civil appellate jurisdiction civil appeal number 2113 of
1966.
appeal from the judgment and decree dated august 13 1965 of
the madras high companyrt in o.s.a. number. 40 and 53 of 1961.

r. pattabhiraman v. suresham and s. balakrishnan for
the appellants. vedantachari -and k. jayaram for respondent number 1.
the judgment of the companyrt was delivered by
ramaswami j. this appeal arises out of a suit o.s. 351 of
1952 filed for partition by 7 plaintiffs viz.  1  sri raja
venkata kumara krishna yachendra  2  sri rajah v. v.
ramakrishna  3  sri raja v. v. rajagopala krishna  4  sri
raja v. v. muvva. gopala krishna  5  sri raja v. rajeswara
rao  6  sri rajah v. maheswara rao and  7  sri raja v.
madana gopala krishna minumber by next friend and mother smt. sridevamma in respect of the venkatagiri estate and other
properties as accretions to this estate. the first
defendant in the suit was the holder of the zamindari until
it was numberified and taken over by the state on september 7
1949. the 3rd and 4th defendants are brothers of the first
defendant. the third defendant died during the pendency of
the suit and defendants 7 and 8 are his sons. defendants 4
5 and 6 are the sons of the 4th defendant. the 9th and 10th
defendants are the sons of the 1st defendant. the 4th
plaintiff shri raja v. v. muvva gopala krishna died during
the pendency of the appeals against the suit in the high
court of madras. after the filing of the petition of appeal
in this companyrt sri raja v. maheswara rao
l6sup. c.i./70--7
the 6th plaintiff also died. the relationship of the
parties will appear from the following pedigree
sri rajah velugoti kumara yachendra nayudu bahadur
raj rajagopalakrishna muddu krishna venkata
 diedissueless krishna
in1921
 died in 1916  krishna
bahadur
raja govinda krishna  plff.1
 died in 1937

v.rama
krishna
raja v sarvagna  plff.2
krishna

v. raja
gopalakrishna
 deft   dlff number3
d-9 v.v. morva
d-10 gopalakrishna
 dlff.4
second prince third prince
d-7 d-8 d-4 d-5 d-6
 ii
venu gopla
rajeswara rao maheswara rao
 plff. 5   plff. 6
madana gopala  minumber
by next friend and
mother sreedevi
 plff. 7
 iii
rama krishna rao seshchala pathi vekata lakshmana
 adopted to ranga rao rao
pithapur   adopted to  adopted away
bobbili
the venkatagiri estate is an ancient impartible estate in
nellore district included in the schedule under the madras
impartible estates act  act ii of 1904 . in the year 1878
raja velugoti kumara yachema who heads the above pedigree
was
the zamindar. he had seven sons of whom three had been
given away in adoption. the eldest of the sons was
rajagopala krishna to whom raja velugoti kumara yachama
handed over the entire estate and certain other properties
with a view to spend the rest of his life in piety and
meditation. in 1889 muddukrishna and venkata krishna two
of the sons claimed a share in the estate companytending that
the estate was partible and the four sons were each entitled
to a fourth share in the family properties. rajagopalakrishna however asserted its impartible
character. ultimately there was a settlement between the
parties wherein muddu krishna and venkata krishna withdrew
their claim to partition and recognised the impartible
character of the zamindari. the settlement involved the
payment of large sums of money by rajagopala krishna to his
three younger brothers muddu krishna venkata krishna and
venugopal. venugopal was then a minumber and was represented
by the father raja velugoti kumara yachama himself. the
terms of the settlement were embodied in a stamped document
bearing the date april 8 1889. its terms may be summarised
as follows  a  recognition by all the brothers that the
venkatagiri estate-was impartible with descent along the
eldest line that is by rajagopala krishna the then
zamindar and after him by his son sons son and so on in
the eldest male line  b  the three brothers of the then
rajah muddukrishna venkata krishna and venugopal should
each receive a sum of rs. 581252-11-10  c  muddu krishna
venkata krishna and venugopal should also receive a sum of
rs. 40000 each for providing themselves with residence  d
a provision for the marriage expenses of venkata krishna and
venugopal and  e  provision that rajagopala krishna and his
successors to the estate should pay to muddukrishna venkata
krishna and venugopal a sum of rs. 1000/- each per mensem
for life -and on their death a similar amount to their male
descendants  purusha santhathi  by way of allowance the
amount payable to each branch being rs. 1000/- irrespective
of the number of descendants. venugopal the last of the four brothers never married and
plaintiffs 5 -and 6 to the suit are his illegitimate sons. in 1932 plaintiffs 5 and 6 instituted a suit against the
estate  o.s. number 30 of 1932  claiming maintenance allowance
and relying upon the agreement of 1889 and in the
alternative on custom and hindu law. the subordinate judge
found that custom was number proved and that they were number
entitled to maintenance under the hindu law. but he found
that the claimants were entitled to the maintenance under
the deed as purusha santhathi. on appeal the high companyrt
agreed with the finding of the trial companyrt as regards the
absence of any custom but differed from the interpretation
of purusha santhathi and held that the term was applicable
only
to legitimate sons and number to illegitimate sons. the high
court however took the view that the plaintiffs 5 and 6
were entiled to maintenance under the hindu law. the
judgment of the high companyrt is reported in maharaja of
venkatagiri v. raja rajeswara rao 1 . the matter was taken
in appeal to the judicial companynmittee and the judicial
committee allowed the appeal of the rajah holding that the
illegitimate sons of venugopal were number entitled to
maintenance either under the agreement of 1889 or under the
hindu law. the decision of the judicial companymittee is
reported in raja krishna yachendra v. raja rajeswara rao 1 . at the time of the numberification. of the estate under the
madras estates  abolition and companyversion into ryotwari  act
1948  act 26 of 1948   hereinafter called the abolition
act  the first defendant in the suit held the estate and
was the principal landholder under the act. under s. 66 of
the abolition act on and from the numberified date the madras
impartible estates act 1904  act 2 of 1904  shall be deemed
to have been repealed in its application to the estate. out
of the advance companypensation first deposited plaintiffs 1 to
4 had been paid a sum of rs. 75000/as maintenance holders
under s. 45 of the abolition act. they were entitled under
the act to a further sum of rs. 75000/- in the second
instalment of companypensation and a share in such additional
compensation that may be given. they were also given
interim payments at rs. 9000/- per year under s. 50 of the
abolition act. under s. 47 of the act they were also
entitled to ryotwari patta. the case of the plaintiff was that the venkatagiri estate
became an impartible estate only under the agreement of 1889
between the parties and became a statutory impartible estate
by virtue of its inclusion in the schedule to the madras
impartible estate act 1904 and that on the repeal of that
enactment by s. 66 of the abolition act the estate became
partible. the companytention of the plaintiffs was that as
junior members of a joint family they were entitled to a
share in the companypensation amount and also to a share in
schedule b properties which were number vested in the state
government. so far as the claim to a share in the
compensation amount is companycerned there were proceedings
under the abolition act itself. the suit was principally
confined to the claim for a share in the b schedule
properties and for -an alternative claim for maintenance at
rs. 1000/- p.m. so far as the b schedule properties are
concerned the claim was companyfined to shares in three items
of immovable properties namely  1  motimahal number 187 mount
road madras  2  venkatagiri rajahs bungalow at nellore
and  3  venkatagiri rajahs bungalow at

i.l.r. 1939 mad. 622.

