Legal Provisions Regarding “Impartible Estates” under Hindu Law
(1) Whenever there is dispute as to whether an estate is impartible or not, burden of proof is on who claims it to be impartible by custom, according to which such estate is held by a single member and the ordinary rules of inheritance do not apply to it.
(2) When the existence of any such custom is pleaded, according to which the ordinary rules of evidence do not apply, it has to be clearly proved that the customs were very ancient.
The Supreme Court in Mirga Raja Pushparathi Vijayaram Gajapathi v. P. Vishweswar, observed that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family.
It is only because of the right of survivorship which applies with respect to impartible estate it can be regarded in the eyes of law as a joint family property. The right of survivorship in the present context cannot be confused with mere spes successionis. Unlike spes successionis, the right of survivorship can be renounced or surrendered.
Origin of Impartible Estate:
The impartible estate is said to have originated in three ways—
(i) Properties of such independent chiefs who have gradually in course of time became ordinary Zamindars.
(ii) In some cases, share of the rents and profits of the landed property is held by only a single member of the family, and is descendible to a single heir by primogeniture.
(iii) In other cases estates created by family arrangements which have been protected through generations.
Those estates too come under this category which are by nature indivisible and which are of common use. Family temples, idols, ponds, wells etc. come under this head which can never be divided. In the similar manner unless the residential house is so big to be divided, it has to be used by the members of family one after another.
(d) Those Jagirs which were given for any purpose or for collecting revenue (in Muslim period) which became indivisible estate subsequently.
Incidents of Impartible Estates:
Following are the incidents of an impartible estate—
The custom of promigeniture regulates the succession of an impartible estate, by which the eldest male member holds the property to the exclusion of others. Normally this role is of two kinds, lineal and ordinary. In lineal the eldest in the line is preferred whereas in ordinary the estate goes to the male agnate who is nearest to the common ancestor.
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.
Only upon the ground that some properties have still to be divided or had been left over for partition, the partition cannot be re-opened.
The income of the impartible estate and the accumulations to the income are the absolute property of the holder. Such income is not to be treated as a joint family income nor it is treated as accretion to the estate.
It is possible that the holder of an impartible estate may incorporate whole of his property to the impartible estate so as to make it descendable by a single heir. In such a case unless otherwise provided all other properties acquired by him also form part of this impartible estate. The Orissa High Court has in Bishnu Priya Devi v. Brusabhanu Mohapatra held that where a holder of an impartible estate acquires new assets, in absence of any material to the contrary, such acquisition also would be impartible.
3. Right of Alienation:
A holder of the estate can alienate the estate by will or gift unless prohibited or restricted by any family custom or by the very nature of the tenure. This right can also be exercised by the holder when the family is undivided, but such right can be restricted by the traditions or the family.
Recently the Supreme Court has approved the above view in Thakur Sri Vinaya Singhji v. Kumar Sri Natzvar Singhji and observed that the holder of an impartible estate has the power of alienation not only by transfer inter vivos, but also by a will, even though the disposition by will may altogether defeat the right of survivorship of the junior members of the family.
When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken, if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will. Thus the holder has an absolute unlimited right of alienation. In an another case Sartaj Kunwar v. Devraj Kunwar, the question arose as to the validity of a gift of a part of ‘Raj’. Raj is an impartible estate.
The son of the owner of ‘Raj’ challenged the gift on the ground that except in the case of extreme necessity, the ‘Raj’ being an impartible estate cannot be alienated. The court held the gift of ‘Raj’ is valid because in the present case the owner of ‘Raj’ was an absolute estate in his hands hence he could give it by way of gift. It could be challenged only by a co-owner of the ‘Raj’.
No junior member can claim a right in the impartible estate. Junior members who are neither brothers nor sons of any holder do not have any right of maintenance unless they furnish any adequate proof of custom in this regard.
So far as the son’s right is concerned it is also qualified one. Sons of the holders are only entitled for maintenance when the estate is held as ancestral joint family property and there is a custom for providing maintenance to them. But there is no such custom when the property is a self acquired one.
The above view upheld in Sri Raja Velugoti v. Sri Raja Velogoti by the Supreme Court. The court observed that the junior members do not have any right by birth, nor a right to demand partition, nor to interfere with alienation. They do not have even the right to maintenance. They can claim maintenance only on the basis of some established customs. Where the impartible estate is ancestral the sons can claim the right to maintenance. But in case of its being self-acquired, the holder of the estate is not bound to give maintenance.
The Gujarat High Court in Chandra Kunwar v. Randhir Singh has held that the successor of impartible estate although holds it by the rule of primogeniture, yet he is under a legal obligation to part with certain sum for the maintenance of the widow of the last holder of the estate.
5. Impartible Estate—Whether Coparcenary or Joint Hindu Family Property?
Ancestral impartible estate, as far as the right of common enjoyment and the right to demand partition is concerned, is not a coparcenary property. In such a case if the holder dies intestate, the estate devolves upon the eldest member by survivorship. The Supreme Court’s decision in Desai v. Desai, is important. It was held that if the impartible estate is ancestral, it does not become the exclusive estate of the holder simply because he holds it.
It remains a joint estate of the joint family. The impartibility of estate does not destroy its character of being joint family estate. Nor does it destroy the right to survivorship on account of being in possession of the holder of the estate. It remains a joint estate and according to common law devolves upon that member of joint family who is living jointly with the other members of the family and is seniormost.
Thus unless the younger members of the family do not receive their right either expressly or tacitly, the impartible estate continues to be the joint family property. It is therefore dependent upon the fact as to whether the other members have relinquished their rights or not. In a judgment given by Supreme Court in Dattatiya v. Krishna Rao, it has been laid down:
“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.
The holder of impartible estate can incorporate other properties belonging to him in if so as to make them also impartible and descendable to a single heir by survivorship. It is one of intentions to be proved as a fact whether the accretions are his separate properties or incorporated as part of impartible estate. The intention may be express or implied by conduct or treatment of the properties.
A joint impartible estate is always held by one member and the other members enjoy only the maintenance. But if the junior members forgo their right of maintenance this will amount to separation of the estate. The person alleging separation is required to prove it.
Rules of Succession:
Following rules can be deduced with respect to the succession of impartible estate—
(1) The general rules of succession of partible estate are with some modifications also applicable to impartible estates.
(2) One of the modifications is that out of the successors only one successor is liable to succeed the estate.
(3) In absence of any custom or tradition the rule of promigeniture frunishes a sufficient valid ground of succession.
(4) In absence of any tradition the eldest son means the son who was born earlier, either from the eldest wife or youngest one.
(5) Every male becomes the new member of the descent.
(6) The nearness in blood relationship is no ground of preference. But where the impartible estate is the separate property of the last holder, relatives by full blood shall be preferred to relatives by half blood.
(7) Where a male member is qualified to succeed and is in existence, the females are excluded, but such exclusion is not absolute in nature.
(8) In case of several claimants, persons having superior right are entitled to inherit.
The Hindu Succession Act has abolished the impartible estates except those saved by Section 5(ii) thereof. Thus the rules of succession of impartible estates cease to have force.
The successor to an impartible estate is bound to pay secured and unsecured debts of the last holder according to Calcutta and Allahabad High Courts.