TEJ SINGH Vs. PRABHU

JUDGEMENT

(1.) These two appeals have been filed against an appellate order of the learned Divisional Commissioner, Udaipur dated 21.7.59 and shall be disposed of by this single judgment, as a common point of law is involved, in both of them. It appears that in the two appeals pending before the learned Commissioner it was prayed that one of the appellants viz.. Nazar Sing having died, his legal representatives Shri Basanti Lal and Shrimati Roop Kanwer, father and widow respectively of the deceased Nazar Singh be brought on record for prosecuting the appeals. On notice having been given to the opposite party to show cause why the said legal representatives be not brought on record, they alleged that the deceaseds daughters daughter should have also been made a legal representative in addition to the two persons referred to above, and as no such prayer was made within the prescribed period of limitation the whole of the appeal should abate. This argument was based on sec. 8 of the Hindu Succession Act, 1956. Somehow, it prevailed with the learned Commissioner, who thought that the daughters daughter of the deceased being a heir under the Hindu Succession Act, 1956, was also a legal representative of the deceased and should have been along with others brought on record and that on failure to do so within the prescribed period of limitation the appeals before him were bound to abate in toto.

(2.) This is the order in both the appeals before us. The learned counsel for the appellants pointed out that the decision given by the lower appellate court was based on an incorrect appreciation of the provisions of the law in this behalf. It was urged that the application of sec. 8 of Hindu Succession Act 1956 was exempted by sec. 4(2) of the Act in so far as it related to the devolution of tenancy rights in respect of an agricultural holding. This contention is bound to succeed. The dispute between the parties admittedly relates to an agricultural holding and the legal representatives of the deceased tenure -holder will be only such heirs as are recognised for purposes of succession in sec. 40 of the Raj. Tenancy Act which was in force on the date when this question arose. The parties are Hindus and in this context, the expression personal law in sec. 40 of the Rajasthan Tenancy Act means Hindu Law. The father and the widow of the deceased, exclude a daughters daughter from being an heir of a deceased tenant under Hindu Law. The principle of recognising particular persons as preferential heirs to the exclusion of others known to Hindu Law has not been abrogated by the Hindu Succession Act. A similar question came up for decision before the Bombay High Court, which in A. I. R., 1959, page 78, held that the law regarding devolution of Tenancy rights in respect of agricultural holdings amongst Hindus which was in force at the time of the enactment of the Hindu Succession Act, 1956 was clearly saved by sub -sec. 2 of sec. 4 of the Act. This leaves no room to doubt that in the presence of the father and widow, a daughters daughter of the deceased tenant could not be brought on record as his legal representative in the appeals pending before the learned Commissioner. The lower appellate court was, therefore, clearly wrong in holding that as the daughters daughter was not made a legal representative of the deceased within the prescribed period of limitation, the appeal should abate in toto. Accordingly, we allow both the appeals set - aside the orders of the lower court and direct him to proceed further with the hearing of the appeals after bringing the father and widow of the deceased on record as legal representatives if the prayer to do so was made within the prescribed period of limitation.