i.l.r. 1942 mad. 419.
kalahasti. out of the movable properties the claim was
confined to sub-item8 of item 8 of the b schedule that is
a golden howdah. it is the case of the plaintiffs that the
repeal of the impartible estates act by virtue of the
numberification will have the effect of changing the character
of the properties in the b schedule and making them
partible. it was companytended that even if for any reason the
plaintiffs are number granted a share in the properties of the
estate they must be paid a sum of rs. 1000/- per mensem in
terms of the original agreement of april 8 1889.
the trial judge subramaniam j. held that the venkatagiri
zamindari was impartible by custom even apart from the
agreement of 1889 and the impartible estates act of 1902 and
1904. even after the abolition of the venkatagiri estate
the character of impartiability was found to companytinue in
respect of b schedule properties which formed part of the
zamindari. the learned judge held that the plaintiffs 1 to
4 were number entitled to a share in the immovable properties
of b schedule but were entitled to recover such sum as may
be needed to make up the monthly allowance for their branch
at rs. 1000/- p.m. after taking into companysideration the
amount which plaintiffs 1 to 4 were given under the
abolition act. they were granted a charge for the amount on
items 1 14 and 16 of plaint b schedule. plaintiffs 1 to 4
were also given a decree for one-third share sub-item 8 of
item 8 of schedule b properties namely the golden howdah. so far as plaintiffs 5 to 7 were companycerned they were held
number entitled to any relief. the plaintiffs 1 to 7 preferred
appeal o.s.a. 53 of 1961 against the judgment of the trial
judge in o.s. 351 of 1952. the first defendant also filed
osa 40/61 against that portion of the judgment in o.s. 351
of 1952 whereby the trial judge held that even after the
numberification of the venkatagiri estate under the abolition
act and the payment of the companypensation under that act to
plaintiffs 1 to 4 their claim for maintenance under the
agreement of april 8 1889 companytinued in force and that
plaintiffs 1 to. 4 were entitled to a payment of rs. 1000/-
p.m. each after giving credit for payments made under the
abolition act. both the appeals o.s.a. 53 of 191 and o.s.a. 40 of 1961 were heard together and disposed of by a division
bench companysisting of chandra reddy c.j. and natesan j. by
a companymon judgment dated august 13 1965. the division bench
held that plaintiffs 1 to 4 having enjoyed the benefit of
payment under s. 45  5  of the abolition act and got
capitalised by the tribunal of their maintenance rights on
the basis of the extinction of the estate cannumber make a
further claim as if the agreement of 1889 was a subsisting
one and call upon the 1st defendant to make up for any
deficiency from the properties that had pot vested in the
government. the division bench also disallowed the claim of
plaintiffs 1 to 4 for a share in the value of the golden
howdahs. it was
pointed out that silver and the golden howdah were number
treated as an impartible but were actually divided among the
family members. accordingly the division bench allowed the
appeal o.s.a. 40 of 1961 filed by the 1st defendant. in
regard to c.s.a. 53 of 1961 the division bench held the
claim that the venkatagiri estate was number an impartible
estate by custom was devoid of merit. it was pointed out
that before the special tribunal under the abolition act the
plaintiffs had advanced the same companytention but it was
rejected. plaintiffs 1 to 4 filed an appeal to this companyrt
against the decision of the special tribunal. the decision
of this companyrt is reported in raja muvva gopalakrishna
yachendra and others v. raja v. v. sarvagana krishna
yachendra and others 1 . before this companyrt plaintiff 1 to 4
did number question the finding of the special tribunal that
venkatagiri estate was an impartible estate. on the other
hand the companytention advanced by the plaintiffs was that the
venkatagiri estate was impartible by custom and that the
impartibility companytinued under the madras impartible estates
act but ceased when the estate vested in the state
government. the division bench upon an examination of the
evidence held that venkatagiri estate was an impartible
estate by custom and was number made impartible for the first
time under the-agreement of 1889 or by acts of 1902 or 1904.
the claim for partition made by plaintiffs in respect of the
b schedule immovable properties was negatived. as regards
the claim to maintenance made by plaintiffs 5 to 7 the
division bench held that a similar claim had been rejected
previously by the judicial companymittee as number tenable either
under the agreement of 1889 or under hindu law or on the
basis of custom. in the result osa 53 of 1961 filed by the
plaintiffs was dismissed. osa 40 of 1961 preferred by the
1st defendant was allowed and the suit was dismissed in its
entirety. the first question to be companysidered in this appeal is
whether the plaintiffs are entitled to claim a share in the
three items of immovable properties of b schedule already
referred to. the argument on their behalf may be
sumtnarised as follows venkatagiri estate admittedly an
ancestral estate was number impartible by custom but for the
first time by the agreement of 1889 the parties thereto
agreed to hold it as an impartible estate succession being
governed by the law of primogeniture. the arrangement was
brought about to preserve the integrity of the estate and to
preserve its past glory. by reason of the numberification of
the estate under the abolition act and the vesting of the
estate in the government the purpose for which the agreement
was entered into was frustrated. the agreement of 1889
could therefore be numberlonger relied upon for preserving the
impartible character of the estate or what was left of it. the three items of immovable
 1  1963 supp. 2 s.c.r. 280.
properties though outside the territorial limits of the
zamindari were held impartible only as appurtenant to the
main estate and after the impartible character of the main
estate was lost these properties became partible. even
though the estate was treated as an impartible estate it
was an ancestral estate as there was joint ownership of the
estate in the family members. plaintiffs 1 to 4 therefore
were entitled to one-third share of the properties of b
schedule which are number vested in the government and
plaintiffs 5 to 7 were entitled similarly to anumberher one-
third share. in our opinion the companytention of the plaintiffs that
venkatagiri estate was number impartible by custom is
untenable. the early history of the zamindari is
summarised in gopalkrishna v. sarvagna krishna   as follows

