PT JAYVANT RAO Vs. PT CHANDRAKANT RAO

JUDGEMENT

(1.) THIS is a Civil First Appeal in a suit for partition which has been dismissed by the District Judge, Kota, as he decided certain preliminary points against the plaintiffs.

(2.) THE pedigree table of the family on the next page shows the relationship of the parties to the suit. Pt. Ramchandra Lalji Pt. Govindraoji Pt. Ganpat Raoji adopted Smt. Kesharbai widow (Deft. No. 12) Pt. Motilal alias Krishnaraoraji Pt. Purshottam Raoji (Adopted) Smt. Rukma Bai widow (Deft. No. 13) Pt. Chandrakant Rao (Deft. No. 1) Pt. Suryakant Rao (Deft. No. 2) Pt. Laxmikant Rao (Deft. No. 3) Smt. Anandi Bai (Deft. No. 14) Smt. Sudhabai (Deft. No. 15) Smt. Sumitra Bai (Deft. No. 16) Pt. Manakraoji (Deft. No. 4) Kumari Uttara (Deft. No. 19) Kumari Nirmala (Deft. No. 20) Kumari Sobhana (Deft. No. 21) Deepak (Deft. No. 5) Deelip (Deft. No. 6) Ujjavala (Deft. No. 22) Ajeet (Deft. No. 7) Raja (Deft. No. 7) Pt. Krishna Raoji (Deft. No. 9) wife Shankuntla Bai Pt. Jaivant Rao (Plaintiff No. 1) wife Smt. Sanehlata Bai (Deft. No. 18) Pt. Vishvarao (Deceased) Pt. Ram Chandra (Pltf. No. 2) Shrikant (Plaintiff No. 3) Girish (Plaintiff No. 4) Asha (Defendant No. 27) Pt. Pandharinath (Deft. No. 10) Pt. Udai (Deft. No. 11) Deoyani (Deft. No. 23) Lilawati (Deft. No. 24) Ratna (Deft. No. 25) Rekha (Deft. No. 26)

