GOKULRAM BAMPALATRAM Vs. BHAGWANDAS RAGHUWARPRASAD

JUDGEMENT

(1.) This judgment shall also govern the disposal of Second Appeal No. 431 of 1958 (Gokulprasad v. Bhagwandas and Others) and Second Appeal No. 486 of 1958 (Gomtiprasad and Another v. Bhagwandas and Others). This appeal is under section 100 of the Civil Procedure Code read with section 220 of the V.P. Land Revenue and Tenancy Act, 1953 against the decree, dated 20 -8 -1958, passed by Shri Nirajanlal Shrivastava, Additional District Judge, Rewa in Civil Appeal No. 122/22 of 1957, affirming the order of Shri Ramkumar, Tahsildar, Teonther dated 15 -11 -1956, in Revenue Case No. 1 of 1956 -57 directing mutation in favour of the respondents. Second Appeal No. 431 of 1958 is by one of the defendants against the decree, dated 20 -8 -1958, passed by Shri Niranjan Lal Shrivastava, Additional District Judge, Rewa, in Civil Appeal No. 21 of 1957, reversing the decree, passed by Shri Ranapratap Singh, Munsiff, Teonther in Civil Suit No. 17 of 1956, dated 31 -1 -1957. Second Appeal No. 486 of 1958 is by some of the defendants under section 100 of the Civil Procedure Code against the decree, dated 20 -8 -1958, passed by Shri Niranjan Lal Shrivastava, Additional District Judge, Rewa in Civil Appeal No. 44/40 of 1958, reversing the decree passed by the Munsiff Teonther, in Civil Suit No. 29 of 1957, dated 13 -2 -1958. The question involved in the present appeals is as to whether the plaintiffs or the defendants are the heirs of one Jagatdhari and whether which of them are entitled to have their names mutated in the revenue records and entitled to a possession of the property. The relationship of the parties is as under: - Mat. Nandkumari and Brijpati died during the pendency of the suit. Jagatdhari was a grove -holder in respect of two separate groves, -(i) khala No. 96 concerning khasara No. 951 which is the subject -matter of the present appeal as also Second Appeal No. 486 of 1958 and (ii) khata No. 28 concerning khasra No. 1862, which is the subject -matter of Second Appeal No. 431 of 1958. Mat. Nandkumari applied for mutation of her name in respect of the said groves claiming to be an heir of her father, Jagatdhari. Brijpati filed an objection before the Tahsildar. As a question of title was raised during the mutation proceedings, the Tahsildar referred the matter to the civil Court as required by section 220 of the V.P. Land Revenue and Tenancy Act, 1953. The trial Judge held that the daughter, Met. Nandkumari could not be an heir on account of the order of the Rewa Darbar dated 7 -6 -1934, which was published in the Rewa Gazette dated 16 -6 -1934. On the other hand the learned appellate Judge held that she was the heir and, therefore, her legal representatives who were substituted in her place were entitled to have their names mutated and also entitled to decree for possession. This appeal involves only one short question as to the effect of section 325 of the Rewa Land Revenue and Tenancy Code, 1935 on the Darbar Order dated 7 -6 -1934 which was published in the Rewa Gazette, dated 16 -6 -1934, before dealing with the question, it would be desirable to state some facts. The exact date of the death of Jagatdhari is not known. But from the record, it is apparent that he died some time in the year 1936 after the Rewa Land Revenue and Tenancy Code, 1935 was brought into force. In 1931, Jagatdhari had executed a mortgage of one of the groves in favour of the grandfather of Ram Manorath, Ram Manorath is a party to Second Appeal No. 486 of 1958. Similarly Jagatdhari had executed another mortgage in respect of the other grove in favour of Nandkumari's father -in -law for a consideration of Rs. 132. Brijpati purported to redeem both the mortgages upon payment of the amounts due under them. So far as the mortgage in favour of Mst. Nandkumari's father -in -law was concerned, Raghuwansh husband of Mst. Nandkumari accepted the mortgage amount from Brijpati. This fact is material to decide the question of estoppel raised by the appellants. It appears that Brijpati filed a suit for redemption in the year 1945 and obtained a decree to that effect. However, that judgment not being on record, the other questions in connection with that judgment do not arise. The Darbar Order, dated 7 -6 -1934 was in the following terms: - Accordingly a schedule was also issued laying down that the collaterals upto the 6th degree could succeed to the estate of the deceased. Women had no right in respect of the property of a deceased. Male members alone were recognised under the said Order. Upon being questioned, the learned counsel for both the parties stated that the earlier orders, dated 26 -3 -1911, 14 -9 -1911 and 22 -1 -1914 issued by the Darbar were not available from any quarters, whatsoever. However, for the purpose of the present appeals, it would be sufficient to have the text of the Darbar Order dated 7 -6 -1934. The Rewa Land Revenue and Tenancy Code, 1935 was brought into force Borne time in the year 1936 in pursuance of a notification issued by the Darbar in the Rewa Raj Gazette as required by sub -section (3) of section 1 of the Act. Further on section 2 of the said Act provided as under: -

