Raja Muvva Gopalakrishna Yachendra and Others versus Raja v. v. Sarvagna Krishna Yachendra and Others

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1'62

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N....U.r, II.

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280 SUPREME COURT REPORTS (1963} SUPP. RAJA MUVVA GOPALAKRISHNA YACHENDRA AND OTHERS

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v.

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RAJA V. V. SARVAGNA KRISHNA YACHENDRA AND OTHERS (And Connected Appeals)

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(S. K. DAS, J. L. KAPUR, A. K. SARKAR, M. HIDAYATULLAH and RAGHUBAR DAYAL, .JJ.)

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Estates Abolition-Apportionment of compensationLegi&lative competence-Entries 9, 21, List 2, Entry 7, Li"t 3, Government of India Act, 1935-Madras Estates (Abolition&, Oonve,.ion into Ryotwari) Act, 1948 (Mad. XXVI of 1948), ... 3,41,45,54.

¶8

Consequent upon the notification under the Estates Abolition Act, the impartible Estate of Venkatagiri vested in the Government and on claims made under s. 41 of the Act, the tribunal determined advance compensation to the various persons interested. On appCill against the decision of the Tribunal it was contended that-(!) the impartible character of the Estate ceased when the estate vested in the Government; (2) the compensation did not bear the character of impartibility as ii became the property of the joint family ; (3) s. 45 was a law altering the rights of distribution of property amorni; the members of a joint family and wa• beyond the legislative compctenc;e of the State Legislature ; (4) the law was discriminatory; (5) the appellants were not maintenance holders but =diton; (6) the amount of "Paishkush" payable to the Government ought not to have been deducted from the compensation in calculating the amounts payable to the appellants, as the holder of the estate alone was liable to pay it.

¶9

Htld, that the lint qu.stion was raised directly in another proceeding and it was not necessary to decide it in these proceedings which were only in respect of advance compensation.

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Htld, further, that in respect of such compensation the proportion of distribution could only be in accordance with the provision' of sub-s. 2 of s. 45 of the Act by which alone the appellants were entitled to claim advance compensation.

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281

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·~ :j

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2 s.c.R. SUPREME COURT REPORTS

¶14

(2} that the legidation was not one in respect of wills, intestacy and succession, under Entry 7, List 3, but under Entry 9 of List 2 of the Seventh Schedule of the Constitution.

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(3} that in so far as the legislation came within Art. 31 (B} of the Constitmion it was not open to attack as offending Art. 14 of the Constitution.

¶16

1161

¶17

Rafa M .... c.,.l• k1isll11• f'odUllira 11,,jo Y. ... V. s.,..,.. K "'""" r _,,,,,,,.

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(4} the appellants were maintenance holders howsoever they had been described in the earlier ·documents and that the earlier documents did not constitute them as creditors of the holders of the estate.

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(5) The distributable compensation could only be arrived at after deducting the liabilities mentioned in the proviso to s. 41 (I} due from the estate to Government from the amount of compensation for the estate and thats. 54 (A} (ii} required that half of those liabilities (including Peshkash} due to the Government be deducted from half the amount of compensation which was to be distributed under s. 54A (i}.

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H.U, further, that in the other appeal proportion of I /5th fixed by s. 45 had been rightly applied and that the contention that the proportion should have been that which the allowances in the earlier documents bore to the total income in the year 1889, was not tenable.

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•.

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CIVIL APPELLATE JuRJSDICTION : Civil Appeals Nos. 116 to 125 of 1961.

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Appeals by special leave from the judgment and decrees dated March 4, 1955, of the former Andhra Pradesh High Court, Guntur, in S. T. Appeals Nos. 83,85-88,90,91 and 119-121 of 1954.

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'

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M. C. Setalvad, Attorney.General for India, R. Ganapathy Iyer, V. Sureshan and G. Gopalakrishnfln, for the appellants (in C.As.Nos. 116-119 of 61) a.1d th'e respondents (in C.As.Nos.120-125 of l961) .

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..

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. < '

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282 SUPREME COURT REPORTS [1963] SUPP.

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1961 A. V. Viswanatha Bastri, V. VedantacJiari and R•faJ M .... c.p.loT.V.R. Tatachari, for respondents l to 5 (in C.A. krisMa Toehmdra ·v. No. II6/61) and respondent No. l (in C.As. Rqja Y.Y. SanHlgno Krishno Toeluadra Nos. ll7-ll9/61) and the appellants in C.A. Nos.120125/61.

