Chamier, C.J:— The respondent obtained a money-decree against Jang Bahadur Singh. He applied for execution be the same, but before attachment could be effected Jang Bahadur Singh died and his property passed into the possession of his brother, the appellant. The respondent then applied for attachment of some of the immovable property of the deceased, alleging that the appellant is the legal representative of his brother and that the property is liable in his hands for the debts of the deceased. The appellant put forward objections which were allowed by the first Court but were rejected by the District Judge. Hence this appeal.
2. The property in question is a portion of an impartible estate which has been in the family of the appellant for several generations. The family is governed by the Mitakshara and it may be assumed that the appellant and his brother were at the time of the latter's death living in union as members of a joint family, though this does not appear to be admitted by the respondent. The question whether in these circumstances the estate is liable in the hands of the appellant for the debts of the deceased is one on which there is considerable conflict of judicial authority in the High Courts in India. The Allahabad High Court in two cases have answered the question in the negative, on the ground that such an estate is joint family property and passes to the person next entitled by right of survivorship: see Harpal Singh v. Bishan Singh*(2): sea also Baijnath Prasad Singh v. Tej Bali Singh(3), where the decisions in those two cases were approved. The same view was taken by the Calcutta High Court in Kali Krishna Sarkar v. Baghunath Deb(4) and in Gur Prasad Singh v. Dhori Bai(5), and by the Madras High Court in Naahiappa Chettiar v. Chinnayasami Naieker(6). The contrary view was taken by the Calcutta High Court in Ram Das Marwari v. Tekait Braja Behari Singh(7) and by Madras High Court in Rajah of Kalahasti v. Achigadu(8) and in Zamindar of Karvetdnagar v. Trustee of Devasthanams(9).
3. Broadly speaking, it may be said that the decision in all these cases turned upon the meaning and effect of the judgments or passages in the judgments of their Lordships of the Privy Council in several well-known cases. Those Judges, who hold that an impartible estate held by one member of a joint family is not liable as assets of the deceased in the hands of his successors to answer for the debts of the deceased, are of opinion that their Lordships have ruled that such an estate passes on the holder's death by survivorship just as in the case of partible property, with the result that in the case of a decree for money, unless an attachment has been effected in execution in the lifetime of the debtor, the estate passes to the next holder free of any claim on the part of the decree-holder. On the other hand, those Judges who hold that an impartible estate is liable as assets of the deceased in the hands of his successor to answer for the debts of the deceased are of opinion that all that their Lordships have laid down is that such an estate passes to the person or one of the persons who would have taken it by survivorship if it had been partible property. The earliest judgment of their Lordships referred to in the above cases is that in the Shivagunga case (Katama Natchiar v. Rajah of Shivagunga(10)) in which Turner, L.J, said:
“If the zemindar at the time of his death and his nephews were members of an undivided Hindu family and the zamindari, though impartible, was part of the common family property, one of the nephews was entitled to succeed to it on the death of his uncle. If, on the other hand, the zemindar, at the time of his death, was separate in estate from his brother's family, the zemindari ought to have passed to one of his widows, and failing his widows to a daughter, or descendant of a daughter, preferably to nephews, following the course of succession which the law prescribes for separate estate.”
4. The next in order of date is that in Stree Raja Yanumula Venkayamah v. Stree Raja Yanumula Boochia Venkondora(11), in which an impartible estate is spoken of as “part of the common family property, though impartible.” The third judgment is that in Doorga Persad Singh v. Doorga Kunwari(12), in which their Lordships said:
“The impartibility of the property does not destroy its nature as joint family property or render it the separate estate of the last holder, so as to destroy the right of another member of the joint family to succeed to it upon his death in preference to those who would be his heirs if the property were separate”
5. The fourth judgment is that in Sivagnana Tevar v. Periasami(13), in which the following passage appears:
“He would, therefore, necessarily be joint in that estate, so far as was consistent with its impartible character, with his two younger brothers, the latter taking such rights and interests in respect of maintenance and possible rights of succession as belong to the junior members of a joint Hindu family in the case of a Raj or other impartible estate descendible to a single heir. Hence there can be no doubt that the estate, though impartible, was up to the year 1829 in a sense the joint property of the joint family of the three brothers.”
6. The fifth judgment is that in Raja Rup Singh v. Rani Baisni(14), in which their Lordships, dealing with
“an ancient ancestral impartible estate which had always been held by a single member of the family at a time,”
“The Mitakshara is the Hindu law of inheritance in the district in which the estate is situate and it is clear that according to that law……the plaintiff as the uncle of the deceased Raja, and the surviving member of the joint-family was entitled to succeed to the ancestral estate.”
