JUDGMENT P.K. Tare, J. This appeal was previously decided by another Division Bench on 30-9-1958. None appeared for the respondent at the time of the hearing. Therefore, the appeal was decided ex parte. Subsequently, the respondent applied for setting aside the ex parte decree of this Court; and, this Court, by order, dated 13-11-1959, set aside the decree on the ground that there was sufficient cause for the respondent regarding failure of his counsel to appear. Therefore, this appeal has come up for a fresh decision in the presence of both the parties. This appeal is by the defendant against the decree, dated 17-11-1954, passed by Shri Syed Rafiullah, Additional District Judge, Raipur, in Civil Suit No. 19-B of 1951. The genealogy of the parties is as follows:- The appellant was a protected thekadar prior to the abolition of proprietary rights. The plaintiff-respondent's case was that the village was joint family property and protected status was conferred on Jhinjut, the ancestor of the parties. On his death, Puransingh was said to have become the protected thekadar, as his elder brothers, Kulhal and Dhirwa had pre-deceased Jhinjut. Puransingh was said to have died in the year 1924, when the appellant, Hiralal became the protected thekadar on behalf of the joint family. It was further alleged that in 1915. Puransingh had entered into a family arrangement with the plaintiff's father, Ranjit to place 47.38 acres of land in possession of Ranjit in lieu of his share in the theka, which was joint family property. Ranjit and the present plaintiff remained in possession of the said lands till the year 1943. It was alleged in the plaint that the defendant had ratified the family arrangement, when he became the thekadar. However, disputes arose in the year 1943, when Hiralal filed Civil Suit No. 89-A of 1943 for possession of the lands. On 21-8-1944, his claim was decreed by the Court of Sub-Judge, Second Class. The decree was upheld by the Additional District Judge, as also by the Nagpur High Court. The said case is reported as Chandel v. Hiralal ILR 1949 Nag. 883. In pursuance of the decree, Hiralal took possession of the lands on 4-4-1945. Thereafter, the present respondent, Chandel filed the present suit, claiming his share of the profits of the theka for the years 1945-46 to 1949-50. He valued his claim of profits for the said years at Rs. 10,8-0. 883. In pursuance of the decree, Hiralal took possession of the lands on 4-4-1945. Thereafter, the present respondent, Chandel filed the present suit, claiming his share of the profits of the theka for the years 1945-46 to 1949-50. He valued his claim of profits for the said years at Rs. 10,8-0. The appellant's defence was that thekadari rights were conferred on Puransingh for the first time and that Jhinjut was never the protected thekadar. The appellant, therefore, claimed to have succeeded to have thekadari rights of his father, which was his exclusive and self-acquired property. The alleged family arrangement about placing Ranjitsingh in possession of about 47.38 acres of land was denied. The possession of Ranjitsingh during the appellant's minority was alleged to be permissive. It was further alleged that Ranjitsingh was given Khasra No. 611 area 1.33 acres in lieu of his right of maintenance. The plaintiff's right to claim any share in the thekadari lands, which were sir and khudkast prior to the abolition of proprietary rights, and which became occupancy lands after the enactment of Madhya Pradesh Abolition of Proprietary Rights Act No. 1 of 1951, was denied. The learned Judge of the trial Court held that the defendant was a protected thekadar on behalf of the joint family consisting of himself and the plaintiff; and, as such, the plaintiff was held entitled to half share in the profits of the joint family thekadari lands. The defendant's contention of an exclusive title to the thekadari rights was negatived. As regards the quantum of mesne profits, the learned Judge found the same to be Rs. 6,400 for the suit years. The learned Judge also negatived the defendant's contention that the plaintiff's father, Ranjitsingh had been given Khasra No. 611 in lieu of his right of maintenance. The fact that the thekadari was previously recorded in the name of Puransingh, grandfather of the appellant who entered into a family arrangement with Ranjitsingh by giving him half of the thekadari lands would show that the thekadari was an item of the joint family property and was not the exclusive property of Puransingh. For this reason, we would agree with the finding of the trial Judge that the thekadari property was the joint family property. For this reason, we would agree with the finding of the trial Judge that the thekadari property was the