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K. Bhimasankaram and P. D. Menon, for respondent No. 2 (in C.A.Nos. 117-119/61).

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November 19. The Judgment of the Court was delivered by

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RagAubar Dqol, J.

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RAGHUBAR DAYAL, j. - These appeals arise out of the order of the Tribunal appointed under s. 8 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), hereinafter called the Act, apportioning the advance compensation given and interim payments made in connection with the vesting of the Venkatagiri Estate in the Government of Madras as a result of a notification issued under sub-s. (4) of s. l of the Act from the notified date, i.e., September 7, 1949.

¶34

The Act received the assent of the Governor General on April 2, 1949 and some of its sections, including ss. 4 and 8, mentioned in sub-s. (4) of s. l, came into force at once. The other sections came. into force with respect to the Venkatagiri Estate from the notified date. With effect from the notified date, i.e., September 7, 1949, the entire Venkatagiri Estate stood transferred to the Government and vested in it by reason of s. 3(b) of the Act.

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,..

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~ ""I

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2 S.C.R. SUPREME COURT REPORTS

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283

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Section 39 provides for the Director of Settle· ments to determine the basic annual sum in respect of the. estate and also the total compensation payable in respect of the estate, in accordance with the provi· sions of the Act.. Section 54-A provides that the Government shall estimate roughly the amount of compensation payable in respect· of the estate and deposit one-half of that amount within six months from the notified date in the office of the Tribunal all advance payment on account of compensation. Subs. (2) of s. 50 provides for the deposit of interim payments by the Government during· the period between the notified date and the final determinat~on and . deposit of the compensation payable in respect of the estate.

¶40

Rl!iaM .... ~1a k1isllno r 0&/uai/ro y, 114ja Y.Y. Sar..,.. K•u""" r .. ,,..,,,. ~OaµJ,J.

¶41

In respect of the Venkatagiri Estate, • the Government deposited Rs. 12,11,419/- as and by way of advance payment of compensation, after deducting Rs. 7,28,500/- payable to the Government by the Estate for peishkush out of the sum of Rs. 19,39,919-8-0, half of the estimated amount of compensation payable. The Government also deposited as interim payment Rs. 1,55,194/- for each of the Fasli years 1359 to 1362 F. It is the distribution of these amounts in deposit as advance payment of compensation and interim payments, which is the subject matter for detei-mination in these appeals.

¶42

To understand the. various claims for payment out of these deposits, the following genealogical table will be helpful :

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1

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284 SUPREME COURT REPORTS [1963]SUPP.

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KUMARA YACHENDR:.A ~

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Raja Rajaopala Krishna Raja Venkata Krishna Yachendra (Decased) Yachendra (Deceased) Govinda lrishna Raja V. KumarJKrishna Yachendra Yachendra (Dead). (Petitioner in 0. P. No. 392 of 1950) Petitioner I Raja V. Venkata Raja V. Rama Raja Vkata Krishana Krishna Rajagopala Yachcndra R. 10 Yachendra Krishna Yach. 0. P. R. 11 O. P. R. 12 0. P. No. 382/50 384/5-0 Raja Sarvaka Kumara Raja. Venkata Rajagopala Krishna Krishna R·3. . R-4 O. P. 256/50. Rajagopala Krishna Gopala Krishna Y achendra R-6. R-7. I I son Unnamed R-8 Son Unnamed R-9

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285

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2 S.C.R. SUPREME COURT. REPORTS

¶49

BAHADUR VARU

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Raja Muddukrishna Yachendra · (Died Issueless)

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Raja Venugopala Krishna Yachendra I

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1

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Raja V. Venkata Muvva Gopala Krishna Yachendra R. 15 0. P. 383/50.

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Raja V. Rajjwara Rao Raja Maheswara Rao (R-14) (R-15) l l I Minor Madanagopal . Died (R-16 0.P. No. 385 of 50)

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. I . .aJa Navaneethu Krishna R-5 O. P. • 294/50.

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1'

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286 SUPREME COURT REPORTS[1963] SUPP.

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1962

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~.M G./Mldrishna .... f' aelimdra v. Jrrubo ~ l'.Y. r....,,. s., .. ,..

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~tbbar D.,.1, J.