the estate of venkatagiri has been in
existence since muhamadan times. on the
disruption of the moghal empire it owed
allegiance to the nawabs of arcot. in
addition to the payment of peshkush they had
to maintain an armed force for the assistance
of government in times of disorder or
rebellion. as a result of the treaty between
the east india companypany on the one side and the
nawab of arcot on the other the administration
of that part of the companyntry under the
suzerainty of the latter was made over to the
british. under this treaty the zamindary of
venkatagiri was recognised and the rajah had
to pay to the east india companypany what be was
paying before to the muhammadan rulers. sometime later in accordance with the
arrangement entered into between the zamindars
in western arcot and lord olive the east
india companypany took over the responsibility for
the preservation of law and order and the
zamindars were relieved of the task of
maintaining armed forces and in its stead they
undertook to pay an additional revenue on
their estate which was added to the peshkush. it was assured that the fixed peshkush would
remain unalterable. in pursuance of this
agreement a sanad was granted in 1802 to the
zamindar of venkatagiri and other zamindars
embodying the terms agreed upon. ever since
successive zamindars held the estate paying
peshkush which has been invariable. the estate is described in the official documents in the
year 1801 as one of the western palayama. it was observed
by the privy companyncil in naragunty lutchmeedavamah v.vengama
naidoo 1
 1   1955  a.w.r. 590.  2  9 m.i.a. 66. .lm15
a polliam is explained in wilsons glossary to be a tract of
country subject to a petty chieftain. in speaking of
polligars he describes them as having been originally petty
chieftains occupying usually tracts of hill or forest
subject to pay tribute and service to the paramount state
but seldom paying either and more or less independent but
as having at present since the subjugation of the companyntry
by the east india companypany subsided into peaceable
landholders. this companyresponds with the account read at the
bar from the report of the select companymittee on the affairs
of india in 1812. a polliam is in the nature of a raj it
may belong to an undivided family but it is number the subject
of partition it can be held by only one member of the
family at a time who is styled the polligar the other
members of the family being entitled to a maintenance or
allowance out of the estate. the document of 1889 also negatives the case of the
plaintiffs that the estate was made impartible for the first
time by that document. the language of the document clearly
shows that it only recognised the then subsisting impartible
character of the estate. in other words the document
proceeds on the assumption that the zamindari was made
impartible by custom from the very beginning. the relevant
portion of the agreement of 1889 ex. a-1 is to the
following effect
on the 18th april 1889 the companytract entered
in writing by raja velugoti rajagopala krishna
yachandra bahadur rajah of venkatagiri
eldest son of sri raja velugoti kumara yachama
naidu and his three uterine brothers  1  muddu
krishna  2  venkatakrishna and  3  minumber
venugopala by his father and guardian raja
velugoti kumara yachama naidu is as follows
out of the sons of the said sri raja velugoti
kumara yachama naidu excluding the three
who have been given in adoption  while we
remaining four brothers companyprising the parties
to this document are sons of the said raja v.
kumara yachama naidu and members of an
undivided family because the venkatagiri
estate is impartible and subject to the law of
primogeniture our father sri raja v. kumara
yachama naidu with the intention of his
seeing and approving of the ruling of the
estate by his eldest son the raja rajagopala
krishna and with the intention of passing his
time thereafter in future in the meditation of
god as means to attain to the world beyond
transferred on the 28th october 1878 to the
eldest of us four and the heir apparent to the
estate namely the
raja rajagopala krishna raja of venkatagiri
the venkatagiri zamindari the immovable
properties relating thereto the other
immovable properties which were acquired by
means of the income of the said zamindari and
all his ancestral and his self acquired
movable properties excepting the nine lakhs
and odd rupees and all the properties
connected therewith including its accretions
which he retained for his charitable expenses. since then the aforesaid raja rajagopala
krishna yachandra raja of venkatagiri has
been ruling the estate when the matters
stood thus on account of ill-feeling that
arose between some of us two of us namely
muddukrishna yachendrulu and venkata krishna
yachendrulu expressed the desire that the
said venkatagiri zamindari the immovable
properties companynected therewith the other
immovable properties acquired by means of the
income of the said venkatagiri zamindari and
all the movable properties should be divided
into four shares and their respective shares
should be given to them. the raja rajagopala-
krishna raja of venkatagiri becoming aware
of this fact companytended that the venkatagiri
zamindari the other immovable properties
connected therewith the other immovable
properties which were acquired by his father
out of the income of that zamindari and trans-
ferred by him to him alongwith the estate and
ancestral and sell acquired movable properties
of his father which the latter transferred to
him alongwith the estate were impartible. thereupon all of us brothers companysulted about
the aforementioned points of dispute our
father who is all-knumbering and who has
considerable experience. he companysidered it
well and positively expressed his opinion
that regard to immovable property the
venkatagiri zamindari was originally earned by
our ancestors by reason of velour in war
that it was an ancient zamindari that it was
an impartible estate devolving along the
eldest line of descendants that it was
permanently settled that when sannad
milikiyat istimirar was granted to the
ancestors who was then the zamindar of
venkatagiri the peshkush for this venkatagiri
estate was fixed with reference to the amount
of expenses of the military troops and
servants which he  our ancestor  was supplying
and with reference to the money paid as
tribute to the former government namely
nawab that therefore this venkatagiri estate
was number partible that the immovable
properties companynected therewith and other
immovable properties acquired by means of the
income of the said estate were also of
course impartible-that in regard to movable
property his ancestral and self-acquired
money in cash the money companysisting of
deposits kept in the firms of arbuthnumber company
and binny company all the silver gold and
precious stones jewels which were on the
26th october 18/8 transferred along with the
said venkatagiri estate to this eldest son
the raja rajagopala krishna raja of
venkatagiri together with the accretions
thereto upto number should be divided equally
among his four sons who are among the parties
to this document-that such would be a just
arrangement. in regard to our fathers
opinion about the - immovable property the
three youngest of us brothers companysulted their
proper friends and in regard to our fathers
opinion about the aforementioned movable
properties which were acquired by raja
velugoti kumara yachama and transferred along
with the venkatagiri estate the eldest of
these four brothers . . . companysulted his
proper friends. on account of the companyent
reasons urged by the respective friends of
these both parties and for the reasons urged
by the respective friends of these both
parties and for the reason that all
family
feuds would  thereby  end and companypromised the
opinions of one of the parties to this
document namely raja velugoti kumara yachama
naidu on the two points referred to above
have been agreed in as certainly companyrect and
accepted by the remaining parties namely we
four brothers. therefore the parties to this
document namely we four brothers and our
father raja velugoti kumara yachama do number
jointly and severally hereby determine agree
and affirm as follows
all this venkatagiri estate is impartible
descendible along the eldest line  of descent
of the said estate the immovable properties
connected therewith and the other immovable
properties acquired by means of the income of
the said estate should be enjoyed by the
eldest of us four brothers and the heir of the
aforesaid raja velugoti kumara yachama namely
the aforesaid velugoti rajagopala krishna and
after him by his son sons son and so on in
the eldest male line of descent subject
to the companydition of paying allowances to other
members of our family suitably to their
respective status out of the income from the
estate and the properties. and so we divide
in the manner shown below all the money
silver gold and precious stones jewels and
the accretions resulting thereto upto
this day which formed ancestral and self
acquisition of our father along with the
said estate
counsel for the plaintiffs has been unable to show any term
in this agreement to support his companytention that it was only
by virtue of that document that the parties agreed to call
the estate impartible. on the companytrary the document
indicates that there was clear recognition by the executable
of the then character of the estate as an impartible
zamindari. we shall then deal with the inclusion of the venkatagiri
zamindari in the impartible estates act passed by the madras
legislature in 1902 and 1904. these acts became necessary
as a result of the ruling of the privy companyncil in sri raja
rao venkata mahipati rama krishna rao bahadur v. the companyrt
of. wards 1 . the decision of the judicial companymittee was
given in 1889 and the impartible -estates act was passed in
madras in 1902 with a view to preserve the ancient
zamindaris of the madras presidency. referring to the
schedule to the act the statement of objects and reasons
explained that the schedule companytained only permanent
settlement estates in existence before the date of permanent
settlement regulations and which have been declared by the
judicial decisions to be impartible or locally companysidered by
ancient custom to be so impartible and had in fact descended
without partition since that date the impartible estates
act 1904 finally took the place of 1902 act. the estate of
venkatagiri has been included in the schedule annexed to
both the impartible estates acts. the obvious inference is
that the government had made enquiries and were satisfied
that the estates included in the schedule to act 2 of 1904
were impartible and the inclusion of the estates therein is
a legislative determination that they were impartible. in
pushavathi viziaram gajapathi rai manne v. pushpavathi
visweswar gajapathi rai 1  this companyrt observed
soon after these decisions were pronumbernced by
the privy companyncil the madras legislature
stepped in because those decisions very rudely
disturbed the view held in madras about the
imitations on the powers of holders of
impartible estates in the matter of making
alienations of the said estates. that led to
the passing of the madras impartible estates
acts ii/1902 11/1903 and ii/1904. the
legislature took the precaution of making
necessary enquiries in regard to impartible
estates within the state and made what the
legislature thought were necessary provisions
in respect of the terms and companyditions on
which the said estates were held. i.l.r. 22 mad. 383
 2  1964 2 s.c.r. 403.
in these circumstances we see numberreason to
differ from the finding of the high companyrt that
the estate of venkatagiri was an ancient
impartible estate by custom and was number made
impartible for the first time under the
agreement of 1889 or by the madras acts of
1902 and 1904.
the next question for determination is what is
the effect of the abolition act on the rights
and obligations of the members of the family
in relation to the venkatagiri zamindari. according to the plaintiffs the property
described in the b schedule appended to the
plaint did number vest under s. 3  b  of the
abolition act. the properties in the b
schedule include a building in mount road
madras a bungalow at kalahasti and the
district judges bungalow at nellore town. these buildings are situated outside the
territorial limits of the venkatagiri estate. section 3  a  and  b  of the abolition act
states

