Misra, J.

1. These two connected appeals were directed against a common judgment dated February 28, 1968 of the Patna High Court, the first one by certificated and the second by special leave.

2. Bhaiya Rudra Pratap Deo was the holder of an impartible estate, known as Nagaruntari Estate, in the district of Palamau. The succession to the estate was governed by the rule of lineal primogeniture. Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members of the family were entitled only to maintenance grants subject to resumption on extinction of an heir in the male line of the eldest branch.

3. It appears that the estate was accorded protection under the Chota Nagpur Encumbered Estate Act, 1876, on the application of Bhaiya Rudra Pratap Deo as per notification dated March 17, 1932 published in the Bihar Gazette dated March 23, 1932 and after liquidation of debt it was released from the operation of Chota Nagpur Encumbered Estates Act in October 1945. Eventually the Estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950 in pursuance of a notification dated November 5, 1951. Harihar Pratap Deo, who was the younger brother of Bhaiya Rudra Pratap Deo had died in a state of jointness with jointness with his brother Bhaiya Rudra Pratap Deo 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other stepson who was also died in 1937 unmarried. Lalu Maheshanuj Pratap Deo demanded land for khorposh (maintenance) from Bhaiya Rudra Pratap Deo in 1950. Bhaiya Rudra Pratap Deo executed a deed of maintenance on April 14, 1952 in respect of eight villages in favour of Lalu Maheshanuj Pratap Deo. A dispute, however, arose between the parties in respect of the plots of village Sigsigi which culminated in a proceeding under Section 144, CrPc. The proceedings were, however, later converted into proceedings under Section 145, CrPc which ended in favour of Lalu Maheshanuj Pratap Deo on July 4, 1955. Bhaiya Rudra Pratap Deo feelings aggrieved by the order filed suit which has given rise to the present appeals and which was later on numbered as suit No. 16 of 1955 against Lalu Maheshanuj Pratap Deo alias Nila Bacha in respect of the agricultural plots of Village Sigsigi and the grains in the custody and control of the police, Bisrampur, District Palamau.

4. The case of the plaintiff is as follows : After the vesting of the Estate in the State of Bihar and the defendant approached him with a request that the plaintiff should give him the villages Bhojpur, Jaungipur, Chitri, Rohila, Bhandar and Khundra but the plaintiff declined to do so as Section 12-A of the Chota Nagpur Encumbered Act and the provisions of the Bihar Land Reforms Act stood as a bar. The defendant, however, implored and wanted to take a chance and try his luck. On the beseechment of the defendant the plaintiff allowed him six villages only, namely, Bhojpur, Jaungipur, Chitri, Rohila, Bhandar and Khundra subject to acceptance of State of Bihar. There was neither any proposal for villages Sigsigi and Patihari nor had the plaintiff ever agreed to give these two villages to the defendant. A formal unstamped and unregistered deed of khorposh (maintenance) was no doubt created in respect of only six villages on April 14, 1952 subject to the approval of the authorities. The defendant, however, in collusion with the plaintiff employees and ex-employees and without the knowledge and information of the plaintiff managed to use the plaintiffs signature and manufactured evidence to show that the two villages Sigsigi and Patihari had also been included in Khorposh grant and included these two villages in the formal deed dated 14, 1952 in collusion with the typist and designing persons by perpetrating fraud of the plaintiff.

5. When the plaintiff came to know of the fraud and fabrication of the defendant he lodged protest before the authorities and the authorities refused to accept the plea to khorposh and they ordered the villages to be included in the compensation list of the plaintiff and the rent of all the sirjot lands was fixed in favour of then plaintiff. Thus, no khorposh grant remains even in respect of the six villages and such grants, if any, are void under Section 12-A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act. Even assuming for the sake of argument that the two village Sisigi and Patihari were included in the deed dated April 14, 1952, the transfer is void ab initio and no title accrued to the defendant on that basis.

6. At the time proceedings under Section 145, CrPc paddy crops grown by the plaintiff were standing on the petition of the plaintiff the same were harvested by the police. Subsequent cultivation was also done through the police, Bisrampur and the plaintiff is entitled to all the grains in the custody of the police.