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The Venkatagiri Estate is an ancient estate in North Arcot and the necessary history of the Clttate for the purposes of this case is contained in the document Exhibit A-1 with which we now deal. Kumara Yac)lendra Bahadur Varu, who tops the genealogical table noted above and his four sons mentioned therein, are parties to this document. Kumara Yachendra Bahadur V.aru represents also his minor son Venugopala Krishna Yachendra. The document recites that the eNtate had been made over in 1878 to Rajagopala Krishna Yachendra, the eldest of the four brothers, by their father Kumara Yachendra Bahadur Varu, the then Rajah, as he wanted to devote himself to offering prayers to God for obtaining salvation. He was said to be the sole heir to the estate, as Venkatagiri Zamindari was an impartible estate and succession to it was governed by the rule of lineal primogeniture. In 1889, two of the brothen, Venkata Krishna Yachendra and Muddukrishna Y achendra, expressed a desire for the partition of the estate. The then Rajah, i.e., Rajagopala Krishna Yachendra, the eldest brother, asserted that it was not liable for partition. The four brothers then consulted their father and he told them :

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"that the Venkatagiri Zamindari was originally acquired by the valour of our ancestors in warfare, that the Zamindari is ancient, that it is an I mpartible Estate which has to eass in the order of primogeniture, that at the time when the Sannad Istimdar Milk was given to the Raja ofVenkatagiri who was ruling at the time of the permanent settlement the Peshkush was settled for this V enkatagiri Samasthanam on the amount which was. being paid as tribute and on the entire expenses relating to military assistance that was to be rendered to the Nawab's government which was in power previously that for this reason this Venkatagiri Samasthanam is not at all partible that the

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2 S.C.R. SUPREME COURT REPORTS 287

¶65

immovable properties relating thereto and also other immovable properties acquired with the income of the said Samas than am are not liable for partition that this is his opm10n in regard to immovable properties ...... "

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1962

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Raja Muuo. St/Ml• krisln111. Y«Matho .. Raja Y.Y. &tuop• K1Wuta.T•"'"1•

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The father suggested partition of certain other pro· perty.. The terms. of the final settlement between the father and his four sons are then noted. They may be briefly mentioned.

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·(I) As the Venkatagiri Estate is an Impartible Estate and it passes td the eldest son by the rule of lineal primogeniture, the said Estate, the immovable properties pertaining to it and other immovable pro· perties acquired with the income derived from the said Estate will be enjoyed by the Rajah, the eldest brother, and after hiS d~ath his sons and grandsons and so on in succession shall enjoy, always the eldest male being the heir.

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(2) Ifin the line of the said Rajah, his natural sons or adopted sons do not have male issue and that line stops short, then the properties shall be en joyed by him who is the nearest heir and who is also the eldest to whom the impartible properties of the family pas~ according to law and custom and the same shall be enjoyed by his successors.

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(3) The said Estate, all the properties pertaining to it, the title, power, privileges, all chese shall be enjoyed fully and with all powers according to law aud custom by the respective individuals who would be ruling at the respective periods subject to the con· dition of payment of allowances to other members. of the family from the income derived from thl' Estate and from the properties in a manner befitting their respective status.

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( 4) The allowances were settled as' fol lows. : Each of the brothers was to get Rs. l,000/- per.month

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\ i I I

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288 SUPREME COURT REPORTSfl963] SUPP.

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1962

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1962 for the rest of his life. After the death of each of R•fa M .... Gtpalo- these brothers, his male heir would continue to get krisluu1 r aehnulra this allowance of Rs. 1,000/- per month. This R4ja Y. Y. •• So,oagna amount of Rs. 1,009{' would be distributable between Kris.Ua T0<,,,.d14 such male heirs and their male issues, according to Ra1A•6rr D•,;al, J, Hindu Law. If the male member died without leaving a natural son or an adopted son, the allowance was to pass the nearest agnates of the same branch according to Hindu Law and in case he left a wifo or wives who had to be paid maintenance, their maintenance would be a liability on such agnate. It was further provided that if any of the three lines of the family ceased for want of male issue, i.e., whether natural or adopt· ed son, then subject to the condition that the wife or wives of the surviving male member of that branch who dies last shall be paid for their life-time as maintenance a sum of Rs. 500/- being one half of the entire allowance of Rs. 1000/- that was being paid to the said male member, the allowance which was being paid to that branch would entirely cease.

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•

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This document has been acted upon.

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In 1904, the Madras Impartible Estates Act, 1904 (Act II of 1901) came in to force. The V enka · tagiri Estate was included in the Schedule of that Act and had to be deemed to be an impartible estate in view of s. 3 of that Act. Section 9 of that Act mentioned the persons entitled to maintenance out of the impartible estate, where for the purpose of ascertaioing the succession to the impartible estate the estate had to be regarded as the property of a joint Hindu family.