with effect on and from the numberified date
and save as otherwise expressly provided in
this act-
1  a  the madras estates land  reduction of
rent  act 1947  madras act xxx of 1947  3 in
so far as it relates to matters other than the
reduction of rents and the companylection of
arrears of rent and the madras permanent
settlement regulation 1802  madras regulation
xxv of 1802  the madras estates land act
1908  madras act 1 of 1908  and all other
enactments applicable to the estate as such
shall be deemed to have been repealed in their
application to the estate.  b  the entire estate  including -all
communal lands porambokes other number-ryoti
lands waste lands pasture lands lanka
lands forests mines and minerals quarries
rivers and streams tanks and irrigation
works fisheries and ferries  shall stand
transferred to the government and vest in
them free of all encumbrances and the madras
revenue recovery act 1864 the madras
irrigation cess act 1865 and all other
enactments applicable to ryotwari areas shall
apply to the estate
section 1 3  state

it applies to all estates as defined in
section 3 clause  2  of the madras estates
land act 1908
except inam villages which became estates by
virtue of the madras estates land  third
amendment  act 1936.
section 2  3  defines estate to mean
 3  estate means a zamindari on an
undertenure or an inam estate
section 2 16  defines zamindari as follows
 16  zamindari estate means-

an estate within the meaning of section
3 clause
 2   a  of the estates land act after
excluding therefrom every portion which is
itself an estate under section 3 clause
 2   b  or  2   e  of that act or

an estate within the meaning of section
3 clause 2 b  or 2 c  of the estates land
act after excluding therefrom every portion
which is itself an estate under section 3
clause  2   e  of that act. section 3 2  of estate land act  madras act 1
1908  defined an estate to mean
 a  any permanently-settled estate or
temporarilysettled zamindari
 b  any portion of such permanently-settled
estate or temporarily-settled zamindari which
-is separately registered in the office of the
collector
 c  any unsettled palaiyan or jagir
x x x x
section 2 2  of the madras impartible estates act 1904
 madras act 2 of 1904  defines an impartible estate as an
estate descendible to a single heir and subject to the other
incidents of impartible estates in southern india. in
relation to the venkatagiri zamindari the expression estate
in s. 3 a  of the abolition act refers obviously to the
venkatagiri estate which till then was subject to the
operation of the madras permanent settlement regulation and
the madras estates lands act. in relation to the
venkatagiri zamindari s. 66 of the abolition act enacts
that with effect from the numberified date the madras
impartible estates act 1904 shall be deemed to have been
repealed in its application to the estate. the question
arises whether the word estate in s. 66 of the abolition
act denumberes the zamindari companysisting of properties which
stood transferred to the government under the abolition act
and properties which are number so transferred or whether the
expression estate refers to only the venkatagiri estate
which until the numberification issued under the abolition act
took effect was the subject of the permanent settlement
regulation and the madras estates land act. the high companyrt
has given sufficient reasons in support of its view that the
word estate in s. 65 of the abolition act denumberes only
the estate governed by the permanent settlement regulation
and the estates land act and number any other part of the
impartible zamindari. in other words the abolition act has
numberapplication to properties which are outside the
territorial limits of the venkatagiri estate. the result
therefore is that in relation to venkatagiri zamindari the
madras impartible estates act has been repealed so far as
the act applied to the estate which by operation of s. 3  b
of the abolition act has got transferred and became vested
in the state government. in relation to other properties
which have number become so vested in the government the madras
impartible estates act  1904  companytinues to be in force. it
is the case of the plaintiffs that items 14 15 and 16 of
schedule b did number vest in the government under s. 3  b  of
the act. item 14 15 and 16 are motimahal mount road
madras the district judges bungalc nellore and vengatagiri
rajas bungalow kalahasti. it is companyceded on behalf of
defendant number 1 that items 14 15 and 16 did number vest in the
government under s. 3  b  of the abolition act. it is
further claimed on behalf of the plaintiffs that items 14
15 and 16 have become partible properties after the companying
into force of the abolition act and plaintiffs should be
granted their shares of these properties. the companytention of
the plaintiffs is that the zamindari was made impartible by
the agreement entered into by the brothers in 1889 and the
properties which have number been taken over by the government
should be divided among the family members. we have
already given reasons for the view that the zamindari was
impartible independently of the agreement of 1889 and that
the agreement was numbermore than a companyscious affirmation by
the parties of what the position was previously in fact and
in law. to put it differently the agreement of 1889 merely
acknumberledged and defined antecedent rights and antecedent
obligations. it is therefore difficult to accept the
contention of the plaintiffs that the three items of
property in schedule b have become partible properties. since the abolition act did number affect these items the
properties have companytinued to be what they were at the time
of incorporation with the zamindari namely the properties
retain their impartible character. we are also number impressed with the argument that as there
was incorporation of the buildings with the original. impartible estate the building ceased to have any impartible
character when the impartibility of the parent estate was
gone. it is true that the buildings which are outside the
geographical limits of the venkatagiri zamindari cannumber be
brought within the definition of the estate as defined in
the estates lands act and the abolition act cannumber therefore
be made applicable to such buildings. but the buildings
have acquired the character of impartibility as a result of
incorporation with the parent estate and that character
cannumber be lost unless the statute intervenes. section 4 of
the impartible estates act itself companytemplates parts of an
estate being impartible. in pushavathi viziaram gajapathi
rai manne v. pushavathi visweswar gajapathi raj 1  the
effect of integration is described as follows
in all such cases the crucial test is one of
intention. it would be numbericed that the
effect of incorporation in such cases is the
reverse of the effect of blending self-
acquired property with the joint family
property. in the latter category of cases
where a person acquires separate property and
blends it with the property of the joint
family of which he is a companyparcener the
separate property loses its character as a
separate acquisition and merges in the joint
family property with the result that
devolution in respect of that property is then
governed by survivorship and number by
succession. on the other hand if the holder
of an impartible estate acquires property and
incorporates it with the impartible estate he
makes it a part of the impartible estate with
the result that the acquisition ceases to be
partible and becomes impartible. in both
cases however the essential test is one of
intention and so wherever intention is
proved either by companyduct or otherwise an
inference as to blending or incorporation
would be drawn. it was urged on behalf of the plaintiffs that the effect of
the abolition act in regard to venkatagiri estate was to
take away the character of impartibility in relation to
property both inside and outside the territorial limits of
the estate. it was also companytended that the object of the
abolition act was threefold  1  to eliminate the class of
middlemen  2  to abolish permanent settlement and  3  to
introduce ryotwari system. the argument was that in the
face of the avowed objects of the legislation it was futile
to companytend that the character of impartibility still
continued in a truncated form. it was said cessante ratione
legis cassat et ipsa lex  reason is the soul of the law and
when the reason for
 1  1964 2 s.c.r. 403.
any particular law ceases so does the law itself . it is
number possible to accept this principle in the present case. for many times custom outlives the companydition of things
which give it birth. as observed by lord atkinson in rai
kishore singh v. mst. gahenabai 1
it is difficult to see why a family should number
similarly agree expressly or impliedly to
continue to observe a custom necessitated by
the companydition of things existing in primitive
times after that companydition had companypletely al-
tered. therefore the principle embodied in
the expression cessat ratio cessat lex does
number apply where the custom outlives the
condition of things which gave it birth. we accordingly reject the companytention of the plaintiff on
this aspect of the case. we are also unable to accept the companytention of the
plaintiffs that the property of the impartible estate was
held in companyarcenary as joint family property and became
partible amongst the members once it lost its character of
impartibility. in other words the companytention was that
junior members had a present interest in the impartible
estate and were entitled to a share in the estate once
impartibility was removed. in our opinion there is no
justification for this argument. the law regarding the
nature and incidents of impartible estate is number well
settled. impartibility is essentially a creature of custom. the junior members of a joint family in the case of ancient
impartible joint family estate take numberright in the property
by birth and therefore have numberright of partition having
regard to the very nature of the estate that it is
impartible. secondly they have numberright to interdict
alienations by the head of the family either for necessity
or otherwise. this of companyrse is subject to s. 4 of the
madras impartible estates act in the case of impartible
estates governed by the act. the right of junior members of
the family for maintenance is governed by custom and is number
based upon any joint right or interest in the property as
co-owners. this is number made clear by the judicial companymittee
in c.i.t. punjab v. dewan krishna kishore 2  and raja
velugoti sarvagna kumara krishna yachendra bahadur varu v.
raja rajeswara rao  3  the income of the impartible estate
is the individual income of the holder of the estate and is
number the income of the joint family. in the former case sir
george rankin observed
but they find it necessary to say that the
law as declared in the cases of baijnath  2
and shiba prasad

