MANSINH SURAJSINH Vs. JAMNADAS AND BROS

JUDGEMENT

(1.) ONE Raghuvirsinh, Chieftain of Kathi Estate, and opponent No, 7 in these applications filed a suit on 23rd April 1960 for recovery of arrears of royalty from opponents 1 to 6 under a forest contract in respect of Kathi Estate dated 12th December 1955, it appears that this estate was under the management of the Court of Wards during the minority of Raghuvirsinh who was entitled to it by the rule of primogeniture, and while it was under its management, by a contract dated 15th December 1955, the Court of Wards granted to opponents 1 to 6 rights in respect, of the forest produce in the estate for a period of 3 years. The estate was thereafter handed over to Raghuvirsinh on his coming of age on 24th April 1956 and he started managing the same with the help of his mother Hirabai. Shortly thereafter, however, this Hirabai died but before her death she had directed Raghuvirsinh to take the assistance of plaintiff No. 2 in managing the estate, and accordingly, plaintiff No. 2 joined Raghuvirsinh in the management. Opponents 1 to 6 tailed to pay the royalty to Raghuvirsinh as provided in the contract. Consequently, on 25th September 1958 Raghuvirsinh and plaintiff Ho. 2 gave notice to opponents 1 to 6 demanding payment of royalty that had become due and payable under the contract. Despite this notice, opponents 1 to 6 failed to pay the royalty and, therefore, Raghuvirsinh and plaintiff No. 2 filed a suit being Regular Suit No. 158 of 1960 in the Court of the Civil Judge, Senior Division, at Dhulla, on 23rd April 1960 for recovery of Rs. 2239. 50 np. from these opponents. During the pendency of the suit, i. e. on 17th June 1960 Raghuvirsinh died, and the question arose as to who could be substituted in his place and stead in the suit as his heir and legal representative. The petitioner, who claimed to be Raghuvirsinh's uncle and successor to the estate made an application on 14th September 1960 praying that he be substituted in the place of Raghuvirsinh in the suit as his heir and legal representative. On the very next day, i. e. on 15th September 1960, opponents 8 and 9, No. 8 being the widow of Raghuvirsinh and No. 9 being his daughter, made an application for substituting their names in place of Raghuvirsinh in the suit as his natural heirs. Similar applications were also made by the petitioner and opponents 8 and 9 respectively in respect of another suit being Regular Civil Suit No. 159 of 1960 filed by Raghuvirsinh and plaintiff No. 2 to recover a sum of Rs. 4787 and odd being the amount of royalty that had become due and payable to them under another contract of a similar nature. All these applications were heard together by the learned trial Judge. No evidence was led on either side and the applications seem to have been decided only upon affidavits. The learned Judge held that inasmuch as the amounts of royalty claimed in the two suits were the personal property of Raghuvirsinh and did not form part of the Kathi estate, only his natural heirs, opponents 8 and 9 were entitled to continue those suits. Accordingly, the applications of the petitions' were rejected and those by opponents 8 and 9 were allowed. It is against the decision of the trial Court on these applications, that the petitioner has filed these two revision applications in this Court.

(2.) IN support of these applications, it was urged by Mr. Vaidya that the mere right to recover the royalty that had accrued due to Raghuvirsinh during his life time as distinguished from the royalty actually received or recovered, could not constitute his separate property in law and that, therefore, it could only be a part of the Kathi estate and as such, it could not descend to his heirs at law but only to the person who would succeed to the estate by the rule of primogeniture. On behalf of opponents 8 and 9, on the other hand, it was urged by Mr. Joshi that in the absence of any intention on the part of Raghuvrsinh to treat the amounts of royalty that had accrued due to him under the contracts during his life time as a part of the estate, such amounts became his separate property and it did not make the slightest difference that the royalty had only accrued due and had not been actually received by him. In support of this contention Mr. Joshi relied upon, Someshwari Prasad Harain Deo v. Maheshwari Prasad Narain Deo, 10 Pat 630 : (AIR 1931 Pat 426) and Jagdamba Kumari v. Wazir Narain, 50 Ind App 1 : (AIR 1923 PC 59 ). In my opinion, the contention urged by Mr. Joshi is correct. It was not the case of the petitioner that Raghuvirsinh had before his death Indicated by any act on his part an Intention to treat the amount of royalty which had accrued due to him under the contracts as a part of the estate. The only contention that was raised by Mr. Vaidya on behalf of the petitioner was that unless and until the amount of royalty was actually received or recovered by Raghuvirsinh from opponents 1 to 6, he could not treat it as his separate property. I do not think that is the correct position in law. A sum of money can be recovered or received only after it becomes due and payable and the person entitled to it acquires a legal right to receive or recover it. Unless and until it becomes due and payable the person who is entitled to it cannot enforce his right and take proceedings to recover it. Thus, in the case of the accrual of a claim to a sum of money, a person has only to take proceedings to enforce his right to recover it if he does not otherwise receive it. In the case of the actual recovery of the claim, he has already recovered it either by proceedings in Court or directly from the person who owed it. The crux of the matter, in my opinion, is not the recovery of the claim but the accrual of the claim giving right to recover it. In the case of an impartible estate as in the present case, once the claim be a certain sum of money by way of royalty or otherwise acerues in favour of the holder of the estate, he may decide as to whether he would treat it as his separate property or as a part of the estate. In the absence of any indication on his part that he would treat the claim as a part of the estate, prima facie it would become his separate property. In the present case, as already observed, the petitioner did not contend that Raghuvirsinh had in any manner indicated during his life time any Intention to treat the amounts of royalty he had become entitled to recover from opponents 1 to 6 as a part of the Kathi estate and not as his separate property. Accordingly, these amounts though accrued due and not actually received formed the separate property of Raghuvirsinh.

(3.) IT was not disputed by Mr. Vaidya, that the amount of royalty claimed in each of the two suits had accrued due to Raghuvirsinh under the forest contracts during his life time and he had acquired a legal right to institute proceedings to recover the same. Accordingly, all that Raghuvirsinh had to do was to file suits to recover those amounts if in answer to the notice of demand opponents 1 to 6 failed to pay them. Two suits were accordingly filed and Raghuvirsinh having died during the pendency of those suits, the right to recover the amount of royalty claimed in each of the two suits would obviously devolve upon his natural heirs and these heirs were only his widow and his daughter, opponents 8 and 9. In my opinion, therefore, apart from the contention of opponents 8 and 9 that the petitioner was not the uncle, of Raghuvirsinh as alleged by him, the petitioner could not possibly claim the amount on royalty which is the subject-matter of the two suits and his applications were rightly rejected by the trial Court. In the result, these applications are dismissed and rules are discharged with costs.