DAYARAM & ORS. versus DAWALATSHAH & ORS.

324

DAYARAM & ORS. v. DAWALATSHAH ?!< ORS. January 8, 1971 [J. C. SHAH, C.J., K. S. HEGDE AND A. N. GROVER, JJ.]

Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahal•, Alienated Lands) Act 1 of 1951-,SS. 3, 14-S. 14 scope of-,Section on(v .. infenil~d to determine the Proprietary rights in lhe land qua the State-,-Dhanora-Zamindari-Succession by lineal primogeniture-'Neaf· 4!st male relati,ve' does not mean eldest male re/aiive.

Under the Chanda Patent and the terms recorded in the Wajibul-Arz the 'Dhanora Zamindari was impartible and on the death df the holder it devolved upon his eldest son and in the absence of a legitimate or an adopted son it devolved upon the nearest male relative. The succession to the· Zamindari was subject to the power of the Governor to dispossess a. person found unfi( to observe the conditions of loyalty, good police 11dministration and improvement of the estate. The respondent instituted an action for possession of certain immovable properties including the zamindari and for recovery of compensation, in respect of ma/guzari the land•, paid to the appellants in consequence of the enactment of · Madhya Pradesh Abolition of Proprietary Rights ·· (Estate, Mahals, Alienated Lands) Act, 1951. They claimed the Zamindari relying upon the rule of primogeniture and other estates as devisees under a Will. The trial court decreed the suit and the High Court affirtned the decree with In the appeal to this Court the a~~ellants urged that o.light modifications. (I) the Zamindari devolved on the death of the holder on the male re lative who is senior most in age and not the eldest member in the senior line; (2) by the order of the Governor the Zamindari was conferred upon the first appellant as he was fotind suitable to hold the zamindari and since the Governor had thC' power to det~rmine inheritance and the right to remove a person, the holder of the zamindari had merely a life interest; and (3) the compensation officer had decided by his order under s. 14 in respect of malqutari land was. payable -Of the Act that compensation to the first appellant and since no suit was filed by the plaintiffs for set ting aside that decision within the period specified, the order of the com pensation officer bec•me final and conclusive.

HELD : (I) By the 'JSO of the expression "the nearest male relative" the test of propinquity alone may be applied and when there are two or more claimants equally teJ110Ved from the common ancestor the eldest male member in the senior most line will be preferred. The contest bet ween the parties had to be adjudged in the light of the rules of lineal In determining a single pdmogeniture governing an impartible estate. heir according to the rules of primogeniture the class of heirs who would

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DAYARAM v, DAWALATSHAH (Shah, C.J.)

325

be entitled to succeed the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected. By the expression "nearest male relative'' it was not intended to confd: the estate upon the eldest male relative of the Zamindar. The High Court was, therefore, right in holding that the Zamindari devolved upon the first respondent to the exclusion of the first appellant. [333 C-F]

(2) The power vested in the Governdr to take extraordinary steps to protect the interest of tho zamindari by the removal of the,..bqlder did not restrict the title of the zamindar to a mere life interest. Tiie power had to be exercised in accordance with the custom of the famjly and an order by the Governor purf'orting to exercise powers under the Chanda Patent contemplated a quasi judicial inquiry. The order does not show that any lnquiry was made for determining the rights of the contesting claimants. [334 G]

(3) Section 14 of Act 1 of 1951 does not invest the compensatioo officer with jurisdiction to determine competing claims of persons claim ing proprietary rights to the property vested in the Government by the operation of s. 3 of the Act. Section 14 is intended to determine only the proprietary rights in the land qua the State. (339 D-E]

C1VIL APPELLATE JURISDICTION: Civil Appeal No. 2433 of

1966.

Appeal from the judgment and decree dated August 2, 1965 of the Bombay High Court, Nagpur Bench in Appeal No. 113 ct. 195 9 from original decree.

V. S. Desai, v. N. Swamy, K. Rajendra Chaudhuri and K. R.

Chaudhuri, for the appellants.

M. N. Phadke and A. G. Ratnaparkhi, for the respondeints.

The Judgment of the Court was delivered by

Shah, C.J. Dawalatshah and Ranwirshah-sons of PrataP" shah-instituted an action in the Court of the Additional District Judge, Chanda, for a decree for possessi'ln of property immovable (including the Zamindari of Dhanora) and movable specified in the Schedules annexed to the plaint, and for an order for payment of mesne profits and also for recovery of the amount of compen sation in respect of certain lands received by the defendants from the Government of Madhya Pradesh and for an order dedaring

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their right to receive the balance of compensation remaining to be paid. The plaintiffs relied upon the fqllowing genealogy :

Niru

Thakur .