a.t.r. 1919 p.c. 100.  2  68 i.a. 155.  3 68 i.a. 181.
singh  3  has number been unsettled by the
gorakhpur case  1 . the observation itself
and its companytext show that the reference to the
other judgments of the board is companytrolled by
the reference to baijnaths case  2  as having
negatived the view that an impartible estate
could number be in any sense joint family
property. the issue in the gorakhpur case  1
was indarjits right to succeed and the
passage cited was addressed to that. it
appears to waive aside as numberlonger an
obstacle the extreme logic that as there is
numberright to a partition the junior branch
could have numberright actual or prospective
which the enjoyment of maintenance companyld evi-
dence. it need number be taken as swinging to
the opposite extreme indeed it would be in a
high degree unreasonable having regard to the
line of decisions to interpret it as meaning
that there is numberreason why holders of
impartible estates should number number be told
that unless they can prove a custom to the
contrary all junior male members of the
family have a claim for maintenance that is
all who have number relinquished their right of
succession. the point made is only this that
rights of maintenance out of an impartible
family estate however little they may be and
to whichever member they be extended-would number
be enjoyed or enjoyable by anyone who had
ceased to be joint in respect of the estate. in their lordships opinion this should number
be taken to affirm any disputable doctrine as
to the origin of the right of maintenance or
any other doctrine which would make junior
members actual companyowners or the right a
real right in the sense negative by the
board in baijnaths case  2 . to this extent the general law of mitakshara applicable to
joint family property has been modified by custom and an
impartible estate though it may be an ancestral joint
family estate is clothed with the incidents of self-
acquired and separate property to that extent. the only
vestige of the incidents of joint family property which
still attaches to the joint family impartible estate is the
right of survivorship which of companyrse is number inconsistent
with the custom of impartibility. for the purpose of
devolution of the property the property is as i sumed to be
joint family property and the only right which a member of
the joint family acquires by birth is to take the property
by survivorship but he does number acquire any interest in the
property itself. the right to take by survivorship
continues only so long as the joint family does number cease to
exist and the only manner by which this right of
survivorship companyld be put an end to is by establishing that
the estate ceased to be joint family property for the
purpose of suc
6 sup. c.i./70-8
cession by proving an intention express or implied on
behalf of the junior members of the family to renumbernce or
surrender the right to succeed to the estate. in the latest
case anant bhikappa v. shankar ramchandra 1  the judicial
committee clearly affirmed the principle that the property
 was number held in companyarcenary. number an impartible estate is number held in
coparcenary  rani sartaj kauri v. rani deoraj
kuari  though it may be joint family property. it may doolve as joint family property or as
separate property of the last male owner. in
the former case it goes by survivorship to
that individual among those male members who
in fact and in law are undivided in respect of
the estate who is singled out by the special
custom e.g. lineal male primogeniture. in
the latter case jointness and survivorship are
number as such in -point the estate devolves by
inheritance from the last male owner in the
order prescribed by the special custom or
according to the ordinary law of inheritance
as modified by custom. we proceed to companysider the next question arising in this
appeal namely whether the agreement of 1889 in so far as it
related to payment of maintenance allowance of rs. 1000
p.m. to plaintiffs 1 to 4 companytinues to be in force even
after the abolition of the estate -and the vesting of the
zamindari estate in the government under the abolition act. it was argued on behalf of defendant number 1 that plaintiffs
have enjoyed the benefit of payment under s. 45  5  of the
abolition act and got capitalised by the tribunal the
maintenance rights on the basis of the extinction of the
estate. section 45 1   4  and  5  of the abolition act
states
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 numberified date the
following provisions shall apply. the portion of the aggregate
compensation aforesaid payable to the
maintenance-holders shall be determined by the
tribunal and numberwithstanding any arrangement
already made in respect of maintenance whether
by a decree or order of a companyrt award or
other instrument in writing or companytract or
family arrangement such portion shall number
exceed one-fifth of the remainder referred to
in sub-section  3  except in the case
referred to in the second proviso to section
47 sub-section  2 .  1  70 i.a. 232.  .5   a  the tribunal shall in determining
the amount of the companypensation payable to the
maintenance holders - and apportioning the
same among them have regard as far as
possible to the following companysiderations
namely -