¶80

In view of s. 66 of the Act the Madras Impartible Estates Act of 1904 is deemed to have b~en repealed in its application to the Venkatagiri Estate with effect from the notified date. The expression 'impartible estate' in the Act means an estate governed immediately before the notified date by the Madras Impartible Estates Act, 1904 and therefore applies to this estate.

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2 S.C.R. SUPREME COURT REPORTS 289

¶82

S. 41 of the Act provides for the compensation to be deposited in the office of the Tribunal. Section 42 provides for the filing of claims to the compensation before the Tribunal by persons claiming any amount by way of a share or by way of maintenance -0r otherwise and by creditors. By s. 43, the tribunal is to inquire into the validity of the claims and determine the persons who, in its opinion, are entitled to the compensation deposited and the amount to which each of them is entitled.

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1'61

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Section 44 provides that as a preliminary to the final determination, the Tribunalshall apportion the compensation among such persons whose rights or interests in the estates stood transferred to the Government, including persons who are entitled to be maintained from the estate and its Income, as far as possible, in accordance with the value of their respective interests in the estate. It~ sub-s'. (2) provides how the value of those interests shall be ascertained, and says that in case of an impartible estate referred to in s. 45, the ascert11inment Shall be in accordance with the provisions contained in that section and in such rules, not inconsistent with that section, as may be made by the Government in that behalf. Section 45 is the main section for our purpose and may be quoted:

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"45. (1) In the case of an impartible estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply.

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(2) The Tribunal shall determine the aggregate . compensation payable to all the following persous, considered as a single group:-

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(a) the principal landholder and his legitimate SODB, grandlons, and _great-grandsons m

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290 SUPREME COURT REPORTS (1963) SUPP.

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1962

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~·M G•f>a/okridna '¥11ch1ndra

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v. &;. v.v. s ... .,.. Krisha Tadindr1

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&,Au6ar Dtqal, J,

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the male line Jiving or in the womb on the notified date including sons, grandsons and great-grandsons adopted before such date (who are hereinafter called 'sharers') ; and

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(b) other persons who, immediately before the notified date, were entitled to maintenance out of the estate and its income either under section 9 or 12 of the Madras Impartible Estates Act, 1904; or under any decree or order of a Court, award, or other instrument in writing or contract or family arrangement, which is binding on the principal landholder (who are hereinafter called 'maintenanceholders'):

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Provided that no such maintenance-holder shall be entitled to any portion of the aggregate componsation aforesaid, if before the notified date , his claim for maintenance, or the claim of his branch of the family for maintenance, has· been settled or discharged in full.

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(3) The Tribunal shall next determine which creditors, if any, are lawfully ·entitled to have their debts paid from and out of the assests of the impartible estate and the amount of which each of them is so entitled; and only the remainder of the aggregate compensation shall be divisible among the sharers and main· tenance·holders as hereinafter provided.

¶97

(4) The portion of the aggregate com· pensation aforesliid payable to the maintenanceholders shall be determined by the Tribunal and notwithstanding any arrangement already made in respect of maintenance whether by a decree or order of a Court, a ward or other instrument in writing or contract or family arrangement, •uch poon shall not cceed

¶98

2 S.C.R. SUPREME COURT REPORTS 291

¶99

Cilne-fifth of the remainder referred to in subsection (3), except in the case referred to in the second proviso to section 47, sub-section (2).

¶100

1962

¶101

(5) (a) The Tribunal shall, in determining the amount of the compensation pay· able to the maintenance-holders and apportioning the same .. among theni, have regard, as far as possible, •to the following considerations, namely:-

¶102

(i) the compensation payable in respect of the estate ;

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(ii)· the number of persons to be maintained out of the estate ,;

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(iii) the nearness of relationship of the person claiming to be maintained ;

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(iv) the other sources of income of the clai· mant; and

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(v) the circumstances of the family of the claimam.

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(b) For the purpose of securing (i) that the amount of compensation payable to the maintenance-holders does not exceed the limit specified in sub-section (4) and (ii) that the same is apportioned among th~m on an equitable basis. the Tribunal shall have power, wherever neces.~ary, to re-open any arrangement already made in respect of maintenance, whether by a decree or oroer of a: Court, award, or other instrument in writing; or contract or family arrangement.