(2.) ALL Rules, Notifications, Circulars, Rubkars and Orders relating to matters connected with land made before the passing of this Act, so far as they are inconsistent with this Act, are hereby repealed, bat not so as to render invalid anything done in accordance with any of them. And all Rules prescribed, Notifications published, Circulars, Rubkars and Orders issued, now in force and relating to any of the matters dealt with in this Act, shall, so far as they are consistent with this Act, be deemed to have been respectively prescribed, published and issued under this Act until such time as Rules superseding them shall have been made under this Act. Further on section 323 of the Act provided for the rights and liabilities of grove -holders as under: - Notwithstanding anything previously contained in this Act - (a) if a grove -holder holds the land otherwise than as a pachpan -paintalis or pattedar tenant, it shall be presumed that he holds the land under a lease the term of which will expire when the land ceases to be grove -land; (b) the interest of a grove -holder shall be transferable in any shape or form and heritable according to the personal law applicable to him; (c) no tenant who has the right of a grove -holder in any land comprised in his holding shall be required to surrender his grove -land along with the rest of his holding; (d) a grove -holder may sub -let the whole or any portion of his grove -land for any length of time, provided that he shall not be entitled to confer on the sub -tenant any interest outlasting his own interest and that of all persons claiming through him; and provided further that the sub -lessee shall not relieve him of any of his liabilities to the Darbar or his pawaidar or sub -pawaidar: (e) a grove -bolder shall not be liable to ejectment except on the ground of any act or omission detrimental to the land or inconsistent with the purpose for which it was let or except on the ground that he holds under a lease the term of which has expired, or will expire, at or before the end of the current agricultural year, but nothing in this clause shall be deemed to prevent the Darbar from recovering any arrears of revenue due from the grove -holder by attachment and sale of the grove -land, and nothing herein shall be deemed to prevent a pawaidar or sub -pawaidar from obtaining the Bale of his grove -holder's interest in execution of a decree for arrears of rent; (f) the fruit and the flowers of a grove, and any crops grown under or among the trees of a grove, may be distained and sold under sections 108 and 116 respectively, but no other produce of a grove may be distained; (g) all grove -land shall be assessable to revenue or rent as land; (h) where a person becomes a grove -holder in respect of land of which he is a tenant or holder of a chakra grant, he shall hold such land as grove -holder in supersession of all subsisting rights and liabilities so far as they are inconsistent therewith; (i) all trees declared as 'protected' under the Forest Act, in any grove -land, whether grown by the grove -holder or not, together with their products, shall be the absolute property of the Darbar. Thus sub -section (b) of section 323 of the Rewa Land Revenue and Tenancy Code, 1935 provided for the first time for inheritance or succession according to personal law applicable to the parties. The learned counsel for the appellant urged that the personal law referred to in the said section would be the law as declared by the Darbar Order, dated 7 -6 -1934. It would, therefore, be necessary to examine whether the Darbar Order, dated 7 -6 -1934 was the territorial law or the personal law. The learned counsel for the appellant further invited attention to a Division Bench case of this Court, namely, Abdul Sattar v. Ahmad Hussain F.A. No. 239/66, D/ - 31 -8 -1960 decided by Naik J. and Pandey J. In that case the question was whether the Darbar Order, dated 7 -6 -1934 excluding the females stood modified or repealed by the Muslim Personal Law (Shariat) Application Act, 1937 (XXVI of 1937), which was extended to Vindhya Pradesh by the Part C States (Laws) Act, 1950 (XXX of 1950). On the authority of Mirza Ahamd Beg v. Mirza Wahid Beg 1949 V.P Law Reports 280, the trial Judge had held that the Darbar Order, dated 7 -6 -1934 stood repealed with effect from 16 -4 -1950. The learned Judges constituting the Division Bench held that since the scope and purpose of the Shariat Act of 1937 was to abrogate custom and usage, it did not affect the law as promulgated by the Darbar Order of 1934. Therefore, the scope of the Muslim Personal Law (Shariat) Application Act, 1937 was merely to abrogate custom and usage and to