the companypensation payable in respect of
the estate

the number of persons to be maintained
out of the estate

the nearness of relationship of the
person claiming to be maintained

the other sources of income of the
claimant and

the circumstances of the family of the
claimants

for the purpose of securing  i  that the
amount of companypensation payable to the
maintenance-holders does number exceed the limit
specified in sub-section  4  -and  ii  that
the same is apportioned among them on an
equitable basis the tribunal shall have
power wherever necessary to reopen any
arrangement already made in respect of
maintenance whether by a decree or order of a
court award or other instrument in writing
or companytract or family arrangement. under the agreement of 1889 plaintiffs 1 to 4 are entitled
to an allowance of rs. 1000/- if paid out of the income of
the zamindari that is to say the income of the venkatagiri
estate strictly so called and the income of the properties
which did number get transferred to the government under the
abolition act. the madras impartible estates act 1904
provides by section 9 for the payment of maintenance of
junior members of an impartible zamindari family. where for the purpose of ascertaining the
succession to an impartible estate the estate
has to be regarded as the property of a joint
hindu family the following persons shall have
a right of maintenance out of the impartible
estate and its income namely -
 a  the son grandson or great-grandson in
the male line born in lawful wedlock or
adopted of the proprietor of the impartible
estate or of any previous proprietor thereof. provided that where maintenance is payable to
a son or grandson by or under any decree or
order of companyrt award companytract family
arrangement or other instrument
in writing and such instrument expressly or
by necessary implication makes it clear that
the maintenance is payable to such son or
grandson as representing his branch of the
family it shall number be open to a son or
grandson of such son or to a son of such
grandson as the case may be during the
period for which such maintenance is payable
to claim maintenance either in his individual
right or as representing his branch of the
family
 b  the widow of any previous proprietor of
the impartible estate so long as she does number
remarry.  c  the widow of the son grandson or great-
grandson of the proprietor of the impartible
estate or of any previous proprietor thereof
so long as she does number remarry provided she
has numberson or grandson living
 d  the unmarried daughter born in lawful
wedlock of the proprietor of the impartible
estate or any previous proprietor thereof and
 e  the unmarried daughter born in lawful
wedlock of a son or grandson of the
proprietor of the impartible estate or of any
previous proprietor thereof provided she has
neither father number mother number a brother
living. explanation.-maintenance shall where
necessary include a provision for residence
and in the case of an unmarried daughter of
the proprietor or any previous proprietor a
provision for the expenses of her marriage in
accordance with the scale customary in the
family. where there is in force an agreement relating to payment of
maintenance the act does number authorise reduction of the
quantum of maintenance provided by such agreement except in
the circumstances stated in s. 14 2 -circumstances which are
number applicable to the present case. it is admitted that
junior members of the venkatagiri family were receiving
maintenance under the agreement of 1889 until the companying
into force of the abolition act. section 45  2  of the abolition act provides for the
ascertainment of the amount of maintenance payable to
persons who before the numberified.-date were entitled to
maintenance out of the estate and its income either under s.
9 or s. 12 of the madras impartible estates act or under any
contract or family arrangement. the total sum payable to
the maintenance holders out of the companypensation should number
under s. 45  4  exceed one-fifth of the remainder of the
compensation after the claims of creditors are satisfied. it is number possible to accept the argument of defendant number 1
that s. 45
should be companystrued as extinguishing the right secured to
junior members under the provisions of companytract or family
arrangement granting a new right limited to the measure
stated in the section. it is manifest that s. 45 is
concerned only with the apportionment at companypensation
amount. the section is companycerned with the rights and
liabilities in relation to properties which are represented
by the companypensation. - there may be a case of an impartable
zamindari where the properties number transferred under s. 3
 b  are quite as valuable as the properties transferred. if in such a case there is a companytract or family
arrangement for the payment of maintenance such companytract or
family arrangement would as regards the quantum of the
allowance have some relation to the total income of the
properties of the zamindari. in the absence of express
words to that effect it would riot be right in our opinion
to attribute to the legislature an intention to free the
properties number transferred to the government by the
operation of s. 3  b  of the act from liability to
contribute towards the maintenance of the junior members
under such a companytract or family arrangement and while
leaving the landholder in possession of those other
properties limit the maintenance holders to a share of a
fifth of the companypensation amount. we are therefore unable
to accept the argument that ss. 45 to 47 of the abolition
act have the effect of extinguishing any rights which the
junior members of the zamindari family may have had before
the numberified date to receive maintenance out of the entire
income of the zamindari under the companytract or family
arrangement. it follows that the agreement of 1889 in so
far as it relates to payment of maintenance of rs. 1000/-
p.m. to plaintiffs 1 to 4 companytinues to be in force in spite
of the companying into operation of the abolition act. under the agreement of 1889 plaintiffs 1 to 4 are entitled
to payment of rs. 1000/- per month from the income of the
venkatagiri zamindari. that part of the zamindari which
consisted of the venkatagiri estate has been companyverted into
compensation deposited and to be deposited in the office of
the tribunal. the first defendant and plaintiffs 1 to 4
would also be entitled to ryotwari pattas under ss. 12 and
47 of the abolition act. it is number disputed that plaintiffs
1 to 4 have been paid rs. 75000/- when the second
instalment of companypensation is deposited by the government. if additional companypensation is allowed under s. 543 of the
abolition act plaintiffs 1 to 4 would get a part of such
additional companypensation. the trial judge calculated that
plaintiffs 1 to 4 have been paid total amount of
compensation to the extent of rs. 137000/-. interest on
this amount at 3 1/2 p.a. works out to rs. 4795/- p.a. the trial judge directed that plaintiffs 1 to 4 would be
entitled to payment of such additional sums which together
with interest would add up to rs. 1000/- p.m. in other
words the plaintiffs 1 to 4 were held entitled to recover
from defendant number 1 the difference
between the interest payable on the companypensation and the sum
of rs. 1000/- p.m. and the difference was made a charge on
items 1 14 and 16 of schedule b properties. the trial
judge directed that interest should be calculated at 3 1/2
p.a. on the companypensation amount. in our opinion the proper
rate of interest should be 5 1/2 p.a. subject to the
modification we companysider that the decree granted by the
trial judge should be restored if during any part of the
period subsequent to september 7 1949 plaintiffs 1 to 4
have number been in receipt of the -amount of rs. 1000/- per
month calculated in the above manner they would be at
liberty to file an application for the recovery of such sums
as may be needed to make up the allowance to rs. 1000/-
per month for that period. for such decree as may be passed
on such application a charge is created on items 1 14 and
16 of plaint schedule b properties. we pass on to companysider the question whether plaintiffs 5 to
7 are also entitled to maintenance at the rate of rs. 1000/- p.m. according to the agreement of 1889. plaintiffs
5 and 6 are illegitimate sons of raja venugopal the
youngest of the four brothers who entered into the
agreement. the seventh plaintiff is the son of the 5th
plaintiff. the material part of the document states
after the life of the said sri venugopala
krishna yachendrulu his purusha santhathi
shall in perpetuity be paid the same
allowance amount that is at the rate of
rupees one thousand  rs. 1000  per month in
the aforesaid manner. but if at any time
in any one of the branches of the said sri
muttukrishna yachendrulu sri venkatakrishna
yachendrulu and sri venugopala krishna
yachendrulu there be more than one male
member much males and their purusha
santhathi shall take the said allowance amount
of rupees one thousand in proportion to their
respective shares in the same manner as they
would respectively take their other properties
separately by way of inheritance according to
the hindu law. the subordinate judge nellore held in o.s. number 30 of 1932
that plaintiffs 5 and 6 were number the purusha santhathi of
venugopal. the decision was affirmed by the high companyrt in
maharajah of venkatagiri v. raja rajeswara rao 1  and on
appeal against the judgment of the high companyrt was dismissed
by the judicial companymittee. that decision is binding upon
the plaintiffs 5 and 6 on the ground of res judicata. the
seventh plaintiff as the son of the 5th plaintiff can claim
numberhigher rights than the 5th plaintiff. it was companytended
that plaintiffs 5 to 7 were entitled to claim that
i l.r. 1933 mad. 622.
allowance under certain other clauses of the agreement of
1889.
reference was made to the following clause
moreover if in any of the aforesaid three
branches of our family viz. the branch of
sri muttukrishna yachendrulu the branch of
venkatakrishna yachondrulu and the branch of
the minumber sri venugopala krishna yachendrulu
any male should die without purusha santhathi
either by way of aurasa or by way of adoption
the allowance amount that was being received
by the person who so died without purusha
santhathi shall go to the gratis  agnates  who
are nearest to him in his own branch according
to hindu law. should the aforesaid person who
dies without purusha santhathi leave any widow
or widows and maintenance has to be paid to
them only the nearest gnatis who get the
allowance of such deceased person in the
manner mentioned above shall be liable
therefor. further should any of the said
three branches of our family become extinct by
the total absence of purusha santhathi either
by way of aurasa or by way of adoption the
allowance being paid to that branch shall be
stopped subject to the companydition that if
there be then a widow or widows- left of the
last male who died in that branch one-half of
the -allowance of rupees one thousand  rs. 1000  that was being paid to that male
namely rupees five hundred  rs. 500  shall
be paid to the widow or widows of the person
who so died without purusha santhathi -as
maintenance for life. this clause provides that on the death of any male member
entitled to maintenance allowance under the deed without
leaving any male issue either by birth or adoption the
-allowance which was received by that person should go
according to hindu law to the gnatis who in the same line as
the deceased are nearest to such deceased member. plaintiffs 5 to 7 alternatively claimed to be the gnatis of
venugopal in our opinion it is number open to plaintiffs 5 to 7
to re-agitate the matter which should have been pressed as a
ground of claim in the previous suit. in any case the
-argument is without substance. it is true that the word
gnati in sanskrit literally interpreted includes a brother
also. but in the companytext of the particular passage in the
agreement it companyld number have been the intention of the
parties that when there was a failure of legitimate or
adopted son gnatis including illegitimate sons would take
the allowance. the question in reality is number whether an
illegitimate brother is a gnati or number for purposes of
succession but whether the word is used in that unusual
sense in the agreement. as pointed out in the previous case
this clause has numberapplication and the case is really
governed by the earlier clause already referred to. we
accordingly reject the argument of plaintiffs 5 to 7 on this
aspect of the case. lastly was companytended on behalf of plaintiffs 1 to 4 that
they were entitled to one-third share of the golden howdah
sub-item 8 of item number 8 of b schedule. the only evidence
upon which plaintiffs relied was clauses 5 and 6 in the will
of rajagopalakrishna dated 22nd september 1910 which states