7. On these allegations the plaintiff sought a declaration that the land in dispute, detailed in Schedule A, situated in village Sigsigi was the Khasjot land of the plaintiff, that the defendant had no concern therewith and that he (the plaintiff) was entitled to the grain or the value thereof as detailed in Schedule B. The plaintiff also claimed a relief for possession over the disputed plots and the grain or the value thereof. A relief for mesne profits to be ascertained in subsequent proceedings was also claimed.

8. Bhaiya Rudra Pratap Deo, the plaintiff, died during the pendency of the suit and his two sons four widows got themselves substituted in his place. His eldest son, Bhaiya Ramanuj Pratap Deo filed a petition before the trial court for substitution in place of his deceased father alleging that the Nagaruntari Estate was an impartible estate governed by the rule of lineal primogeniture under which the eldest son alone alone is entitled to succeed his father. His prayer was allowed. Subsequently the second son Bhaiya Rudra Pratap Deo and his widows filed a petition for being substituted. The sub-Judge imploded all these persons provisionally as plaintiffs ordering to strike out an issue as to which of them was or were entitled to fruits of the litigation, if eventually the court decide the suit as against the defendant. The conduct of the suit was given to plaintiff 1 under the provisions of Rule 11, Order 1, CPC

9. The suit was contested by the defendant on the following grounds amongst others : The Nagaruntari Estate was never an impartible estate governed by the rule of lineal primogeniture but in its origin it was non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of the revenue paying estate and thus it became an ordinary joint family property partible amongst the members. His father died in a state of jointness with Bhaiya Rudra Pratap Deo sometime in 1934 when he was only four years old an he was living under the guardianship of his uncle. He was made to carry an impression, due to propaganda made by his uncle Bhaiya Rudra Pratap Deo that Nagarunatari Estate was an impartiable estate and being under this wrong impression he subsequently filed an application against his uncle in 1950 claiming khorposh grant of 22 villages including village Sigsigi from out Nagaruntari Estate and also partition of the self-acquired property of his grandfather. That application was, however, rejected. The Nagaruntari Estate later on vested in the State of Bihar under the Bihar Land Reforms Act. Thereafter Bhaiya Rudra Pratap Deo of his own accord executed a khorposh deed in his favour in respect of eight villages including Sigsigi and got it typed in his house and sent it to him with a direction to take possession of the eight villages and accordingly he took possession of the same. The defendant denied that he had fraudulently got was illegal. The defendant claimed that he was co-sharer with the plaintiff and was entitled to remain in possession of all the eight villages covered by the khorposh deed till partition was made.

10. The subordinate Judge held that by the khorposh deed Bhaiya Rudra Pratap Deo had in fact given to the defendant in khorposh eight villages including Village Sigsigi but the defendant did not acquire any interest in the said land on the basis of the khorposh deed as the same was against the provisions of Section 12-A of the Chota Nagpur Encumbered Estate Act and the Chota Nagpur Tenancy Act; that Nagaruntari Encumbered Estate Act and the Chota Nagpur Tenancy Act; that Nagaruntari Estate was an impartible estate governed by the rule of lineal primogeniture but it ceased to be so after the enforcement of the Hindu Succession Act, 1956 in June 1956 and since Bhaiya Rudra Pratap Deo died after this Act came into force the succession to the estate would be governed by survivorship as contemplated by Section 6 of the Hindu Succession Act. As such the plaintiffs, as well as the defendant would succeed. The defendant is thus entitled to remain in possession of the said property as one of the co-owners and the plaintiffs could not claim an exclusive khas possession till the matter is decided in a partition suit. On these findings he dismissed the suit.

