BALURAM Vs. KANHIRAM

JUDGEMENT

(1.) This is an application in revision against an order of the learned Divisional Commissioner, Bikaner dated 14.9.56. In order to appreciate the nature of the dispute the following genealogical table accepted by both the parties may be reproduced below: - - Mohanlal Chunilal Kaluram Chetan(Died in 1988) Gangaram(Died in 2004) Kaniram(Opposite party) Sohanlal(Mst. Devi, widow) Surja(Died) Baluram(Applicant)

(2.) The facts of the case in brief appear to be that Mohanlal an occupancy tenant of 134 Bighas in his life time separated his son Chunilal by giving him 43 Bighas and retaining the remaining 91 Bighas for himself and his three sons Gangaram, Kaluram and Chetan. They remained respectively in possession of their separate holdings After the death of Mohan Lal the Khata was mutated in the joint tenancy of his three sons. Chetan died without leaving a mile issue Kanhiram the opposite party whose father had also died in the meantime did not contest his claim to the Khata of Chetan and the whole of the Khata was mutated jointly in the name of Kaluram and Gangaram the two surviving brothers of the deceased Chetan. On Kalurams death his share in the Khata was recorded in the name of his two surviving sons Sohanlal and Kaluram along with Gangaram, the third one viz. Surja having predeceased his father. Later on Gangaram also died without leaving a male issue in Svt 2004 and Sohanlal too died leaving his widow Mst Devi. On an application of Kanhiram; the Naib Tehsilder mutated the Khata of the land measuring 91 bighas jointly held by the deceased Gangaram along with the applicant, in three portions viz. Mst Devi 34 bighas, Baluram 34 bighas and Kanhiram 23 bighas. This was resented to by both Baluram and Mst. Devi. An application was filed before the S.D.O. for correction of the entries in the revenue records. The opposite party in his written statement repelled these averment. He however admitted that he had voluntarily relinquished his claim to the share of Chetan on his death. After framing necessary issues and recording the evidence of the parties the S.D.O. allowed the application and ordered that the whole of 91 bighas be recorded in the name of Mst. Devi and Baluram to the exclusion of Kanhiram. In appeal however the Addl. Collector took a different view in the matter and held that the opposite party was entitled to succeed along with Mst. Devi and Baluram to the share of Gangaram. The decision of the S.D.O. was set aside and the order given by the Naib Tehsildar was confirmed. A second appeal was filed by the applicant before the learned Commissioner but without any success. The case is now in revision before us.

(3.) Shri Pannalal counsel for the applicant urged that as Mohanlal the common ancestor of the parties had separated one of his sons Chunilal, the father of the opposite party during his life -time, and had also given him a separate share in the holding measuring 43 bighas, the opposite party ceased to be a member of the joint family and could not therefore claim a moiety in the joint tenancy held by the applicant and the deceased either by succession or survivorship. Shri Swami the counsel for the opposite party however urged that the property in question being an ancestral one the opposite party who was a male lineal descendant of the deceased Gangaram was entitled to succeed to his share along with the applicant under sec. 94 of the Bikaner Tenancy Act. We have read sec. 94 of the Bikaner Tenancy Act relating to succession to tenancies which is in a large measure a reproduction of sec. 59 of the Punjab Tenancy Act. It may with advantage be reproduced below: - - Sec. 94 (1) - -When a tenant having a right of occupancy in any land dies, the right shall devolve: - -