make certain provisions in place of such customs and usages. The said Act could not evidently be deemed to have abrogated the Darbar Order, dated 7 -6 -1934, which was the territorial law applicable in Rewa State. But, however, provisions of section 2 of the Rewa Land Revenue and Tenancy Code, 1935 make a different provision. Section 2 of the Rewa Land Revenue and Tenancy Code, 1935 specifically provides that all Rules, Notifications, Circulars, Rubkars and Orders relating to matters connected with land made before the passing of the Act, so far as they may be inconsistent with the Act stand hereby repealed. The only exception is in respect of Rules, Notifications, Circulars, Rubkars and Orders, which would be consistent with the said Act. Therefore, there can be no doubt that any Darbar Order relating to matters connected with land will stand repealed, if it be found inconsistent with the provisions of the Act. It will continue only if it is consistent with the provisions of the Act. The Darbar Order, dated 7 -6 -1934 cannot be said to be personal law in any sense. It was a territorial law applicable to all nationalities, races, or castes or religions, which were subjects of the Darbar. That was the law governing inheritance and succession to agricultural lands. Section 323 of the Rewa Land Revenue and Tenancy Code, 1935 specifically made a provision about inheritance and succession to grove -land. It applied the personal law of the parties to such inheritance or succession. Consequently, the matter relating to succession or inheritance in respect of agricultural lands as provided in the Rewa Land Revenue and Tenancy Code, 1935 would certainly be inconsistent with the Darbar Order, dated 7 -6 -1934. Therefore, there can be no doubt that the personal law, as provided by the 1935 Act will prevail over the Darbar Order of the year 1934 on account of the inconsistency between the two. Previously the personal law of the parties was not applicable to agricultural lands at all. It was the territorial law which applied. By the 1935 Act, the personal law was made applicable in place of the territorial law. For this reason, I am of opinion that the Darbar Order of 1934 cannot be said to be the personal law as contemplated by section 323 of the Rewa Land Revenue and Tenancy Code, 1935. It would be relevant to examine the other provisions of the Rewa Land Revenue and Tenancy Code, 1935 in order to see as to what is exactly meant by the phrase 'personal law'. Section 21 of the Act provides for inheritance to Pawais. Sub -section (3) of the said section provides as follows: - An heritable Pawai devolves to the heir provided that he is an agnate within six degrees of the last male holder (see Appendix 11) or has been adopted under section 22. Furtheron sub -section (4) of the said section provides as follows : - The widow of the last male holder shall enjoy a life interest if there is no male issue or adopted son or if the heir under subjection (3) is a reversionary, unless the custom of the family is to the contrary. Under the Darbar Order of the year 1934, no female heir was at all recognised; but only the agnates upto the sixth degree were recognised. For the first time, section 21 of the said Act recognised one female heir only, namely, the widow of the last male holder, who was to enjoy a life interest, if there be no male issue or adopted son or if the heir under sub -section (3) be a reversionary, unless the custom of the family be to the contrary. No other female heir was recognised by the said section. Therefore, the Darbar Order, dated 7 -6 -1934 will stand repealed to the extent that it is inconsistent with the provisions of section 21 of the Act. Section 41 of the Act defines a pachpan -paintalis tenant. Section 42 of the Act provides that the interest of pachpan -paintalis tenant would be heritable according to the personal law applicable to the deceased tenant, provided that the widow of the last mate holder shall enjoy a life interest, if there is no male issue or in the ease of Hindus, no adopted son, or if the heir is a reversionary. This provision was also similar to the one made by section 21 of the Act. Furtheron section 43 of the Act defines a pattadars tenant. Section 48 of the Act prescribed the order of succession to the pattadars tenant as follows: - (a) Male lineal descendants in the male line of decent, (b) Widow till her death or re -marriage, (c) Father. (d) Mother being widow. (e) Daughter -in -law, being a widow and dependent on the deceased tenant at the time of his death. (f) Brother, being a son of the same father as the deceased. (g) Brother's son. (h) Daughter's son. (i) Brother's son's son. (2) When a female who has inherited an interest in a holding under sub -section (1) of this section dies or surrenders or abandons such interest or re -marries, such an interest shall devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with sub -section (1).