joint family property. Although the restrictions placed by section 109 of the C.P. Land Revenue Act, 1917 prevented succession to the thekadari property except by the rule of seniority, all the same, such property could be owned by the joint family, as was held by Shrivastava J. in Maniram Maksudan v. Ramdayal Maksudan and another 1959 MPLJ 829 and by a Division Bench of this Court in Sardharai v. Premprasad F.A. No. 56 of 1956, D/- 30-11-1969 (1960 MPLJ Note 127). Therefore, there is no doubt that the present property was owned by the family, although its succession would be governed by the provisions of section 109, C.P. Land Revenue Act. It would be impartible and no family member could claim a partition or a share in the thekadari property. In the present suit, the respondent claimed mesne profits on the basis of his alleged share in the joint family property. He alleged that he had half the interest in the suit property and, therefore, he was entitled to claim profits to that extent. Section 109 of the C.P. Land Revenue Act, 1917 which mentions the incidence of the protected thekadari rights provides that the tenure of a protected thekadar is impartible and unalienable. Proviso (1) of the said section lays down that nothing herein contained shall prevent a protected thekadar, or any member or members of his family, who would be entitled to share in the theka or to be maintained out of its income, from making any arrangement, binding on themselves only, for the joint or divided management and enjoyment of the village or part thereof. Sub-section (b) of the said section lays down that the succession shall be regulated by the personal law of the deceased thekadar, subject to the following conditions, namely:- (i) only one person at a time can succeed; (ii) succession shall be according to the seniority in descent from the common ancestor, where several persons are in the equal degree of relationship to the deceased thekadar and that out of several persons of equal seniority, the eldest shall be preferred. In view of the specific provisions of section 109 of the C.P. Land Revenue Act, 1917, the family arrangement made by Puransingh with Ranjit to place him in possession of about 47 acres of land was binding on the parties during the life-time of Puransingh. It could not be binding on his successor. It was for that reason that the present appellant had been awarded a decree in his favour for possession of the property which had been given to Ranjit in lieu of the family arrangement. That case is reported as Chandel v. Hiralal ILR 1949 Nag 883. In that case the late J. Sen J. held that although impartible property might belong to the joint family, it was the thekadar who would be entitled to possession of the thekadari property. The learned Judge, following an earlier decision of his, namely, Narayanprasad v. Laxmanprasad 1945 NLJ 291, held that it was open to Chandel to file a suit for his share of the income of the thekadari property or for maintenance. As that was not the subject-matter of the earlier suit, no decree could be passed in that case on that basis. It was after that decision that the present respondent filed the present suit, claiming his share of the profits for the suit years. However, Mudholkar J. in Sukhambai wife of Narayan Sao and another v. Ramsharan Doma Sao and others 1951 NLJ 433, dissented from the view of Sen J. on the ground that the case before Sen J. was distinguishable and that the view of Sen J. was not in accordance with two decisions of the Privy Council, namely. Commissioners of Income-Tax, Punjab etc. v. D.B. Dewan Krishnakishore Raja, Lahore AIR 1941 PC 120 : ILR 1942 Lah 1 (PC) and Raja Velugoti Sarvagna Kumara Krishna Yachandra Bahadur Varu v. Raja Rajenswara Rao and another AIR 1942 PC 3 : ILR 1942 Mad 419 (PC). On account of this conflict between the views of Sen J and Mudholkar J., it would be necessary to examine the legal position in the light of the observations of their Lordships of the Privy Council. There is no doubt that as laid down by their Lordships of the Privy Council in Thakur Bhagwansingh v. Darbarasingh 24 NLR 179 (PC), thekadari property or any impartible property could belong to the joint family. There is no doubt that as laid down by their Lordships of the Privy Council in Thakur Bhagwansingh v. Darbarasingh 24 NLR 179 (PC), thekadari property or any impartible property could belong to the joint family. That case was followed by Sen J. in Chandel v. Hiralal ILR 1949 Nag 883, as also by another Division Bench of the Nagpur High Court in Chandanlal v. Pushkarraj and others 1952 NLJ 213 : ILR 1952 Nag 318 : AIR 1952 Nag 271. On account of the operation of section 109 of the C.P. Land Revenue Act, 1917, the property, prior to