Sitaram Thakur

Gangashah

I

Bhakta Thakur

Sakru Thakur

Kajur.

Thakur

Raju Thakur

Chatturshah (dead)

Tanba Thakur

Nilkanthshah

Pratapshah

; Daw~ltshah

(Platff.

No. I)

Ranwirshah Gutab Shah (dead)

(Platff. No. 2)

Lallshah (•lead)

A

B

c

D

An1arshah Bao;u Died Dec. 9,

1950)

Hanmantrao

Diwakarrao (Die•J Sept., 8, 1932)

Chandarshah (dead)

Karanshah (dead)

Niranshah

E

Ball•rshah

Karansl"'ah

Day2ran1 (Deft. dt. No, 1)

Indershah

(Deft. No. 2)

F

G

Govinda

Bud ha

I.axman (dead)

The plaintiffs claimed that the property in

suit originally u

belonged to Gangashah. Gangashah had· five sons : Hiru, Bhak:ta, Sakru, Kajur and Raju. The branches of Sakru and Kajur became extinct a long time ago. The branch of Hiru (who was

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DAYARAM V. DAWALATSHAH (Shah, C./.)

327

the eldest among the five sons of Gangashah) because extinct with the death of Amarshah on December 6, 1950. The plaintiffs claimed the Zamindari held by Amarshah relying upon the rule of primogeniture, and the other estate of Amarshah as devisees under the will of Amarshah executed on December 3, 1950. They submitted that the Dhanora Zamindari was granted to Sitaram ancestor of Amarshah as an impartible estate, devolv~rig by the rule of primogeniture; that the Zamindari on that account devol ved on the death of Amarshah upon Pratapshah and that on the death of Pratapshah and Zamindari devolved upon the first plaintiff. The plaintiffs also claimed that the other property in them under a will cluding Malguzari lands devolved upon executed on December 3, 1950 whereby Amarshah devised his estate in their favour. Accordingly the first plaintiff claimed that he was entitled to the Zamindari on the death of Pratapshah on January 27, 1951 and the plaintiffs claimed the other estate of Amarshah as devisees under his will. The plaintiffs submitted that Dayaram the first defendant took wrongful possession of the Zamindari and other property, movable and immovable of Amarshah.

The defendants by their written statement maintained that the genealogical table set up by the. plaintiffs was incorrect, that by the order of the Governor of Madhy11. Pradesh dated November 9, 1951, the Zamindari was conferred upon the 1st defendant Dayaram as he was found suitable to hold the Zamindari and the decision of the Governor was bidding upon the plaintiffs; that the decision of the Compensation Officer regarding Malguzari lands the Madhya which vested in consequence of the enactment of Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Act 1 of 1951, had become binding and con clusive against the plaintiffs because no suit challenging the deci sion was instituted within two months from the date thereof and the plaintiffs were on that account not entitled to claim the com pensation paid or payable in respect of the Malguzari lands; that Amarshah did not execute the will set up by the plaintiff~ and that Amarshah had made a will dated December 8, 1950 under which his estate was devised in favour of the defendants.

The Trial Court held that the Dhanora Zamindari was impar tible and was governed by the rule of primogeniture and Pratap, shah father of the plaintiffs being the eldest member of the senior most branch from among the descendants of the cc:nmon ancestor Gangashah was entitled to the Zamindari; that the plaintiffs were entitled to receive compensation in respect of the Malguzari lands and the decision of the Compensation Officer did not operate to deprive the plaintiff of the right to those lands or compen~ati~n payable in respect thereof; that the will >et up by the plamttffs

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SUPREME COURT REPORTS

[1971]3 S.C.ll.

dated .Decen_iber ~, 1950 was genuine and the plaintiffs . were A under. the will entitled. to the estate devised in their favour by Amarshah; that the will dated December 8, 1950, set up by the defendants was "a fabricated will" and conferred no right or title upon the. defendants; and that the genealogical table set up by the plamttffs represented the true relationship between the descen- dan~s of Gangashah.

