2. Whether coparcenary or joint family property:
An impartible estate is not held in coparcenary, though it may be joint family property. (Anant ì. Shankar, 1944, 46 Bom. L.R. 1 P.C.)
Though in the case of a Mitakshara joint family, the successor to the estate will be determined by survivorship, the other characteristics of a coparcenary, such as the right of joint enjoyment and the right to call for a partition are, by their very nature, absent in an impartible estate.
Formerly, it was supposed that an impartible estate was in no case joint family property. But later, after the decision in Brajnath v. Tej Bali Singh (48 I. A. 195), the view that has prevailed is that the fact that an estate is impartible does not make it the separate or self- acquired property of the holder. If the property is ancestral and the holder has succeeded to it, it will be part of the joint estate of the undivided family. (Shibaprasad Singh v. Prayag Kumari Debee, 59 I.A. 331).
In the case of ordinary coparcenary property, the members of the joint family have their right of (1) partition, (2) restraining alienations by the manager except of necessity, (3) maintenance, and (4) survivorship.
The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second and third of these rights are incompatible with the custom of impartibility. To this extent, the general Mitakshara law has been superseded by custom and the impartible estate though ancestral, is clothed with the incidents of self-acquired and separate property.
But the right of survivorship is not inconsistent with the custom of impartibility. This right still remains, and to this extent, the estate still retains the character of a coparcenary property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth no longer exist, the birth-right of the senior member to take by survivorship still remains. The right is not a mere spes successions; it is a right which is capable of being renounced and surrendered.
(Shibaprasad Singh v. Prayag Kumari Debee, 59 I.A. 331)
The income of an impartible estate is the absolute property of the holder of the estate.
It is competent to the holder of an ancestral impartible estate to incorporate, as an accretion to the estate, other immovable property belonging to him. The self-acquired property so incorporated with an ancestral impartible estate is impressed with all the incidents which attach to the ancestral immovable estate, and therefore passes with that estate by survivorship. Whether any such property has in fact been incorporated with the impartible estate depends upon the intention of the holder.
5. Alienation by holder:
The holder of an impartible property can alienate it by a gift inter vivos or by a will, although the family is undivided, unless by a family custom or by the condition of the tenure, he is precluded from doing so. (Lingappa Payappa v. Kadappa Bapurao, I.L.R. (1940) Bom. 721)
The right to maintenance of all junior male members of the family by virtue of their interest as co-owners, has been negatived in C.I.T. Punjab v. Dewan Krishna Kishore (68 I.A. 155). Junior male members, not being sons or brothers of the holder of the impartible estate, have no right to maintenance from the impartible estate, except under a special custom. (Kumara Krishna Yachendra v. Rajeswara Rao, 68 I.A. 181)
No junior member has any present right in the impartible property. Junior male members of the family, not being sons or brothers of any holder, are not entitled to maintenance out of the estate, apart from proof of a special custom in that behalf.