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(6) The balance of the aggregate compen· sation shall be ·divided among the ~. aa if

¶109

1961

¶110

R•ja Muvva Gop4'a· krishna r achtntlra •• Raja V. V. Saroagna Krishu Taclundra

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R1ghuhr Dayal, J.

¶112

292 SUPREME COURT REPORTS [1963) SUPP. they owned such balance as a joint Hindu family and a partition thereof had been effected among them on the notified date,"

¶113

Rajah Velugoti Kumara Krishna Yachendra, appellant in Appeal No. 117 of 1961, hereinafter called Krishna Bahadur, filrd Original Petition No. 2300 of 1953 before the Tribunal. Three of his sons Ramakrislina Yachendra, Rajagopala Krishna Yachendra and Movva Gopala Krishna Yachendra, appellants in Civil Appeals Nos. 118, 119and116 of 1961, respectively, filed separate petitions.

¶114

By their applications they raised the contentions that they were entitled to an amount in the compensation as sharers, as the impartible estate lost its character as such from the notified date and that the compensation payable with respect to their estate became partible and that in any case, they were entitled to the amount as creditors. It was further contended that the provisions of s. 45 of the Act were ultra vires the State Legislature and were discriminatory and so void aad that the maintenance amount be determined with respect to the amount of compensa· tion and not with respect to the amount of compensation minus the amount of peishkush which was payable by the estate to the Government. None of these contentions was accepted by the Tribunal or by the Special Tribunal constituted in accordance with s. 21 of the Act for hearing appeals against the orders of the Tribunal.

¶115

The Tribunal fixed Rs. 75,000/- as the amount payable to Krishna Bahadur's branch out of the sum of R~. 12,11,419/- deposited as adY&nce payment of compensation and further fixed the ratio of the value of the interests of Krishna Bahadur and the two brothers of the preiicnt Rajah, in the I/5th of the advance compensation, at 76:75:92. Tb!! amounts

¶116

I

¶117

2 s.c.R. SUPREME COURT REi>ORts 293

¶118

deposited as interim payment were to be distributed in the same ratio.

¶119

The present Rajah, Sarvagna Kumara Krishna, had urged before the Tribunal that the amount of maintenance to be paid to Krishna Bahadur's branch should be calculated on a different basis which, in brief, may be said to be that the amount to which he be held entitled out of the .compensation should bear the same proportion to the total compensation as the monthly allowance payable to him under the document Exhibit A·l bears to the income of the Estate in 1889 when that allowance of Rs. 1,000/· per month was fixed. This contention also did not find favour with the Tribunal or the Special Tribunal on appeal. The Rajah has therefore filed Civil Appeii.ls Nos. 120 to 123 of 1961. He has also filed twO appeals Nos. 124 and 125 with respect to the interim payments made so Krishna Bahadur's branch for the Fasli years 1359 and 1360 which were appor· tioned in accordance with the same principle which the Tribunal had adopted for the distribution of the maintenance allowance out of the advance compen· sation.

¶120

1962

¶121

Roj• Jl..,•·Go/Ola· lftW... rocuod••

¶122

v. JIJJja V.V. s...,..a K Tis6'u1 r .,,,,""

¶123

The points urged for the appellants in appeals Nos. 116 to 119 are :

¶124

, (1) Venkatagiri Estate was impartible by custom that impartibility was recognized when disputes arocc in 1889,. that impartibility continued under the Madras Impartible Estates Act of 1904 but ceased when the Estate vested in the Govcmment on September 7, _1949;

¶125

(2) ln·thcsc circumstances, the compensation will not bear tile •character of impartibihty. as the property becamc·,the property of the joint family, the coparccnary having continued all through ;

¶126

I

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294 SUPREME COURT REPORTS [1963) SUPP.

¶128

1962

¶129

~·M-~a krls.!u r,,.,,,..,.

¶130

"· a.jaV.V. s.,,.. KrlsMo1'..-4ta_

¶131

&,,.I., a.,., I.

¶132

(3) Section 45 and other provisions of the Act are ultra vires the State Legislature for want of legislative competence inasmuch as the said Legislature had no power to enact a law disturbing the rights of a joint family and also because the provisions of s. 45 are discriminatory and offend Art. 14 of the Constitution as they provide. for the maintcnanceholders to get I/5th out of the compensation while the proprietor and his sons are to get 4/5ths out of it after satisfying the claims of the creditors;

¶133

(4) The appellants are not maintenanceholders, but creditors;

¶134

(5) The amount of peishkush payable by the Venkatagiri Estate to the. Government was not to be deducted from the compensation when calculating maintenance amount payable to the maintenanccholders.