our venkatagiri samasthanam is an ancient and
impartable estate. it has also been
established by the madras act ii of 1902 that
it is an impartible zamindari. the village
and other landed properties in the talukas of
the aforesaid ancient venkatagiri zamindari
acquired by my ancestors and myself as well
as the houses bungalows forts gardens
places etc. possessed by us in the four
places viz. nellore kalahasthi madras and
banaras those within and around venkatagiri
and those in other taluses all these have been
included in the impartible estate. all these
as well as elephants horses carriages
ambaris  howdahs honzas  seat  and furniture
exclusive of those made of silver and gold
were treated as such  impartible even in the
partition between me and my youngest brother. they shall hereafter also remain as such. it is evident from this clause that what was treated as
impartible were ambaris henzas and furniture exclusive of
those made of silver and gold. in other words silver and
gold howdas were number treated as impartible. companynsel on
behalf of defendant number 1 referred to paragraphs 5 and 6 of
the will which are to the following effect
further as many matters under dispute
between myself and my brothers have to be
settled the value of some goldware silver
were jewel of precious stones etc. belonging
to the estate regalia was paid to my brothers
from out of myself acquired money and i have
taken possession of these items at the time of
partition. besides these some more jewels of
precious stones etc. which were acquired
were paid for from my self-acquired money -and
have been received by-me. clause 6 runs thus
the jewels made of precious stones as well as
gold and silverware which fell to my share
from out of the aforesaid share inclusive of
those which have been improved and companyverted
and mentioned in detail in schedule a
appended hereto. the jewels set with precious
stones and gold and silver were got by me from
my
brothers at the time of partition of paying
their value to them  brothers  from out of
self acquired money. . . . these clauses make it cleat that the golden howdah had been
divided and numberhing was left for further division. in our
opinion the division bench was right in taking the view that
the plaintiffs 1 to 4 are number entitled to division of the
golden howdah. for the reasons expressed we hold that the judgment of the
division bench dated august 13 1965 should be set aside. it is declared that plaintiffs 1 to 4 are entitled under the
agreement of 1889 to be paid rs. 1000/- p.m. out of the
income of the venkatagiri zamindari. out of the
compensation amounts so paid to plaintiffs 1 to 4 interest
shall be calculated at 51 per annum. if the interest so
calculated falls short of rs. 1000/- per month plaintiffs
1 to 4 are entitled to the payment of such additional sums
-as would enable them to be in receipt of a total income of
rs. 1000 - per month. if for any period subsequent to 7th
september 1949 plaintiffs 1 to 4 have number received
allowance of rs. 1000/- p.m. they are granted liberty to
file an application for the recovery of such sums as may be
needed to make up the allowance to rs. 1000/- for that
period.


civil appellate jurisdiction civil appeal number 199 of 1960.
appeal by special leave from the judgment and decree dated
december 1 1955 of the madras high companyrt in second appeal
number 736 of 1953.

ganapathy iyer r. thiagarajan and g. gopalakrishnan
for the appellants. s. prashar a. s. chaturvedi and k. r. chaudhari for
the respondent. 1962. numberember 30. the judgment of the companyrt was delivered
by
mudholkar j. -only one question arises for companysideration in
this appeal by special leave and that is the meaning to be
given to the expression final decision occurring in the
first proviso to s. 28 a of the provincial insolvency act
1920  act number 5 of 1920  introduced by act number 25 of 1948.
for appreciating the argument advanced before us a few facts
have to be stated. venkata reddy the father of the
appellants was adjudicated an insolvent by the sub-court
salem in i. p. number 73 of 1935. at that time only the
appellants 1 and 2 were born while the third appellant was
born later. the fathers one-third share was put up for
auction by the official receiver and was purchased by one
karuppan pillai for rs. 80/-. the official receiver then
put up for auction the two-thirds share belonging to
appellants 1 and 2 on july 27 1936 which was purchased by
the same person for rs. 341/-. he sold the entire property
to the respondent pethi reddy on may 25 1939 for rs. 300/-. the appellants instituted a suit on february 1 1.943 for
the partition of the joint family property to which suit
they made pethi reddy a party and claimed thereunder two-
thirds share in the property puchased by him. in that suit
it was companytended on behalf of the respondent that on their
fathers insolvency the share of the appellants in the joint
family property also vested in the official receiver and
that he had the power to sell it. the companytention was
negatived by the trial companyrt which passed a preliminary
decree for partition in favour of the appellants. the
decree was affirmed in appeal by the district judge and
eventually by the high companyrt in second appeal except with a
slight variation regarding the amount of mesne profits. the
decision of the high companyrt is dated numberember 18 1946. on
january 18 1946 the appellants made an application for a
final decree which was granted ex parte on august 17 1946.
at the instance of the present respondent this decree was
set aside. by that time the new provision that is s. 28 a
of the provincial insolvency act had companye into force. on
the basis of this provision it was companytended by the
respondent that the appellants were number entitled to the
allotment of their two-thirds share in the property
purchased by him inasmuch as that share had also vested in
the official receiver. the district munsif held that act 25
of 1948 which introduced s. 28 a did number affect the
preliminary decree for partition since it had been passed on
august 20 1943. he therefore restored the ex parte final
decree which had been set aside on december 17 1950. the
appeal preferred by the respondent against the decision of
the district
munsif was dismissed by the principal subordinate judge
salem whereupon he preferred a second appeal before the
high companyrt. the high companyrt allowed the appeal and dismissed
the application of the appellant for passing the final
decree
section 28a of the provincial insolvency act runs as
follows
the property of the insolvent shall companyprise
and shall always be deemed to have companyprised
also the capacity to exercise and to take
proceedings for exercising all such powers in
or over or in respect of property as might
have been exercised by the insolvent for his
own benefit at the companymencement of his
insolvency or before his discharge
provided that numberhing in this section shall
affect any sale mortgage or other transfer of
the property of the insolvent by a companyrt or
receiver or the companylector acting tinder s. 60
made before the companymencement of the provincial
insolvency  amendment  act 1948 which has
been the subject of a final decision by a
competent companyrt
provided further that the property of the
insolvent shall number be deemed by reason of
anything companytained in this section to companyprise
his capacity referred to in this section in
respect of any such sale mortgage or other
transfer of property made in the state of
madras after the 28th day of july 1942. and
before the companymencement of the provincial
insolvency  amendment  act 1948.
the objects and reasons set out in the bill which sought to
introduce this provision were to bring the provisions of the
provincial insolvency act
in line with those of the presidency towns insolvency act in
so far as the vesting of the joint family property in the
official receiver upon the fathers insolvency was
concerned. while under the presidency towns insolvency act
in a case of this kind the disposing power of the father
over the interest of his undivided sons also vests in the
official receiver and number merely the fathers own interest
in the joint family property there was divergence of
opinion amongst the high companyrts in india as to whether under
the provincial insolvency act the fathers disposing power
over his undivided sons interest also vests in the official
receiver. a full bench of the madras high companyrt held in
ramasastrulu v. balakrishna rao  1  that it does number. it
was in the light of this decision that in the appellants
suit for partition a preliminary decree was passed with
respect to their two- thirds interest in the joint family
property which had been sold by the official receiver. in
the companyrse of the decision of the full bench a suggestion
was made that the legislature should step in and bring the
provisions of the provincial insolvency act in the relevant
respect in line with those of the presidency towns
insolvency act. the new provision makes it clear that the law is and has
always been that upon the fathers insolvency his disposing
power over the interest of his undivided sons in the joint
family property vests in the official receiver and that
consequently the latter has a right to sell that interest. the-provision is thus declaratory of the law and was
intended to apply to all cases except those companyered by the
two provisos. we are companycerned here only with the first
proviso. this proviso excepts from the operation of the act
a transaction such as a sale by an official receiver which
has been the subject of a final decision by a companypetent
court. the short question therefore. is whether the
preliminary decree for partition passed in this case which
was affirmed finally in second

