SOORAJ Vs. S

JUDGEMENT

(1.) This appeal by special leave arises from the judgment and decree of the High Court of Madhya Pradesh at Jabalpur in Second Appeal No. 354/79, dated 3-9-1981. The appellants are the plaintiffs. They are the major daughters of one Ratan Singh who was the Bhoomidar of the lands in Khasra Nos. 36, 54, 146, 151, 165, 258 and the respective Rakwas mentioned therein of a total of 41.49 acres. Ratan Singh died in 1960. The Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 had come into force which provides for fixation of ceiling on the holding of the agricultural lands. The first defendant, Sub-Divisional Officer, Rahli, Tehsil Rehli, determined that the widow of Ratan Singh was entitled to only 10.38 acres of land and the rest of the land was declared to be 'surplus' vide his proceedings dated 1-3-1976. The appellants challenged the validity of that order in Civil Suit No. 34A/76. The declaration sought therein was that "the plaintiffs pray that the suit of the plaintiff for declaration be decreed and be declared that in the lands mentioned paragraph 1, plaintiffs have 3/4th share and defendant No. 1 (the mother) has 1/4th share and the order dated 1-3-1976 passed by the S.D.O., defendant No. 1 is unlawful and illegal." The trial Court dismissed the suit but, on appeal, the Second Additional District Judge, Sagar, allowed and decreed the suit. In the second appeal, the High Court reversed the decree and confirmed that of the trial Court.

(2.) The High Court had followed the judgment of the Full Bench of the High Court in Nahar Hirasingh v. Mst. Dukalhin, AIR 1974 Madh Pra 141.

(3.) Sri Ranjit Kumar, learned counsel for the appellant contends that the Bhoomiswami right is inheritable and its devolution is governed by Section 164 of the Madhya Pradesh Land Revenue Code, but it should be subject to the operation of the provisions of the Hindu Succession Act, 1956. By operation of sub-section (2) of Section 4 of the Act, only the tenancy rights have been excluded from the operation and Bhoomiswami rights are not tenancy rights but the one devolved by succession of ownership of the lands and, as such, Section 4(2) has become inapplicable. Thereby the appellants are entitled to succeed to the estate of their father by operation of Section 8 of the Hindu Succession Act. He places reliance on the decision of this Court in Bajya v. Gopikabai, (1978) 2 SCC 542 and Anant Kibe v. Purushottam Rao, (1984) Suppl. SCC 175 .