11. Feeling aggrieved by the decision heirs and legal representatives of Bhaiya Rudra Pratap Deo, the deceased plaintiff, preferred an appeal. On appeal the District Judge confirmed the findings of the trial court. He, however, held that the grant of khorposh by Rudra Pratap Deo after the release of the estate from the management of the Chota Nagpur Encumbered Estates Act was void under Section 12-A of the Act as the khorposh grant was not made with the sanction of the Commissioner and also because the possession of the ex-proprietor with respect to the Bakasht land became that of raiyat under the State of Bihar and the raiyat right was not transferable without a registered document. Thus, the possession of the defendant was on the basis of a void document. The learned Judge further held that the document of khorposh being unregistered was not admissible in evidence but it could be used for a collateral purpose of explaining the nature of possession; that the defendant being a minor member of the family was put in possession of the property covered by it by the holder of the estate and his possession was as khorposh-holder (maintenance holder) and not as a trespasser and he was not liable to be evicted. The Nagaruntari Estate was found to be an impartible estate where succession was governed by the rule of lineal primogeniture. But after the death of Bhaiya Rudra Pratap Deo Section 6 of Hindu Succession Act became applicable and the devolution of the property would not be governed by the rule of lineal primogeniture but by the ordinary rule of succession as provided under the Hindu Succession Act. It was also held that Rudra Pratap had died in a state of jointness with the defendant and after Hindu Succession Act came into force the Nagaruntari Estate became an ordinary joint family property of the parties and that the possession of the defendant was as a co-sharer. On these findings the appeal filed by the plaintiffs was dismissed by the District Judge.

12. Undaunted, the plaintiffs preferred a second appeal in the High Court which was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mesne profits for their share, that is, one-half in addition to the entire mesne profits to which Rudra Pratap was entitled in his lifetime. Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them.

13. First we take up Appeal No. 209 of 1970 filed by Bhaiya Ramanuj Pratap Deo, heir and legal representative of deceased plaintiff.

14. Mr. S.C. Misra assisted by Mr. U.P. Singh raised a number of contentions. His first contention is that the rule of lineal primogeniture survived even after the enforcement of the Hindu Succession Act. To appreciate the contention it will be necessary to examine the relevant provisions of the Act. Section 4(1)(a) of the Act lays down :

Section 6 of the Act provides :

15. Faced with this situation the learned counsel for the appellant invokes Section 5(ii) of the Hindu Succession Act. Insofar as it is material for the present discussion it reads :

This section protects an estate which descends to a single heir by the terms of the covenant or agreement entered into or by the terms of any enactment inasmuch as Hindu Succession Act is not applicable to such an estate. This section stand as an exception to Section 4 of the Act referred to above.

16. It is urged by Shri Misra that the rule of lineal primogeniture in the instant case is a statutory rule and not a customary rule and therefore it is saved by Section 5(ii) of the Hindu Succession Act, In support of his contention he placed reliance upon Bengal Regulation 10 of 1800. Bengal Regulation 10 of 1800 reads as under :

17. The following propositions are clearly deducible from this Regulation :

18. This analysis of the Regulation leads to the further proposition that it did not by its own force declare that any estate would descend to a single heir. All that it did was to keep alive the custom sanctioning the rule of primogeniture entailing impartiability of the estate. The rule of custom was thus recognised as such and no estate by the terms of the Regulation itself was made to descend to a single heir. In this view of the matter clause (ii) of Section 5 of the Hindu Succession Act does not cover such a custom.

19. Alternatively it was argued that even if the rule of lineal primogeniture did not survive after the enforcement of the Hindu Succession act the suit land will be deemed to be settled with the plaintiff under Section 6 of the Bihar Land Reforms Act and plaintiff became the exclusive owner of the suit land. Section 6 of the Bihar Land Reforms Act, 1950, insofar as it is material for this case, reads :

This section only contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold it as a raiyat under the State having occupancy rights in the respect of such land subject to payment of fair and equitable rent. But if the intermediary was in possession in a representative capacity on behalf of the other coparceners, as a necessary corollary the land will be deemed to be settled with all those persons on whose behalf one particular intermediary was in khas possession. Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to be settled with all those coparceners and they shall all become raiyats

20. It is nobodys case that there has been any partition between the plaintiff and the defendant. The joint status of the family continued and, therefore, after the death of Bhaiya Rudra Pratap Deo, his interest devolved on other coparceners as well.

