AMB SINGH Vs. JETHMAL

JUDGEMENT

(1.) THIS is a judgment-debtor's appeal in an execution muter and raises an interesting question as to whether the Jagir to which he succeeded on the death of his father was in the nature of personal property, and, therefore, the compensation payable to him in lieu of the resumption of this Jagir was not attachable in execution of a decree passed against him as the son and legal representative of his deceased father.

(2.) THE facts leading up to this appeal lie within a short compass. THE respondent filed a suit for recovery of money against Devisingh, Jagirdar of Narnawas, a scheduled Jagir in the Jalore District. Devisingh died during the pendency of this suit sometime in 1953-Consequently, his son Ambasingh, the present judgment-debtor was impleaded as his legal representative, and eventually a decree for R. 3. 40,356/- including principal and interest was passed against him on the 19th September, 1957, by the trial court, and a direction was given that this decree would be executable against the estate of the deceased Devisingh. An appeal against this decree has been filed by Ambasingh in this Court which is pending but with that we are not concerned. THE decree-holders respondents in the meantime applied for execution of this decree on the 17th December, 1957, and among other property, they prayed for attachment of certain bonds, which, it was alleged, were shortly going to be paid to the appellant in lieu of compensation for his Jagir which had been resumed during the interval. THE executing court thereupon issued an attachment under O. 21, rule 52 of the Code of Civil Procedure. To this, the judgment-debtor appellant filed an objection. His submission was, put briefly, that on the death of his father Devisingh, the jagir of Narnawas which was held by his father had been received by him as a fresh grant in Svt. 2009 (corresponding to some time in 1953) and consequently, the income realised by him from this Jagir as well as the compensation in lieu of the resumption of this Jagir which had been received by him or which was still to be received by him was and would be his own personal property, and it could not be said to be something which he had received as the property of his deceased father Devi Singh or as his son and successor. Reliance was placed in support of this submission on the Marwar Land Revenue Act, 1949 (Act No. XL of 1949) (hereinafter referred to as the Act of 1949) as this Jagir was situate in the former State of Marwar; and this law was still in force at the time the Jagir in question devolved on the appellant. According to the appellant, therefore, the Jagir of Narnawas was his personal property and the decree in question which was executable only against the estate of his father Devisingh could not be executed against the income of the Jagir or anything payable to him in lieu thereof. THE respondents, on the other hand, contended that the devolution of the Jagir on the appellant was not a fresh grant to him and that he had inherited the same as the son and successor of his deceased father Devisingh, and, consequently, any compensation payable to the appellant in lieu of this Jagir could not be his personal property any more than the Jagir itself, and it was, therefore, contended that the respondents' decree was perfectly executable against the bonds which were payable to the appellant in lieu of compensation for the resumption of his Jagir. THE learned Senior Civil Judge, Jalore, who was the executing court, repelled the appellant's objection and held that the appellant had succeeded to the Jagir of Narnawas as the son and successor of his father Devisingh, and that the Jagir was not his personal property, and, therefore, the decree-holders were entitled to realise the amount of their decree from the amount of compensation which was payable to the appellant for this Jagir. Aggrieved by this judgment, the judgment-debtor appellant has come up to this Court in appeal.

(3.) IN this connection, we may refer to a bench decision of this Court in Thakur Akhey Singh Vs. Mahaveer Chand (1 ). The facts of this case were that D. , a Jagirdar in the former State of Jodhpur, leased two of his jagir villages to the plaintiff for a period of 24 years. The plaintiff came in possession of the villages in July, 1941. D's jagir was, however, taken under the Court of Wards in February, 1942, and so the plaintiff was dispossessed from these villages. This jagir was, however, released from the Court of wards, and the jagirdar got back into possession. Thereafter the plaintiff filed a suit for possession of the leased villages against the son and successor of the lessor jagirdar, D. IN these circumstances, one of the pleas raised by the defendant was that his father D was not competent to make the lease which would enure beyond his life-time. Reliance was placed on behalf of the defendant on sec, 183 of the Act of 1944 according to which all grants of Scheduled Jagirs are for the life-time of the holder. This plea was repelled, and it was pointed out that if the intention was that a lease,-whatever may be its term, would come to an end when the lessor dies, it should have been very easy for the Legislature to provide for it by adding a proviso to sec. 192. Reference was made to what are called the Bhoglawa Rules of 1914 vide the Marwar Gazette dated the 17th October, 1914, at page 17. According to rule 8 of these Rules, as they were originally framed, no jagirdar was permitted to mortgage his land for more than 20 years and it would be a condition of the mortgage that, after the period of 20 years was over the land would revert to the mortgagor or his heir free from all encumbrance. By a sub-sequent amendment of rule 8 which appears in the Marwar Gazette dated the 2nd October, 1915, at page 14 thereof, the period of 20 years was raised to 24 and it was provided that after the period of 24 years was over, the land would revert to the mortgagor or to his heirs, and the encumbrance would be wiped out. IN the premises it was held that the jagirdar would be within his bounds in making the mortgage for a period of 24 years as the maximum, and that if he died within this period, the mortgage would remain valid after his death for the stipulated period, and his heirs would then get back the property, and it was further held, therefore, that the lease did not come to an end at the death of jagirdar D. We respectfully agree with this view and may add that a lease or a mortgage by a jagirdar with respect to his jagir or any part thereof for a period of 24 years could be enforced against his son for the said period only if the estate which he receives from his father in his hand is not a fresh grant from the Rule but which has devolved on him from his deceased father by succession.