(3.) IN the year 1937, Pt. Purshottam Rao died, and on 22. 1. 1938 the mutation order was passed in favour of Pt. Chandrakant Rao and this order is the subject matter of controversy. IN this order, the entire history of the mutation of the Jagir has been repeated. Looking to the importance of this document, its free translation in English is given below - "revenue report dated 10th November 1937 perused. Old file of restoration and mutation entry as well as some documents presented now by Pt. Chandrakant have been seen. The pedigree table of this family is, as under - Chandrakant Suryakant Laxmikant Jayantrao Krishnarao Vishwanath Ramchandra Ganpat Rao (came in adoption) Govind Rao Purshottam Rao (came in adoption) Motilal Ramchandra Rao Lalaji (came in adoption) Balaji Jaswant According to Samat Mitti Jeth Badi 12 Svt. 1894, the following villages which were in the Jagir or 'udak' of Pt. Ramchandra Lala s'/o Pt Govind Rao since long have been restored (Bahal) in Jagir and ordered that his sons and grandsons will enjoy this Jagir: (1) Sarola, (2) Malenwasa (3) Chetawa, (4) Kakdra, (5) Chapakhur, (6) Swas, (7) Neem-ka-khera, (8) Lakhawa. IN future it was ordered that Thikana 'subhchintaki' which this Thikana performed was to be continued and 'barad' except Hasil was exempted. Besides Govind Rao, Pt. Ramchandra Lala had one younger real son Motilal also. But his name does not appear in the said 'sanad'. Govind Rao and Motilal both died issueless. Hence Govind Rao adopted Ganpat Rao and Motilal adopted Purshottam Rao. IN the order dated 19th March 1910 of Mahakma Khas names of both Ganpat Rao and Purshottam have been entered as having possession over the villages of the Jagir and the order for restoration has been given in their name. On the death of Ganpat Rao at the recommendation of Biledar of Thikana that according to custom, mutation entry is made in the name of the eldest son, Mahakma Revenue on'30th August 1925 recommended the mutation entry be made in the name of Purshottam Rao. But on 20th February 1928 it was enquired from Pt. Purshottam Rao as to what objection he had in making mutation entry in the name of Chandra Kant elder son of Ganpat Rao as was done in the past. He gave his consent to the making of the mutation entry in the name of both. So mutation entry in the name of both was made in this office by the order dated 23rd February 1926. It will be proper to mention here that Purshottam Rao in whose favour mutation entry has been recommended by the Revenue Department was adopted son of Motilal and from junior branch. But he was considered elder due to his age. Though mutation entry has been made in the name of both by this office but 'aijaz' of Jagir and management remained in the name of Purshottam Rao alone. Now Purshottam Rao has died and the question of making mutation entry in his place has arisen. Pt. Chandrakant desires that according to custom of this state and other states of Raj-putana, mutation entry of the entire estate should be made in his name alone as he belonged to senior branch as well as was the eldest of all in age, while Krishna Rao, the eldest son of Purshottam Rao wants that his name should also be entered along with Chandrakant. It could not be found out by perusal of the Sanad as to why the practice of making mutation in the name of both brothers started in this Thikana after the death of Ganpat Rao when Ganpat Rao's issues were present and they belonged to senior branch, The apparent reason is that Chandrakant Rao was minor at that time. There was harmony in the family. Purshottam Rao who was whole and sole (in the family) got written a report in his favour by Biledar and got entered his name. When a question arose he gave his consent to enter the name of Chandra Kant Rao son of Ganpat Rao also. Possession and management of Thikana remained with him. It appears from the above contents that no particular practice of mutation entry was established in the family. First of all mutation was entered in the name of one person of the family and thereafter it was even done in the name of two, but only one person continued to be recognized as the Head (Sarkerda) of the family as well as principal Jagirdar. The remaining members received maintenance being members of joint family. Now the question about this Jagir which is a of a special type and about which the Governor-General's Agent in Rajasthan had admitted in his order dated 27. 9. 1854 that it had been granted to Pt. Ramchandra Lala in lieu of 'farkhati' for the debt of Rs. 9,27,384/15/6 and the Governor-General's Agent had further ordered that it could be taken back on payment of amount of 'farkhati' to the person having possession as to what should be its shape in future and to when it should be given, whether it may be distributed amongst all members of Ram Chandra's family? No doubt the last 'sanad' granted m the name of Ramchandra and his eldest son Govind Rao alone was granted on writing a 'farkhati' for the debt but when the unpaid debt was changed in the form of a Jagir and no special condition was laid down regarding it and the name of only the eldest brother was written in the 'sanad', though another brother was present there, it will have to be held that this Jagir was intended to be given on the same rules on which the other Jagirs were granted. IN fact mutation entry for the entire Jagir should have been made in the name of Chandrakant after the death of Ganpat Rao. Had this been done, the necessity of deciding the point at issue would not have arisen now. The principle of partition of the Jagir amongst all the lineal descendants of a common ancestor has not been followed so far because the shape and form of the Jagir would not remain by the partition of the Jagir, which ought to have remained, looking to the Aijaz (dignity) of the Thikana. On the contrary, there was possibility of its fragmentation due to its distribution into small pieces. There are seven co-sharers in the descendants of one common ancestor of this family. If this entire Jagir is distributed amongst them, then even the name of the Thikana will disappear. According to the custom of the States in Rajputana as well as in this state, the mutation entry is made in the name of the eldest son of the senior branch. The junior members have only a right to maintenance. The Thikanas are in existence because of this principle alone, otherwise no Thikana can last for long. Hence, to keep this Thikana in existence the custom and usage of other Thikanas in this state shall have to be enforced. Therefore, His Highness orders that mutation of this entire. Jagir be made in the name of Pt. Chandrakant and (he) conferes on him the status of Jagirdar. The younger real brothers of Pt. Chandrakant and his cousin brothers sons of Pt. Purshottam shall have a right to get maintenance from this Thikana and Pt. Chandrakant will make proper arrangement for their maintenance. No 'lag' or 'chakri' has been fixed for this Thikana as per 'sanad' Jeth Badi 12, Svt. 1894 and it appears from a perusal of copies of Sanads granted prior to this Sanad which have been filed by Pt. Chandrakant that no 'lag' or 'chakri' had been levied even in the past. As discussed above, this so happened because this Jagir was of a special type. Otherwise Thikanas existing in this state are bound by custom to give 'lag' or render 'chakri' or either of the two. Now when this Thikana is being given a proper shape, its custom and status will be similar to that of other Jagirdars of this state. IN such circumstances it would be proper to levy some 'lag' or 'chakri' on this Thikana also. As 'udak' was also included in this Jagir previously and 'barar' was not leviable, no 'lag' shall be levied on it even now. But this Thikana shall have to give at least 'chakri Choki' for 3 months besides 'chakri' for four festivals as is being given by the other Thikanas and it will continue to do 'subhchintaki' as in the past. ''ordered tkat - Jagir Thikana Sarola may be restored in the name of Pt Chandrakana Rao on condition of performing 'chakri-chowki' for 3 months besides 'chakri' on 4 festivals and loyalty. 'nazrana' for mutation entry and 'matmi' which is generally realised as fees 'kabuliyat' Virasat' Jagir from big Jagirs shall be leviable as Rs. 3,000/- and Rs. 300/-respectively. Returned in original through Accounts Department. Bakshi Khana may be informed through the Private Secretary. Thikana may also be informed. "