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Legal Provisions Regarding

Indivisible Property under


Hindu Law
As the name suggests Indivisible estate is the property which is indivisible and is held
by the eldest member of the family. In fact it is the property which is not a separate or
self-earned property of an individual; rather it devolves under some special law or
custom upon the eldest member of the family to the exclusion of all others. It includes
Zamindaris, Jagirs, Saranjams, Raj or Sovereignity, Royal grants of revenue for
services etc. Privy Council has laid down in Martand Rao v. Malhar Rao following
essentials of indivisibility:

(1) Whenever there is dispute as to whether an estate is Indivisible or not, burden of


proof is on who claims it to be Indivisible by custom, according to which such estate is
held by a single member and the ordinary rules of inheritance do not apply to it.

(2) When the existence of any such custom is pleaded, according to which the ordinary
rules of evidence do not apply, it has to be clearly proved that the customs were very
ancient.

The Supreme Court in Mirga Raja Pushparathi Vijayaram Gajapathi v. P.


Vishweswar,observed that an estate which is Indivisible by custom cannot be said to be
the separate or exclusive property of the holder of the estate. If the holder has got the
estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a
part of the joint estate of the undivided Hindu family.
It is only because of the right of survivorship which applies with respect to Indivisible
estate it can be regarded in the eyes of law as a joint family property. The right of
survivorship in the present context cannot be confused with mere spes successionis.
Unlike spes successionis, the right of survivorship can be renounced or surrendered.
Origin of Indivisible Estate:
The Indivisible estate is said to have originated in three ways

(i) Properties of such independent chiefs who have gradually in course of time became
ordinary Zamindars.

(ii) In some cases, share of the rents and profits of the landed property is held by only a
single member of the family, and is descendible to a single heir by primogeniture.

(iii) In other cases estates created by family arrangements which have been protected
through generations.

Those estates too come under this category which are by nature indivisible and which
are of common use. Family temples, idols, ponds, wells etc. come under this head
which can never be divided. In the similar manner unless the residential house is so big
to be divided, it has to be used by the members of family one after another.

(d) Those Jagirs which were given for any purpose or for collecting revenue (in Muslim
period) which became indivisible estate subsequently.

Incidents of Indivisible Property:


Following are the incidents of an Indivisible estate

(1) Promigeniture:
The custom of promigeniture regulates the succession of an Indivisible estate, by which
the eldest male member holds the property to the exclusion of others. Normally this role
is of two kinds, lineal and ordinary. In lineal the eldest in the line is preferred whereas in
ordinary the estate goes to the male agnate who is nearest to the common ancestor.

The Orissa High Court has held in Hare Krishna v. Bhagirath Sahu, that mere
jesthansa as such de hors of any other consideration, has no sanction of law; but
inequality of shares should not be equated with jesthansa to afford a ground to
impeach a partition deed otherwise valid. There may be various reasons why a member
is given a bigger slice.
Only upon the ground that some properties have still to be divided or had been left over
for partition, the partition cannot be re-opened.
The income of the Indivisible estate and the accumulations to the income are the
absolute property of the holder. Such income is not to be treated as a joint family
incomenor it is treated as accretion to the estate.

2. Accretion:
It is possible that the holder of an Indivisible estate may incorporate whole of his
property to the Indivisible estate so as to make it descendable by a single heir. In such a
case unless otherwise provided all other properties acquired by him also form part of
this Indivisible estate. The Orissa High Court has in Bishnu Priya Devi v. Brusabhanu
Mohapatra held that where a holder of an Indivisible estate acquires new assets, in
absence of any material to the contrary, such acquisition also would be Indivisible.