¶135

Now, the amount of peishkush payable to the Govemment had to be deducted out of the amount to be deposited under sub-s. (I) of s. 54-A in view of the provisions of its sub-s. (2) which provides that from the amount to be deposited under sub-s. (I) the Govemment shall be entitled to deduct one half of all moneys, if any, due to them in respect of peishkush. Sub-s. (4) of s. 54-A authorizes the Tribunal, after such enquiry as it thinks fit, to apportion the amount deposited in pursuance of that section, among the persons inentioned in that sub-section as far as possible in accordance with the value of their r~ctive interests and further provides that the provisions of ss. 42 to 46 (both inclusive), shall apply tnutatis mu.tandis in respect of the amount so deposited.

¶136

It is true that the peshkash was a payment which the holder of the Estate· had to make to the Government out of the income of the estate and that any arrears of pcshkash· remain a liability on the

¶137

2 s.c.R. SUPREME COURT REPORTS

295

·(

(

estate. It was in view of this fact that s.55(1) of the Act which takes away the right of any land-holder to collect any rent which had accrued to him from any ryot before the notified date and was out~tanding on that, date empowers the manager appointed under s. 6 to collect such rent and to pay the balance, if any, after making certain deductions specified in the section, including any arrears of peshkash to the landholder. The real compensation which is . to be paid by the Government on the vesting of the estate must be equal to the amount of the value of the estate as such, minus the liabilities of the · estate. What is to be distributed between the :Various persons entitled to the compensation must be the net amount and not the theoretical compensation for the estate as such. In this view of the matter too, the share of the maintenance-holders win have to be calculated in the amount of compensation deposited, i: e., the ainount of compensation mintllr the permissible deductions including peshkash.

¶143

It is therefore clear that the Tribunal could not have ignored the deduction of peshk3sh from one half of the estimated. amount of coinpensation payable in respect of the estate and had to aY.portion the amount deposited after taking into· consideration such deductioq. The contention for the appellants that the amount !o be co'nsiderc:d for calculating the share of the mamtenance-holders should have been taken at Rs, 19,00,000/·0dd and not at Rs.12,00,000/· Odd, the actual amount of the deposit, is Rot sound. "l .

¶144

The next que~tion is whether the allowance is a debt owed by the Rajah-landholder to his brothers to whom the allowance was to be paid. It might have been so only if it was postulated that the Rajah had purchased the share of the other members of the familx. and was paying the sale price in the form of · an alfowance. 'fliis is· not what the ~ocumcnt Exhibit A-I recites. There is nothing in it to indicate

¶145

1162 //JJfa M..,. Gotola krisha :r .W.'1• v. ~v.v.s .... ,.. IriilluuJ :r .,,,,.,,.

¶146

Rtvlu.b•r Day•I, J.

¶147

~ ~ I"

¶148

1

¶149

200 SUPREME COURT REPORTS [1963) SUPP.

¶150

11161

¶151

11161 that the brothers of the Rajah to whom the estate had 1!4aM_G.,._ been made over by their father claimed a share in 1:.i.wr-.•• the estate after they had been told by their father ~.17.v.s.._ .. that the estate was impartible. The sale price is x,;,i..t.-... normally fixed while the amount of allowance to be 11.,,., •• , ~'· 1. payable is an indefinite quantity depending upon length of time through which each of the brother's branches continues to have a male member. The word 'allowance' appears to have been used either as a dignified expression preferable in form to that of 'maintenance or due to the idea that the word 'maintenance' is to be used appropriately only for the amounts to be paid to female members of the family in certain circumstances.

¶152

1!4aM_G.,._ 1:.i.wr-.••

¶153

,. '

¶154

The allowance referred to in the deed, Exhibit A-1, as payaQle to Kishen Chander, fat.her ofKriahnll Bahadur, is not akin to a debt owed by the J,tajah to Kishen Chander. It is not made. payable on llCCOUnt of certain loans taken by the Rajah, but is payable for manintenance, as the estate being impartible the other members. of the family had a reasosable claim to maintenance. The only ground urged in support of the contention that the allowance is not an allowance for maintenance is that the word 'maintenance' is used in the documi:nt A·l in connection with the amount payable to the widows. A dift'ercnt terminology in referring to the amounfll to be paid to Kishcn Chander and his brothers does not change the character of the payment. The widows were to get a share out of the same allowance when there was no male member in the particular family. That amount cannot be a debt so long as it was payable to a male member and a maintena11ce when payable to a female member. Kishen Chander him~f referred to this amount as maintenance in earlier proceedings.