the Abolition of Proprietary Rights Act, No. 1 of 1951, was impartible and unalienable and the line of succession was on the rule of seniority and in favour of only one recorded thekadar. Their Lordships of the Privy Council in the two cases relied on by Mudholkar J. made the following observations in Commissioners of Income-Tax, Punjab, North West Frontier and Delhi Provinces, Lahore v. Dewan Bahadur Dewan Krishna Kishore Raja, Lahore AIR 1941 PC 120 : ILR 1942 Lah 1 (PC):- The important question whether the income which consists of interest is income of the family or of the individual. The High Court have held in general terms-apart from the particular provisions of sections 8 or 9-that the income of an impartible estate is income of the family and not of the present holder. The same matter had been fully considered in the High Court of Madras in the Bohbili case AIR 1937 Mad. 515 : ILR 1937 Mad. 797, where a different conclusion was reached. It has been the subject of much argument on this appeal and their Lordships think it right to give their decision upon it, especially as they have arrived at a result which will not be affected whether the income in question be found to come under section 8 or section 12. In their Lordships' view the income of an impartible estate is not income of the undivided family but is the income of the present holder notwithstanding that he has sons from whom he is not divided. In its simplest form the question is whether such interest comes to the hands of the assessed as being the person beneficially entitled to it or as being a manager on behalf of himself and others. In its simplest form the question is whether such interest comes to the hands of the assessed as being the person beneficially entitled to it or as being a manager on behalf of himself and others. In Jagadamba Kumari v. Narain Singh LR 1923 IA 1, the last holder had out of the income accumulated considerable property movable and immovable and the question was whether this formed an accretion to the impartible estate by reason that it had been entered in the same books of account as the estate transactions. Lord Buckmaster on behalf of the Board said:- In fact when the true position is considered there is no accretion at all. The income when received is the absolute property of the owner of the impartible estate. It differs in no way from property that he might have gained by his own effort or that had come to him in circumstances entirely dissociated from the ownership of the raj. It is a strong assumption to make that the income of the property of this nature is so affected by the source from which it came that it still retains its original character. And their Lordships went on to contrast the income of an impartible estate with that of an ordinary joint estate:- It is possible that this confusion is due to the consideration of the position of an ordinary joint family estate. In such a case the income equally with the corpus forms part of the family property and if the owner mixes his own moneys with the moneys of the family....... his own earnings share with the property with which they are mingled the character of joint family property, but no such considerations necessarily apply to the income from impartible property. In Raja Velugoti Sarvagna Kumara Krishna Yachandra Bahadur Varu v. Raja Jajeshwara Rao and another AIR 1942 PC 3 : ILR 1942 Mad 419 (PC), their Lordships of the Privy Council made the following observations:- The interesting question which remains is whether the plaintiffs are entitled to maintenance from the impartible estate on the ground that it is the prima facie right at law of all junior male members of the family to be maintained out of impartible estate which is family and not separate property. The answer made by the defendant to this claim is that junior male members have no such right save by custom and that, apart altogether from any question of legitimacy, the plaintiffs not being sons or brothers of any holder of the impartible estate can succeed only by providing a special custom, which they have failed to do. For this view of the law the defendant relies upon a line of decisions of the Board-the Second Pittapur case LR 45 IA 148 : AIR 1918 PC 81, the Jaypore case AIR 1919 PC 126, Baijnath's case LR 48 IA 195 : AIR 1921 PC 62, the Dhalbhum case LR 54 IA 289 : AIR 1927 PC 159 and Shibaprasad Singh's case LR 59 IA 331 : AIR 1932 PC 216. The plaintiff's reply is that this line of decisions was abandoned or deflected by the judgment of the Board in the Gorakhpur case LR 61 IA 286 : AIR 1934 PC 157 which, as he contends, established the right to maintenance as belonging to all junior male members of the family by virtue of their interest as co-owners. This