7. The sixth and last judgment which need be noticed is that in Jogendro Bhupati v. Nityanand Man Singh(15), where their Lordships said:
“Now it may be well first to dispose of a point arising out of the fact that this is an impartible Raj, which it is admitted to be. According to the decision in the Shivagunga case, which, as their Lordships understand, is not now disputed, the fact of the Raj being imparble does not affect the rule of succession. In considering who is to succeed on the death of the Raja, the rules which govern the succession to a partible estate are to be looked at, and, therefore, the question in this case is what would be the right of succession, supposing instead of being an impartible estate it were a partible one. The case in the Bombay High Court appears to have been very similar to the present. There the two sons, the legitimate and the illegitimate, survived the father and upon the death of the legitimate son the question was whether the illegitimate son was entitled to succeed to the whole of the estate……If that be so, their Lordships cannot Bee any reason for holding that the illegitimate son would not take by survivorship in the case of the death of the legitimate son…………Their Lordships are of opinion in the present case that the plaintiff was entitled to succeed to the Raj by virtue of survivorship.”
8. There are other cases also in which their Lordships have referred to the right of a member of a joint family to succeed to an impartible estate as a right to “succeed by survivorship,” e.g, Ram Nundun Singh v. Janki Koer(16), and Kachi Kaliyana Bangappa v. Kachi Yuva Rangappa(17). The passages quoted from the first four judgments just referred to were regarded by the Allahabad High Court in Sartaj Kuari v. Deoraj Kuari(18), as justifying the view that an impartible Raj held by the plaintiff's father should be treated as joint family property in which the plaintiff, who was living in union with his father, had an immediate present interest entitling him to challenge a gift of 17 villages made by the father. Their Lordships of the Privy Council held otherwise. They pointed, out that,
“the reason for the restraint upon alienation under the Mitakshara Law is inconsistent with the custom of impartibility and succession according to primogeniture. The inability of the father to make an alienation arises from the proprietary right of the sons……The property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is, in their Lordships' opinion, so connected with the right to a partition that it does not exist where there is no right to it. In the Hansapore case Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee(19), there was a right to have Babuana allowances as there is in this case, but that was not thought to create a community of interest which would be a restraint upon alienation. By the custom or usage the eldest son succeeds to the whole estate on the death of the father, as he would if the property were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family and to hold that there is a joint ownership which is a restraint upon alienation. It is not so difficult where the holder of the estate has no son, and it is necessary to decide who is to succeed.”
9. Their Lordships also said with reference to the passages relied upon by the High Court:
“The Judges of the High Court have quoted in support of their view passages from several judgments of this Committee. In all of them the question was as to the succession to the property on the death of the Raja or zamindar, and it was held that for the purpose of determining who was entitled to succeed, the estate must be considered as the joint property of the family.”
10. The judgment in this case appears to me to settle the question; but if any doubt remains as to the meaning of their Lordships in speaking of the right of a joint family to succeed to an impartible estate “by survivorship” or of an impartible estate as being “in a sense joint family property,” it is in my opinion removed by a consideration of their judgments in the Hansapore case, Baboo Beer Pertab Sahee v. Maharajah Bajendra Pertab Sahee, the Pittapur case, Rama Krishna Rao v. Court of Wards(20), and the case of Tara Kumari v. Chaturbhuj Narayan Singh(21), and the principles underlying the decisions in those cases. In the Hansapore case, in which the property in dispute was an impartible Raj, their Lordships upheld a will by the Raja in favour of one member of his family to the prejudice of his other descendants, saying:
“There are no inchoate rights of inheritance in the junior members of the family. They did not by birth acquire that community of interest with their grandfather in his self-acquired lands which is the foundation of the supposed restriction on his power and cessante rations legis cessat ipsa lex.”
11. In the Pittapur case, the question was whether the Raja had power to alienate an impartible estate by will to the prejudice of his son. Their Lordships held that he could do so as the son was not a coparcener with his father. In the third case the holder of an impartible estate having separated from his brother died leaving a widow who claimed the estate. Their Lordships said:
“The learned Judges of the High Court considered that there could have been no complete separation of the joint family as the impartible estate…. had not been partitioned between Thakur Ranjit Narayan Singh and his brother Bhupat Narayan Singh. Those learned Judges overlooked the fact that Bhupat Narayan Singh and his son bad no coparcenary rights in the impartible estate, and no rights in that estate which entitled them or either of them to a partition of the impartible estate. They could not have prevented Thakur Ranjit Narayan Singh from alienating that impartible estate in such a way as to determine any contingent interest they had in it under the custom.”