(3.) WHEN any female pattadars tenant other than one subject to the provisions of sub -section (2) dies, her interest in the holding shall devolve. - (a) on her male lineal descendants in the male line; (b) if there are no such descendants, on her husband; (c) if there are no such heirs as above mentioned, on her daughter's son. The provision about inheritance or succession to the right of a pattadars tenant is altogether different from the provisions of section 21 or 42 of the Act relating to pawaidar or pachpan -paintalia tenant. Section 57 of the Act defines the Ghair -haqdar tenant as all tenants other than pachpan -paintalis tenants and pattadars tenant, sub -section (2) provides that the interest of a Ghair -haqdar tenant would for the term of his contract, if any, be heritable and will devolve in accordance with the provisions of section 48 relating to pattadars tenants. Section 323 of the Act relating to grove -holders has already been reproduced earlier, which applies the personal law of the parties without any qualification, whatsoever. A similar provision is made in section 325 of the Act relating to tank -holders, whose rights are heritable in accordance with the personal law applicable to them. Therefore, there can be no doubt that the provision made in section 323 and section 325 of the Act relating to grove -holders and tank -holders is altogether a different provision from the one made relating to Jagirdars, Pawaidars, pachpan -paintalis tenants, or pattadars tenants or Ghair -haqdar tenants. The provision relating to inheritance or succession in respect of other tenures is qualified, while the one relating to grove -holders and tank -holders is unqualified. Therefore, there can be no doubt that the matter relating to inheritance or succession to grove -holders or tank -holders would be governed by the personal law of the parties in supersession of the territorial law, namely, the Darbar Order, dated 7 -6 -1934. As regards the phrase 'personal law', there can be no doubt that the personal law in the present case would be the Hindu law, as is understood by the nomenclature, 'Benaras School of Hindu law', whereunder a daughter would get a limited interest in her father's property. Earl Jowitt in his book 'The Dictionary of English Law' Volume 2, page 1336 describes personal law as a system of law, which is limited to one of several races inhabiting a State. So far as this country is concerned, the personal law is understood in the sense of the religious faith professed by a person. A Hindu would be governed by the principles of Hindu law, while a Mahomedan will be governed by the principles of Mahomedan law, both of which are customary laws, which have prevailed through ages. Similarly, a Jain or a Gond will be governed by the customary law, if there be any, or by the Hindu law. A Christian or a Parsi will be governed by the provisions of the Indian Succession Act. It is in this sense that the phrase, 'personal law' is understood in this country. Therefore, there can be no doubt that when 1935 Act specifically made the personal law of the parties applicable to agricultural holdings of grove -holders without any qualification, the matter of inheritance to Jagatdhari shall be governed by the principles of Hindu law as per the Benaras school. Therefore, the question is whether Jagatdhari was joint with his brother, Rampalat. If he was joint, the other members of the coparcenary will get the property by survivorship. But, if Jagatdhari on the one hand, and Rampalat and his Bona, on the other hand be separate, Mat. Nandkumari alone will inherit the property in limited right. Further, there can be no doubt that the Rewa Land Revenue and Tenancy Code, 1935 will be applicable to agricultural lands only. The Darbar Order, dated 7 -6 -1934 will still be the law, until amended or repealed, so far as non -agricultural property is concerned. The learned counsel for the appellant, however, urged that the respondent would be estopped from claiming the property, as Raghuwansh had allowed Brijpati to redeem the mortgage by accepting the mortgage money. Even if it be so, there can be no estoppel against Met. Nandkumari. Moreover, there can be no estoppel against statute as laid down by their Lordships of the Supreme Court in Tkakur Amarsinghji and Others v. State of Rajasthan and Others, AIR 1966 SC 504. At any rate, the question of succession cannot be affected by the supposed estoppel arising on account of the action of Mst. Nandkumari's husband. The trial Judge was not right in holding that Mst. Nandkumari or her sons will not have any right to the suit property. The learned appellate Judge acted rightly in decreeing the plaintiff's claim subject to equities being worked out between the parties, namely, payment of the mortgage money which Brijpati had paid on behalf of himself and the present appellants. Further, there can be no doubt that Mst. Nandkumari would be the heir, as Jagatdhari and Rampalat had separated long back. They were not joint at the time of Jagatdhari's death in the year 1936. The present appeals relate to the agricultural property alone and not the non -agricultural property. Therefore, the view taken by the learned appellate Judge is correct on merits. Consequently, this appeal and the connected appeals fail and are dismissed with costs. Counsel's fee according to schedule or certificate, whichever be less. The costs of the Courts below shall be borne, as directed by the first appellate Court.