21. It was next contended for the appellant that the defendant got the land under a khorposh deed which was void ab initio and, therefore, the status of the defendant was that of a trespasser and the he was liable to ejectment on the suit of the plaintiff. According to the appellant the khorposh deed was void for two reasons : firstly because there was no sanction of the Commissioner for the deed as contemplated by Section 12-A of the Chota Nagpur Encumbered Estate Act, 1876; secondly because the deed was neither stamped nor registered. In order to appreciate the first reason it is pertinent to read Section 12-A insofar it is material for the purpose of the case :

Section 12-A would be attracted only when possession and enjoyment of property is restored under the circumstances mentioned in the first or the third clause of Section 12. It was for the plaintiff to show that the conditions contemplated by Section 12 were satisfied, which he was failed to do.

22. As regards the second reason, the arguments is based on Section 17 read Section 49 of the Indian Registration Act. Section 17 of the Registration Act enumerates the documents requiring registration Section 49 of the Registration Act provides that no document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall (a) affect any immovable property comprised therein, (b) * * *, (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Khorposh (maintenance) deed is a document which requires registration within the meaning of Section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property. Proviso to Section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument. In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.

23. Admittedly the defendant was a member of a joint Hindu family, Even in an impartible estate was entitled to maintenance and the land in dispute had admittedly been given to the defendant by the impartible estate holder. His possession, therefore, cannot be taken to be the possession of a trespasser and the High Court in our opinion has erred in branding the defendant as a trespasser.

24. This leads us to the last, but not the least in importance, contention raised on behalf of the appellants. According to Shri S.C. Misra the original plaintiff being holder of an impartible estate, his estate would go to his successors alone and not to the other members of the family by survivorship. The learned counsel relied upon the following cases in support of his contention : Rajah Velugoti Kumara Krishan Yachendra Varu v. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu [(1970) 3 SCR 88 [LQ/SC/1969/448] : (1969) 3 SCC 281 [LQ/SC/1969/448] ], Raja Rama Rao v. Raja of Pittapur [(1918) LR 45 IA 148 : AIR 1918 PC 81 : 16 ALJ 833], Hargovind Singh v. Collector of Etah [AIR 1937 All 377 : 1937 ALJ 610], and Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards [(1899) LR 26 IA 83 : ILR 22 Mad 383].

25. In Rajah Velugoti Kumara Krishna Yachendra Varu v. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu [(1970) 3 SCR 88 [LQ/SC/1969/448] : (1969) 3 SCC 281 [LQ/SC/1969/448] ], the first and the foremost case relied upon, a contention was raised on behalf of the plaintiff that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartiability. In other words the contention was that the junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartiability was removed. This argument was repelled and this Court observed : (SCC p. 296 para 17)

This Court, however, further exposed the legal position in these words : (SCC p. 296, para 17)

26. In Raja Rama Rao v. Raja of Pittapur [(1918) LR 45 IA 148 : AIR 1918 PC 81 : 16 ALJ 833] it was held :

27. In Hargovind Singh v. Collector of Etah [AIR 1937 All 377 : 1937 ALJ 610] the Allahabad High Court quoted with approval the following observations made by the Privy Council in Baijnath Prasad Singh v. Tej Bali Singh [43 All 228 PC : AIR 1921 PC 62 : 19 ALJ 317] :

28. In Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards [(1899) LR 26 IA 83 : ILR 22 Mad 383] it was laid down that an impartible zamindari was not inalienable by Will or otherwise by virtue only of its impartiability, and in the absence of the proof of some special family custom or tenure attaching to the zamindari and having that effect.

