowledge/legal-provisions-regarding-impartible-estates-
under-hindu-law/117907
 https://archive.org/stream/hindulawimparti00ghosgoog/hindulawimparti00ghosgoog_djvu.txt
 http://www.shareyouressays.com/knowledge/what-is-impartible-property-under-hindu-
law/117366
 http://www.shareyouressays.com/knowledge/what-is-impartible-property-under-hindu-
law/117366

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