BHONRA Vs. GANESH

JUDGEMENT

(1.) The learned Members were hearing two appeals No. 40 and 41 filed by Bhonra, Nanda, Chhottu and others appellants against the decree and judgment of the Additional Commissioner, Jaipur dated 16.11.1959. Both parties had filed cross suits relating to the same piece of land consisting of 13 bighas and 7 biswas, Bhonra and others sought declaration of their Khatedari rights over the suit land while Ganesh and Govinda claimed possession of the suit land on the ground that they were tenants, but were wrongfully dispossessd by Bhonria. The trial Court decreed Bhonrias suit and dismissed that of Ganesh and Govinda. In appeal this judgment was reversed by the Additional Commissioner,who decreed Govindas suit for possession and dismissed Bhonrias declaratory suit. It was against that judgment that Bhonria filed these two appeals on the 14th of December, 1959. During the pendency of these (Bhonrias) appeals, Ganesh, one of the respondents died on 7.2.1961 leaving behind him widow Kalyani, a son Govinda, who was already respondent on record and a daughter Birdhi and a daughters son, Jagdish. At the time of the arguments, the counsel for the respondent raised a preliminary objection that as all Ganeshs heirs, under the Hindu Law were not made parties to these appeals, Bhonrias appeal abated in toto. The counsel for the respondent further urged that Ganeshs heirs under the Hindu Succession Act were necessary party whereas the counsel for the appellants reply was that the Hindu Succession Act did not apply to the devolution of agricultural tenancy in accordance with the decision of the Board in Tej Singh vs. Prabhu, reported in R.R.D. 1960, page 169 and unless that decision was reversed that Division Bench could only refer the case to the Full Bench and not take a decision contrary to the previous one. The learned Members of the Bench, therefore, examined the case fully and came to the conclusion that there were conflicting opinions of the Board of Revenue on the question, whether the Hindu Succession Act applied to the devolution of agricultural tenancy, within the meaning of sec. 40 of the Rajasthan Tenancy Act or not and therefore referred the matter to this larger Bench in the following words:

(2.) It was the contention of Shri S. N. Pareek, counsel for the appellant that under the Constitution, a State alone was competent to legislate for land tenures. After the Jaipur Tenancy Act was repealed by the Rajasthan Tenancy Act, 1955, the only law applicable for the devolution of tenancy was the Ordinary Hindu law and not the Hindu Succession Act, 1956, which was an enactment of the Central Government.

(3.) Shri R.C. Sogani appearing on behalf of the respondents replied that personal law of Hindus where both parties are Hindus means the Hindu Law as given in the scriptures and modified from time to time by custom and statutes. Since the customary Hindu Law of Succession had been modified by a special enactment known as the Hindu Succession Act, 1956, that law alone would govern the devolution of agricultural tenancies. The Union Government which enacted the Hindu Succession Act was competent to provide for all matters of succession under the concurrent list No. 3 of the Constitution. There being no special law under sec. 40 of the Rajasthan Act within the meaning of sec. 14 of the Hindu Succession Act, the Hindu Succession Act would apply to this case in full vigour. On the facts and circumstances of this case, the succession to tenancy arose in pending case when Ganesh died on 7.2.1961. It is admitted by both sides that under sec. 40 of the Rajasthan Tenancy Act, the devolution of tenancy would take place in accordance with the personal law of the tenant dying intestate. The answer to the reference made to this Bench, therefore, depends upon the interpretation of the words "personal law." There is no doubt that the Hindu Law of Succession is the personal law of the parties. The only question that remains to be decided is whether the Hindu Law as it stood prior to the enforcement of Hindu Succession Act should apply to this case or those provisions of the Hindu Succession Act should apply which have greatly modified the previous Hindu Succession Law. In other words, the question for determination before this Full Bench is whether the Hindu Succession Act, 1956, would govern succession as the personal law of the Hindus in matters of devolution of agricultural tenancies of not.