IMAM MOHAMED PENDHARI Vs. RAHIMATABAI ALLABAKSHA PENDHARI

JUDGEMENT

(1.) This is plaintiffs second appeal. The plaintiff claims to be heir of one Mohamed. The said Mohamed died in the year 1949, leaving behind him the plaintiff-Inam Allabaksha, ancestor of defendants Nos. 1 to 5 and daughter Chandhi-defendant No. 6. Admittedly, the suit properties are Inam lands and non-Inam lands. The Inams came to be abolish in the year 1955 under the provision of the Bombay Merged Territories Miscellaneous Alienation Act, 1955 (hereinafter referred to as the Act). The lands were ultimately regranted in favour of the son of Allabaksha, defendent No. 1 on 21-7-1971. The land appears to have been so regranted to the son of Allabaksha on the hypothesis that he was entitled to the same by rule of primogeniture and also by right of inheritance accured to him after the death of his father under rule of primogeniture, though the inam lands were held by Mohamed during his life time since the death of his ancestor. This suit was decreed by the trial Court by its judgement and decree dated 7th December, 1973, to the extent of 2/5th share both in inam land and non-inam land. The decree contained certain other consequential directions as to the partition and mesne profits. The Court also directed that defendant No. 6 to be put in possession of the land to the extent of her 1/5th share as the daughter of the said Mohamed. Defendants Nos. 1 to 5 preferred an appeal to the District court. The said appeal is allowed by the learned Assistant Judge by his judgment and decree dated 30th January, 1976, only to the extent of inam land. It is the validity of this order of the Assistant Judge which is challenged in this second appeal by the original plaintiff as also by the defendant No. 6, who virtually happens to be the plaintiff in suit like this. The only point that was urged before the learned Assistant Judge was whether plaintiffs right can be said to have been extinguished because of the abolition of the inams.

(2.) The Assistant Judge appears to have thought that impartible property such as Inam lands is like self-acquired property and separated property of the person holding it. Under the Mohamaden Law, there is no rule of survival ship and impartible property cannot be considered as a family property for any purpose. It must be considered as separate property of the person holding it. He therefore, though that on the death of his father, the property would go to Allabaksha as the eldest son and it should be considered as a separate property of Allabaksha alone. It is on this hypothesis that the plaintiff was found to have been excluded from inheriting the suit land on the death of Mohamed.

(3.) I do not think this view of the learned Assistant Judge is correct. It is true that Inam property was impartible till Inam came to be abolished in the year 1955. Thereafter, the impartible character of the land ceased to be in existence. But for its impartibility, the plaintiff and defendant No. 6 could have claimed share in the property left by Mohamed. Their claim to such partition had not becomes time-barred on the date when Inams came to be abolished with their impartible character. They were thus entitled to claim share in the property in the same manner as any other property left by Mohamed. It is obvious that while regranting the land on 21-7-1971, the Revenue Authority did not bother to go into the question as to legal title to the suit property. Babu can be said to be a person amongst many other persons who claimed occupancy rights on payment of occupancy price. The Revenue Officers may be justified in stating Babu as a person entitled to deposit occupancy price and regrant of occupancy rights. Such an order by the Revenue Officers cannot be conclusive of the title to the land. Plaintiff and defendant no. 6 were as much entitled to the property left by Mohamed as the defendants Nos. 1 to 5 are. Their title was not extinguished by the time, the inam character of the property had to come to an end and rule of primogeniture ceased to be applicable to such property with abolition of inam and impartibility thereof. Merely because, Revenue Officers ignored the interest and claim of the plaintiff in the land, they cannot be prevented from claiming title and their share in the land, if otherwise, the same exists. To this extent the finding of the learned Assistant Judge is not correct and decree passed by him is liable to be set aside.