¶155

We therefore ~old that the view eitpnssed ~ the Courts below with respect to the natiJre of this allowance is cottect. ·

¶156

2 S.C.R. SUPREME COURT REPORTS 297

¶157

•

¶158

The validity of s. 45 of the Act on the ground of the competence of the Legislature of the State was not questioned in the High Court. The contention, however, is that the Act was made by the State Legislature by virtue of Entry 21 in List II of the Seventh Schedule to the Government of India Act, 1935, which reads:

¶159

"Land, that is to say, rights in or over land, land tenures, including the relation of land· lord and tenant, and the collection of rents ; transfer, alienation and devolution of agricul· tural land; lllJld improvement and agricultural loans; colonization; Courts ofWards; Encumbered and attached estates ; treasure trove."

¶160

1961 &jjoM-~ irit)n• r ....... v. ,~,i'i.:::r.

¶161

¶162

The question of succe9ion to the impartible estate docs not come under this Entry and comes under Entry No. 7 of List III of the Seventh Schedule to the Government of India Act which reads : .

¶163

"Wills, intestacy, and succession, save as regards agricultural land."

¶164

The reply for the respondent is that the Act can come within cithel' item No. 9 or item No. 21 or bOth, of List II of the ~cnth Schedule to the GOvcrnmcnt of India Act, 1935. . I

¶165

We are of ophiion that the Act d~ not deal with the suon to impartible estates. The A::t acquires the impartible estate whkh vests in the GovCl'DIJ'lent on th notified date. The rights of the Ian }.holder in the estate cease OD that date. The Act ¥ as enactc:I bv tli.e State Legislature by virtue of item No. 9, List If, Semith Sc'iedule to the Gc·vcrnmeot of India Act which reads :

¶166

''Compullory aoquiaition of land."

¶167

The Act is not tillra ftr'U the State Legislature. 1

¶168

Thcattack OD the validity of 1. 45 of the Act on

¶169

)I ~·--

¶170

298 SUPREME COURT REPORTS [i963] SUPP.

¶171

1912

¶172

1912 the grour;d of its contravening the provisions of Rs,ia Mu• .. G.l•la· Art. 14 of the Constitution is riot oi>en to the appe· •ri1/m11 Y Mflldra llants in view of Art. 31B which provides inter alia Raj• v. v. v. s-,.,. that no .1e ol the Acts specified in the Ninth Schedule Kris.lao TaeAMilra nor any of the provisions thereof shall be deemed to Ra1 ..... D•,.I, J, be void or ever to have become void on the ground that the Act takes away or abridges any of the rights conferred by any provisions of Part III. Article 14 is in that Part of the Constitution. The Act is men· tioned at item No. 10 in the Ninth Schedule. We therefore hold that the provisions of s. 45 of the Act are not void.

¶173

--

¶174

The next question for determination is whc:-ther the appellants should have got share in the compensation as 'sharers' on account of the partible character of the estate reviving on the notified date as a result of the repeal of the Impartible &tates Act, 1904. We a1e concerned in these appeals with the distribution of advance compensation given and interim payments made in accorc1 ance with the provisions of the Act. We have held the relevant provisions to be valid. Therefore, the appellants can only ask for their share of the compensation in accordance with those provisions. We do not consider it necessary to decide the question whether any property ceased to be impartible after the notified date and understand that an appeal in which tJie question di~tly arises is pending against a judgment in a civil suit holding that the buildings to which sub-s. (4) of s. 18 applied were impartible and were owned by the Rajah. Even if the appe· llants had any right in the estate, (though we do not so decide), that right ceased on the notified date in view of the provisions of s. 3 of the Act and thereafter they are entitled to such rights and privileges only as are recognized or conferred by or under the Act.

¶175

Section 3 of the Act provides the consequences of notification of the estate. The relevant portions of s.3are:

¶176

" ·x

¶177

2 S.C.R. SUPltEME COUR'f R.El'OR'fS 299

¶178

(b) the entire estate ...... shall stand transferred to the Government and vest in them ......... .

¶179

(c) all rights and interests created in or over the estate before the notified date by the principal or any· other land-holder, shall as against the Govemmelit cease and oetermine ;

¶180

1962

¶181

116fa~ c.tiol•ltruhna toJ.Ura •• IW• v. v. Sat•ai•• Kri1ltn• '1' .Mieir• R•gbbal DllJ•I, I

¶182

x x x x

¶183

(e) the principal or any other landholder and any oiher person, whOIC rights stand transferred under clause (b) or cease and determine under clause (c), shall be entitled only to such rights and {>rivileges as att recognized or conferred on him by or under this Act.