interesting and difficult question has recently (4th July 1941) been determined by the Board in another case Commissioner of Income-Tax, Punjab v. Krishna Kishore ILR 23 Lah 1 (PC) : AIR 1941 PC 120 in a sense unfavourable to the plaintiffs whose learned counsel recognised that it would be neither reasonable nor useful to ask the Board to give a contrary decision in the present case. Their Lordships on this part of the case agree with the learned Subordinate Judge who negatived this ground of claim. Their Lordships have read the Subordinate Judge's judgment and both judgments in the High Court with high appreciation and have been struck by the skill and care with which the various questions have been elucidated and by the ability with which they have been discussed. But the plaintiff's suit must fail. Their Lordships will humbly advise His Majesty that the appeal of the defendant should be allowed, the appeal of the plaintiffs dismissed, the decrees of the Indian Courts set aside, and the suit dismissed. But the plaintiff's suit must fail. Their Lordships will humbly advise His Majesty that the appeal of the defendant should be allowed, the appeal of the plaintiffs dismissed, the decrees of the Indian Courts set aside, and the suit dismissed. Thus, their Lordships of the Privy Council laid down that in respect of any impartible estate no junior member of the family, unless he were a son or a brother of any holder of impartible estate, could claim any maintenance in the absence of a special custom. In that particular case the claim was put forth by the illegitimate sons of the last holder. Their Lordships laid down that no member of the family of the thekadar except when he happens to be a brother or a son would have any rights in the income of the theka. What their Lordships meant was that no junior members of the family or any collaterals could claim any right of share or maintenance in the income from the thekadari property. In the case before Mudholkar J., a collateral branch of the thekadar was claiming a share in the theka and, therefore, the learned Judge was justified in holding, on the dictum of their Lordships of the Privy Council, that the plaintiffs in that case had no right to claim a share or maintenance out of the income of the thekadari property. So far as the present case is concerned, Puransingh was the first thekadar appointed. He belonged to the junior branch. His appointment came to be made, as by a reference to the earlier case between the parties reported in Chandel v. Hiralal ILR 1949 Nag 883, we find that Ranjit, a member of the senior branch, was minor at that time. After Puransingh, the present appellant, Hiralal came to be appointed as a thekadar. As per the finding of the trial Judge, the theka belonged to the joint Hindu family. It appears the previous thekadar had made a family arrangement, by which Ranjit, a member of the senior branch, had been placed in possession of about 47 acres of land. The said arrangement could not be binding on the present appellant. It was for that reason that his claim for possession was decreed in the earlier suit. It appears the previous thekadar had made a family arrangement, by which Ranjit, a member of the senior branch, had been placed in possession of about 47 acres of land. The said arrangement could not be binding on the present appellant. It was for that reason that his claim for possession was decreed in the earlier suit. Applying the dictum of their Lordships of the Privy Council, we are of opinion that the present plaintiff could not claim a share in the income arising from the thekadari property on the basis of his interest as a member of the undivided Hindu family. Therefore, the plaintiff's claim for a share in the thekadari property on the basis of his interest in the joint Hindu family cannot be decreed. We need not decide the question whether he could claim maintenance, as in the present suit no such claim was made. If the respondent so chooses, he might agitate the question in a properly constituted suit. As the suit relates to a period prior to the abolition of proprietary rights, when the thekadari property was impartible, the plaintiff's suit for a share in the income was not tenable. But, after the enactment of the Madhya Pradesh Abolition of Proprietary Rights Act, No. 1 of 1951, the lands became the occupancy lands of the ex-thekadar and as such they would be partible among the co-parceners. However, we would leave that question open for decision in a properly constituted suit. That relief cannot be granted in the present suit. As a result, this appeal succeeds and is allowed. Under the circumstances, we direct that the parties shall bear their own costs as incurred throughout. Appeal allowed