i.l.r. 1943 mad. 83.
appeal by the high companyrt of madras can be regard as a
final decision. the companypetence of the companyrt is number in
question here. what is however companytended is that in a
partition suit the only decision which can be said to be a
final decision is the final decree passed in the case and
that since final decree proceedings were still going on when
the amending act came into force the first proviso was number
available to the appellants. it is companytended on behalf of
the appellants that since the rights of the parties are
adjudicated upon by the companyrt before a preliminary decree is
passed that decree must in so far as rights adjudicated
upon arc companycerned be deemed to be a final decision the
word decision even in its popular sense means a companycluded
opinion  see strouds judicial dictionary--3rd ed. vol. 1
p. 743 . where therefore the decision is embodied in the
judgment which is followed by a decree finality must
naturally attach itself to it in the sense that it is no
longer open to question by either party except in an appeal
review or revision petition as provided for by law. the high
court has however observed
the mere declaration of the rights of the
plaintiff by the preliminary decree would in
our opinion number amount to a final decision for
it is well knumbern that even if a preliminary
decree is passed either in a mortgage suit or
in a partition suit there are certain
contingencies in which such a preliminary
decree can be modified or amended and
therefore would number become final. it is number clear from the judgment what the companytingencies
referred to by the high companyrt are in which a preliminary
decree can be modified or amended unless what the learned
judges meant was modified or amended in appeal or in review
or in revision or in exceptional circumstances by resorting
to the powers companyferred by ss. 151 and 152 of the companye of
civil procedure. if that is what the high companyrt meant then
every decree passed by a companyrt including decrees passed in
cases which do number companytemplate making of a preliminary
decree are liable to be modified and amended. therefore if
the reason given by the high companyrt is accepted it would mean
that numberfinality attaches to decree at all. that is number the
law. a decision is said to be final when so far as the
court rendering it is companycerned it is unalterable except by
resort to such provisions of the companye of civil procedure as
permit its reversal modification or amendment. similarly
a final decision would mean a decision which would operate
as res judicate between the parties if it is number sought to
be modified or reversed by preferring an appeal or a
revision or a review application as is permitted by the
code. a preliminary decree passed whether it is in a mort-
gage suit or a partition suit is number a tentative decree but
must in so far as the matters dealt with by it are
concerned be regarded as companyclusive. numberdoubt in suits
which companytemplate the making of two decrees--a preliminary
decree and a final decree-the decree which would be
executable would be the final decree but the finality of a
decree or a decision does number necessarily depend upon its
being executable. the legislature in its wisdom has thought
that suits of certain types should be decided in stages and
though the suit in such cases can be regarded as fully and
completely decided only after a final decree is made the
decision of the companyrt arrived at the earlier stage also has
a finality attached to it. it would be relevant to refer to
s. 97 of the companye of civil procedure which provides that
where a party aggrieved by a preliminary decree does number
appeal from it he is precluded from disputing its. companyrectness in any appeal which may be preferred from the
final decree. this provision thus clearly indicates that as
to the matters companyered by it a preliminary decree is
regarded as embodying the final decision of the companyrt pass-
ing that decree. the high companyrt however thinks that a decision cannumber be
regarded as final if further proceedings are required to be
taken for procuring the relief to which a party is held
entitled by that decision. in support of its view the high
court has referred to the following observations in in re a
debtor 1
it is clear. therefore that further
proceedings will be necessary to get the money
out of companyrt and i think it is also clear that
the order of october 24 in its own terms did
number finally determine. the right of the
petitioner or any one else in respect of the
sum to be paid. in my opinion therefore the
order is number a final order
in that case the divorce companyrt made an order that the company
respondent do within seven days from the service of this
order pay into companyrt the sum of pound 67 is. 9d. being the
amount of the petitioners companyts as taxed and certified by
one of the registrars of this division. the order was made
in that form because at that time the ultimate fate of the
petition was undecided. numberdoubt the decree nisi had been
passed but it had yet to be made absolute land the right of
the petitioner to receive the companyts might never have been
brought to fruition. the money had therefore to be paid
into the companyrt. a little latter a further order was made by
the president of the divorce companyrt in these terms
upon hearing the solicitors for the
petitioner i do order that the order herein
dated the 11th day of july 1928 be varied and
that  the debtor  the companyrespondent do within
seven days from the service of this order pay
to messrs h. l. lumley company of 35 picadilly
w. 1 the solicitors of the petitioner the
sum of pound 67 is. 9d. being the amount of
the petitioners taxed companyts as taxed and
certified by one of the
 1 1929 2 ch 146.
registrars of this division the said
solicitors undertaking to lodge in companyrt any
sums recovered under this order. pursuant to this order the solicitors gave an undertaking
required by the companyrt to the registrar on october 26. on
numberember 5 the decree nisi was made absolute. on january
2 1929 a bankruptcy numberice was issued by the solicitors
against the debtor for payment to them of the amount of
pound 67 1 s. 9d. the companyrespondent did number companyply with the
bankruptcy numberice and accordingly on january 27 the
solicitors presented a bankruptcy petition against him. over-ruling the objection by the companyrespondent that is the
debtor that the bankruptcy numberice was bad on amongst other
things the ground that the second order made by the
president of the divorce division was number a final order
within sub-s. 1  g  of s. 1 of the bankruptcy act 1914
the registrar made a receiving order. in appeal it was
contended that the receiving order was wrong because the
solicitors were number the creditors of the debtor and also
because the order for payment of the companyts to them was number a
final order. while upholding the latter companytention lord
hanworth m. r. said what has been quoted above and relied
upon by the high companyrt. upon the particular facts of the
case the order was clearly number a final order and in making
the observations quoted above the master of rolls did number
formulate a test for determining what companyld be regarded as a
final order in every kind of case. the observations of the
master of rolls must be read in the companytext of the facts of
the case decided by him. read that way those observations
do number help the respondents. apart from this the short answer to the reason given by the
high companyrt is that even a money decree passed in a suit
would cease to be a final decision because if the judgment-
debtor against whom the
decree is pawed does number pay the amount voluntarily
execution proceedings will have to be taken for re-
covering the amount from him. it would thus lead to an
absurdity if the test adopted by the high companyrt is accepted. in support of the high companyrts view a few decisions were
cited at the bar but as they are of numberassistance we have
number thought it fit to refer to them. we may however refer
to a decision of this companyrt upon which reliance was placed
by the respondents. that is the decision in vakalapudi sri
ranga rao and others v. mutyala ammanna  1  in which it was
held that a particular order was number a final decision within
the meaning of the first proviso to s. 28-a. there in a
suit for partition and anumberher suit for possession of the
suit property and arrears of rent it was companytended that
upon the fathers insolvency the official receiver was in-
competent to sell the sons interest in the joint family
property. the companytention was negatived by the trial companyrt
but upheld in appeals by the subordinate judge who remanded
the suits to the trial companyrt with certain directions. appeals preferred against his decision were dismissed by the
high companyrt. before the decision of the suits after remand
the amending act xxv of 1948 came into force and it was
contended before the trial companyrt that in view of the new
provision the sale by the official receiver must be held to
be good even so far as the sons interest was companycerned. this companytention was negatived by the trial companyrt on the
ground that the decision of the high companyrt on the point was
a final order within the meaning of the proviso. the
district judge before whom appeals were preferred however
negatived the companytention and held that there was numberfinal
order with regard to the sale by the official receiver. the
high companyrt reversed the decision of the district judge but
this companyrt held that the orders of remand made by the
subordinate judge and upheld by the high companyrt were
interlocutory orders as also were the orders of

c.a. number 634 of 1957 decided on march 29 1961.
the high companyrt in the appeals prefer-red before it and as
such companyld be challenged in the appeal preferred before this
court against the decision of the high companyrt in the appeal
against the final decree in the suit. in the case before us
the preliminary decree was never challenged at all by
preferring any appeal and therefore the matters companyclude
by it are number open to challenge in an appeal against the
final decree. further a preliminary decree cannumber be
equated with an interlocutory order within the meaning of s.
105 companye of civil procedure. it will thus be seen that the
decision relied upon has numberapplication to the facts of this
case. our companyclusion therefore is that in this case the sale
made by the official receiver during the insolvency of the
appellants father was the subject of a final decision by a
competent companyrt inasmuch as that companyrt decided that the sale
was of numberavail to the purchaser at the official receiver
had numberpower to effect that sale. numberhing more was required
to be established by the appellants before being entitled to
the protection of the first proviso to s.28a.