12. These three cases seem to me to make it clear that even in a joint family where there is an impartible estate, a younger member has not that community of interest with the holder of the impartible estate which alone could entitle him to take the estate by right of survivorship as in the case of a partible estate, and that all that their Lordships of the Privy Council have all along intended to lay down is that for the purpose of ascertaining the person entitled to succeed to an impartible estate you must have resort to the rule which would have governed the succession if the estate had remained partible. It appears to me to be impossible to reconcile the repeated decisions of their Lordships that the other members of a joint family have no coparcenership or community of interest with the members holding the impartible estate with the view that any of those members has a right to succeed by survivorship. The only ground on which a person can be entitled to succeed to another by right of survivorship is community of interest between him and the deceased. A right to maintenance is not sufficient. It appears to me that when their Lordships spoke of an impartible estate held by a member of a joint family passing “by survivorship” they were merely employing a convenient method of indicating the rule of succession, and that the existing conflict of authority in the High Courts has arisen from some Courts having treated a compendious expression as an exhaustive statement of the rule. Their Lordships have repeatedly ruled that there is no real coparcenership or community of interest between the holder of an impartible state and the other members of his family and, therefore, as it seems to me, they cannot have intended to lay down that an impartible estate passes by survivorship in the sense in which that term is employed with reference to partible joint property. In my opinion Jang Bahadur Singh was sole proprietor of the estate while he lived and the appellant had no interest in it other than a right to obtstin maintenance out of it. When Jang Bahadur Singh died, the whole estate passed to the appellant as his heir according to the rule by which the appellant would have taken it had it been partible property. I agree with the judgments in Rajah of Kalahasti v. Aohigadu and Zamindar of Karvetnagar v. Trustee of Devasthanam, which appear to me to be in consonance with the decisions of the Privy Council in Sartaj Kauri v. Deoraj Kuari. Baboo Beer Pertah Sahee v. Maharajah Bajender Pertab Sahee, Rama Krishna Row v. Court of Wards and Tara Kumari v. Chaturbhuj Narayan Singh. I would, therefore, dismiss this appeal with costs. Hearing fee five gold mohurs.
13. Chapman, J.:— I concur. After the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari, it is impossible to say that the interest of the holder of an impartible estate dies with; him, for a grant made by him for purely personal reasons conveys an state which continues after his death and it is only upon the ground that the interest of a, deceased member of a joint family has died with him that it has been held that such an interest is not assets in the hands of the other members. I agree with the order as to costs.
14. Roe, J.:— “The obligation to pay the debts of the person whose estate a mars has taken is declared with equal positiveness.” (Mayne on Hindu Law and Usage, Edn. 8, S. 327). If the reason of the rule that joint family property is not liable for debts contracted by a single member of the family lay in the fact that every member of the family has a substantial interest in the whole of the common property, the answer to the question before us would be without difficulty. In, an impartible estate the junior members: of the family have no substantial interest in any part of the property. The reason of the rule would disappear. The rule itself would disappear. But in Udaram Sitaram v. Banu Panduji(22), the reason for the rule was that the right of a son to a share in the joint ancestral property had died with him and that his share having survived to his father was no longer a subject upon which execution should operate; and in Sudaburt Pershad Sahoo v. Foolbash Koer(23), the reason for the rule given by Peacock, C.J, was much the same. In Suraj Bunsi Koer v. Sheo Pershad Singh(24) and in Balgobind Das v. Narain Lal(25), these: cases were cited with approval by the Judicial Committee. It becomes necessary, therefore, to inquire in the case before us whether the interest of the holder of an impartible estate passes to his successor by survivorship. I entirely concur in the conclusions of the learned Chief Justice that interest does not piss by survivorship. It is to be particularly noted that in discussing the question whether the whole interest of the father in an impartible estate could be made liable for his debts after his death, Sir Barnes Peacock in delivering the judgments of the Judicial Committee in the case of Muttayun Chatti v. Sangali Vira Pandia Chinnatambiar(26) speaks throughout of the interest of the father passing to the son by inheritance and of the impartible estate as the heritage of his son, and the order in Council made upon this judgment declares that
“the defendant, as the son and heir and legal representative,… do pay…out of the property… which came to the defendant by heritage the amount due.”
15. I agree that in the case before us the interest of the judgment-debtor has passed to the appellant not by survivorship but by inheritance. The estate is assets of the deceased judgment-debtor in the hands of the appellant and is, therefore, liable in execution of the decree against the deceased judgmant-debtor.
16. I concur in the order proposed by the learned Chief Justice.
V.S/R.K
17. Appeal dismissed.