29. This question, however, need not detain us long as this Court had the occasion to consider the point at great length in Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur v. Pushavathi Visweswar Gajapathi Raj [(1964) 2 SCR 403 [LQ/SC/1963/68] : AIR 1964 SC 118 [LQ/SC/1963/68] ]. Dealing with the point in question this Court observed as follows :

30. Prior to the decision of the Privy Council in the case of Rani Sartaj Kuari v. Deoraj Kuari [(1988) LR 15 IA 51 : ILR 10 All 272] it was always assumed that a holder of an ancestral impartible estate cannot transfer or mortgage the said estate beyond his own lifetime so as to bind the coparceners, expect, of course, for purposes beneficial to the family and not to the himself alone. In 1888, however, this view was shaken by the decision of the Privy Council in Rani Sartaj Kuari Case [(1988) LR 15 IA 51 : ILR 10 All 272]. In the case, the holder of the estate and gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son. The sons plea, however, failed because the Privy Council held that "if, as their Lordships are of opinion, the eldest son, where the Mitakshara law prevails and there is the custom of primogeniture, does not become a co-sharer with his father in the estate, the inalienability of the estate depends upon the custom, which must be proved, or it may be in some cases, upon the nature of the tenure". This decision was again affirmed by the Privy Council in the First Pittapur case [(1918) LR 45 IA 148 : AIR 1918 PC 81 : 16 ALJ 833]. As a result of these decisions it must be taken to be settled that a holder of an impartible estate can alienate the estate by gift inter vivos, or even by Will, though the family is undivided; the only limitation on this power would flow from a family custom to the contrary or from the conditions of the tenure which has the same effect.

31. Again in Chinnathayi alias Veeralakshmi, v. Kulasekara Pandiya Naicker [1952 SCR 241 [LQ/SC/1951/73] : AIR 1952 SC 29 [LQ/SC/1951/73] : 1952 SCJ 1 [LQ/SC/1951/73] ] it was held by this Court that to establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied on the part of the junior members of the family to giver up the chance of succeeding to the estate. In each case it is incumbent on the plaintiff to adduce a satisfactory grounds for holding that the joint ownership of the defendants branch in the estate was determined so that it became the separate property of the last holders branch. The test to be applied is whether the facts show a clear intention to renounce or surrender an interest in the impartible estate or the relinquishment of the right succession and an intention to impress upon the zamindari the character of separate property. In Pushavathi Viziaram Gajapathi Raj Manne case [(1964) 2 SCR 403 [LQ/SC/1963/68] : AIR 1964 SC 118 [LQ/SC/1963/68] ] this Court reiterated the same legal position.

32. For the foregoing discussion this appeal must fail.

33. This leads us to the other appeal filed by the defendant. The contention of the learned counsel for the defendant-appellant in this case is that the possession of the appellant was not as a trespasser but he was a maintenance holder on the khorposh grant (maintenance) given by the impartible estate holder. This High Court, therefore, erred in law passing a decree for possession and mesne profits against the defendant-appellant. It was further contended that the Nagaruntari Estate was a partible estate.

34. As regards the first contention it is open to a co-sharer to remain in the possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted. The learned counsel for plaintiff-respondent on the other hand urged that the defendants possession was only as a trespasser. In support of his contention he placed reliance on Collector of Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469 [LQ/SC/1951/56] : 1952 SCR 43 [LQ/SC/1951/56] : 1951 SCJ 752 [LQ/SC/1951/56] ]. The majority took the view that :

35. In the instant case the defendant being a member of joint Hindu family was entitled to maintenance from the impartible estate holder. The impartible estate holder executed a khorposh deed in favour of the defendant. If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant-appellant. This being the position in the instant case, the case cited above is not of much help to the plaintiff-respondent. In that case the sole basis of the title itself was invalid. A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed. The execution of the document is not denied by the plaintiff. All that he says is that Village Sigsigi was not included in the deed.

36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred in passing the decree for possession and mesne profits against the defendant. The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.

37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.

38. In the result the first Appeal No. 209 of 1970 filed by the plaintiff is dismissed while the other appeal filed by the defendant, No. 2280 of 1970, is allowed and the decree passed by the High Court is set aside and the decree of the trial court affirmed by the first appellate court, is restored.

39. In the circumstances of the case we direct the parties to bear their own costs.