3. Right of Alienation:
A holder of the estate can alienate the estate by will or gift unless prohibited or restricted
by any family custom or by the very nature of the tenure. This right can also be
exercised by the holder when the family is undivided, but such right can be restricted by
the traditions or the family.
Recently the Supreme Court has approved the above view in Thakur Sri Vinaya Singhji
v. Kumar Sri Natzvar Singhji and observed that the holder of an Indivisible estate has
the power of alienation not only by transfer inter vivos, but also by a will, even though
the disposition by will may altogether defeat the right of survivorship of the junior
members of the family.
When under certain circumstances the right of a coparcener to take by survivorship can
be defeated, no exception can be taken, if the right of survivorship of junior members of
an Indivisible estate to succeed to it is defeated by the holder thereof by disposition by a
will. Thus the holder has an absolute unlimited right of alienation. In an another case
Sartaj Kunwar v. Devraj Kunwar, the question arose as to the validity of a gift of a part of
Raj. Raj is an Indivisible estate.
The son of the owner of Raj challenged the gift on the ground that except in the case of
extreme necessity, the Raj being an Indivisible estate cannot be alienated. The court
held the gift of Raj is valid because in the present case the owner of Raj was an
absolute estate in his hands hence he could give it by way of gift. It could be challenged
only by a co-owner of the Raj.
4. Maintenance:
No junior member can claim a right in the Indivisible estate. Junior members who are
neither brothers nor sons of any holder do not have any right of maintenance unless
they furnish any adequate proof of custom in this regard.
So far as the sons right is concerned it is also qualified one. Sons of the holders are
only entitled for maintenance when the estate is held as ancestral joint family property
and there is a custom for providing maintenance to them. But there is no such custom
when the property is a self acquired one.
The above view upheld in Sri Raja Velugoti v. Sri Raja Velogoti by the Supreme Court.
The court observed that the junior members do not have any right by birth, nor a right to
demand partition, nor to interfere with alienation. They do not have even the right to
maintenance. They can claim maintenance only on the basis of some established
customs. Where the Indivisible estate is ancestral the sons can claim the right to
maintenance. But in case of its being self-acquired, the holder of the estate is not bound
to give maintenance.

The Gujarat High Court in Chandra Kunwar v. Randhir Singh has held that the
successor of Indivisible estate although holds it by the rule of primogeniture, yet he is
under a legal obligation to part with certain sum for the maintenance of the widow of the
last holder of the estate.

5. Indivisible EstateWhether Coparcenary or Joint Hindu


Family Property?
Ancestral Indivisible estate, as far as the right of common enjoyment and the right to
demand partition is concerned, is not a coparcenary property. In such a case if the
holder dies intestate, the estate devolves upon the eldest member by survivorship. The
Supreme Courts decision in Desai v. Desai, is important. It was held that if the
Indivisible estate is ancestral, it does not become the exclusive estate of the holder
simply because he holds it.
It remains a joint estate of the joint family. The impartibility of estate does not destroy its
character of being joint family estate. Nor does it destroy the right to survivorship on
account of being in possession of the holder of the estate. It remains a joint estate and
according to common law devolves upon that member of joint family who is living jointly
with the other members of the family and is seniormost.
Thus unless the younger members of the family do not receive their right either
expressly or tacitly, the Indivisible estate continues to be the joint family property. It is
therefore dependent upon the fact as to whether the other members have relinquished
their rights or not. In a judgment given by Supreme Court in Dattatiya v. Krishna Rao, it
has been laid down:

The income of an Indivisible estate is not income of the undivided family but is the
income of the present holder, notwithstanding that he has sons or brothers from whom
he is not divided. The very facts that the sons or brothers right to maintenance arises
out of the eldest brothers possession of Indivisible estate and is a right to be
maintained out of the estates, do not make it a right of a unique or even exceptional
character or involve the consequences at Hindu law that the income of the estate is not
the holders income.

The holder of Indivisible estate can incorporate other properties belonging to him in if so
as to make them also Indivisible and descendable to a single heir by survivorship. It is
one of intentions to be proved as a fact whether the accretions are his separate
properties or incorporated as part of Indivisible estate. The intention may be express or
implied by conduct or treatment of the properties.

A joint Indivisible estate is always held by one member and the other members enjoy
only the maintenance. But if the junior members forgo their right of maintenance this will
amount to separation of the estate. The person alleging separation is required to prove
it.

Rules of Succession:
Following rules can be deduced with respect to the succession of Indivisible estate

(1) The general rules of succession of partible estate are with some modifications also
applicable to Indivisible Property.

(2) One of the modifications is that out of the successors only one successor is liable to
succeed the estate.

(3) In absence of any custom or tradition the rule of promigeniture frunishes a sufficient
valid ground of succession.
(4) In absence of any tradition the eldest son means the son who was born earlier,
either from the eldest wife or youngest one.

(5) Every male becomes the new member of the descent.

(6) The nearness in blood relationship is no ground of preference. But where the
Indivisible estate is the separate property of the last holder, relatives by full blood shall
be preferred to relatives by half blood.

(7) Where a male member is qualified to succeed and is in existence, the females are
excluded, but such exclusion is not absolute in nature.

(8) In case of several claimants, persons having superior right are entitled to inherit.

The Hindu Succession Act has abolished the Indivisible Property except those saved by
Section 5(ii) thereof. Thus the rules of succession of Indivisible Property cease to have
force.

Debts:
The successor to an Indivisible estate is bound to pay secured and unsecured debts of
the last holder according to Calcutta and Allahabad High Courts.