¶184

x x x x

¶185

(g) any rights and privileges which may have accrued in the estate, to any penon before the notified date, against the principal or any other landholder thereof, shall cease and determine, and shall not be enforceable against the Government or such landholder, and every such person shall be entitled only to such rights and privileges as are reco~ or couferred on him by or 'under this Act. '

¶186

The estate was impartib[e up to the moment it vested in the Government on the notified date. Whatever be the nature of.the com~ation payable, the distribution of the compensation· between the persons who had an interest in the estate would be in accortlance with the groviaions of sub-s. (2) of s. 45 which defines "sharers to be the principal landholder and his legitimate sons, jVandsons and the great-grandsons in the main line liVJDg or in the womb on the notified date, including solll, grandsons and great-grandsons adopted before such date. The appellants do not come under any of the persons mentioned in this

¶187

300 SUPREME COURT REPOR.Ts [1963] SUPP.

¶188

1962 R4jo Mugua G.pa/ol:rilllllo r..,,,.dra v. Ro/a V .V. S.roap .1 Jrrisba r .. 1 .. ,,. Roghubar Dtl,1td, J,

¶189

clause and therefore they cannot get compensation as "sharers"

¶190

The result of our findings . is that all the four appeals nos. 116 to 119 of 1961 Jail ..

¶191

The dispute in the remaining six civil appeals relates to the principle on which the amounts of maintenance payable to the persons entitled to it arc to be calculated. The contention is that when the net income of the estate in 1889 was about Rs. 6,00,000/- a year, the allowance payable to each brother was Rs. l,000/· per month and that therefore the value of the interest of each brother in the estate came to about l/50th of the income. The amount payable to him now, it is urged should bear the same proportion to the basic annual sum which is first calculated under the provisions of the Act and later capitalised to obtain the amount of compensation payable for the estate. The relevant provisions in connectiou with the apportionment of the maintenance allowance applicable to impartible estates arc to be found in ll. 45 of the Act. Sub-ICCtion (3) provides for determining the amount to which the creditors of the holder of the estate arc entitled out of the assets of the estate. The amount due to them is first to be deducted from the compensation and out of the balance the maintcnance-holdera as a body can have an amount equal to l/Gth and no more. If the amount due to them comes to less than I/5th they will get it as they had been getting in the past. If the a.mount exceeds I/5th of the aforesaid balance, the tribupal has the authority to re-open any arrangement previousJy made in respect of maintenance and re-assess the amount to be ~ to eaCh maintenanee·holdcr, keeping in regard the provisio1111 pf sub-:SCCtion (5). There is nothing in this · aub'section which autho• the Tribunal·. to ' CalC\llatc the: j:nci\if)DCC of the allloWU· Of comecma· tloo on the income of.the ~tatc at the tiine it was fixccl. Even in the present case, the amount ·of

¶192

2 S.C.R. SUPREME COURT REPORTS 301

¶193

maintenalic:C allowance was not fixed as a certain proportion of the net income or the estate but was fixed, according to document A-1, after c0nsidering several factors affecting the question as is apparent from the following statement in the document :

¶194

1182 Rqja MMOaa OopJ/a• irislUla r aela11Ulr il v. Raja V .V, s.,,.,.. Jrrillma :r.w ... Rll1/rubor na,.i, J.

¶195

"The aforesaid mediator considered in full the status of all the claimants, the status and dignity of the Estate and all the other matters deserving consideration and settled that the said Rajha. Rajagopala Krishna Yachendra .•....... of Venkatagiri should pay the allowances as mentioned below."

¶196

We arc thcrr.fore of opµiion that the Special Tribunal had held rightly that the apportionment of the advance payment cif compensation and the interim payment had been made in accordance with the provisions of the Act.

¶197

In view of what we have stated above, we dis~~ all the appeals with costs,. one hearing.fee for Civil A~als Nos. 116 to 119 and one hcanng fee for Civll Appeals Nos. 120 to 125.

¶198

Appeals dismissed.

Raja Muvva Gopalakrishna Yachendra and Others v. Raja v v. Sarvagna Krishna Yachendra and Others

Case brief

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Raja Muvva Gopalakrishna Yachendra and Others v. Raja v v. Sarvagna Krishna Yachendra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

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