B

In appeal jJy the defendants, the High Court of Bombay con firmed the decree of the Trial Court with a slight modification. Th~ l;ligh Court held that the gen~alogical table set up by the plamttffs was correct, that accordmg to the custom governing succession Dhanora Zamindari devolved upon Pratapshah on the C death of Amarshah, and on the death of Pratapshah the fir~tplain- tiff became entitled to the Zamindari, that the order of the Gover- nor recognising Dayaram as Zamindar was not binding and con c:usive, for it was not shown that in making the order the Gover- nor had acted in exercise. of the power conferred by the Chanda Pat~nt; that the order was contrary to the customs and the law governing the Zamindari; that the decision of the Governor did D not oust the jurisdiction of the the Civil Court; that the will dated December 8, 1950·set up by the defendants was not genuine and the will set up by the plaintiffs dated December 3, 1950, was genuine; anci that the plaintiffs' suit with regard to Malguzarl lands was not barred by the decision of the Compensation Officer. The High Court accordingly confirmed the decree passed by the E Trial Court in respect of the Zamindari replying upon the rule of inheritance incorporated in the Wazibul-Arz of the Ch<.aua Dis trict and by succession under the will dated December 3, 1950 in respect of the other property except as to certain occupancy lands held by Amarshah.

With certificate granted by the High Court the defendants F

have appealed t'J this Court.

Certain concurrent findings on which not much argument was advanced at the Bar may first be set out. The High Court agreeing with the Trial Court on appreciation of evidence held: that the 2enealogy set up by the plaintiffs represented the true relationship G between the parties. Again the High Court agreeing with the Trial Court held that the will dated December 3, 1950 set up by the plaintiffs .was genuine while the will dated December 8, 1950 set up by the defendants was not genuine. The argument that the High Court did not give due weight to certain important circurnstances in reaching \their conclusion relating to the will set H up by the plaintiff is with9~t ~ubstance. ~he c_ircumstances relied upon are that the wntmg mstrument with which the ix?dY of 1he will was written and the writing instrument with which

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DAYARAM v. DAWALATSHAH (Shah, C.J.)

329

Amarshah, it was claimed, signed or executed the will were diffe rent, that the will ..vas not registered, that the appearance of the will was suspicious, that the will was unnatural because it devised the estate in favour of the plaintiffs after giving a life interest in favour of the testator's widow Ratnabai, that the will haq not been produced before the revenue authorities and before the Com pensation Officer when disputes in relation to the estate of Amar shah were pending before those authorities, and that it was pro duced for the first time nearly seven years after the death of Amarshah, and that the scribe who wrote the will did not belong to the village to which Amarshah belonged. The Trial Court and the High Court have reached the conclusion that on the circums tances no suspicion as to the genuineness of the will dated Decem It may be noticed that the plaintiffs were, at ber, 1950 arose. the date of their father's (Pratapshah's) death minors, and soon after Pratapshah's death, their mother abandoned them and re married. Thereafter ~o one attended to the pending litigation. Failure to produce the will before the revenue authorities was· therefore not a circumstance in the view of the High Court, In the view which militated against the genuineness of the will. of the Courts absence of registration, appearance of the will, the contents thereof, the dispositions, thereunder, and the fact that the writer of the will belonged to another village did not in the circumstances of the case give rise to any suspicion. We do not think that sitting in appeal we would be justified in interfering with the conclusion recorded by the Trial Court and confirmed by the High Court on what is essentially a conclusion on a ques tion of fact.

The will set up by the defendants is not proved to be a genuine will executed by Amarshah. This again is a concurrent finding of the two Courts and must be accepted this · Court. No argument has been advanced to pursuade us to take a. different· view. The rights of the parties must be adjudged i11 the light of these findings.

in

The dispute between the parties relates to three set of proper

ties-

(a) Dhanora Zamindari (b) Malguzari lands; ( c) Occupancy lands and movables.

The ancestors of the parties held an extensive Zamindari in the Chanda District. After the advent of the British rule, in !!lat region, the ~eyenue authorities commenced settlement op:ratio~s. An inquiry was held by the Settlement Officer in connechon with the lands held by the family of the. parties and statements of some

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SUPREME COURT REPORT~

[1971]3 S.C.R.

members were recorded. Chattarshah s/o Kajur stated th:1t the Zamindari of Dhanora was standing in the name of his cousin joint and Sitaram and that all the members of the family were maintained themselves out of the income from the Zamindari. In his statement Sakru admitted that the rule of primogeniture pre vailed in the family. He stated that Hiru was his eldest brother and Sitaram was the son of Hiru and the Zamindari was recorded in the name of Sit~ram according to Awwal Haqq i.e. rule of primogeniture from ancient times, even though he was senior in age, and that there was no quarrel between him and Sitaram and that he and Sitaram were living jointly and were taking the income from the Zamindari.

The Settlement Officer made an order on November 2, 1867 that the "Zamindari is of ancient tenure and the present Zamindar Sitaram Thakur has proved his right to be Zamindar. Subject to the conditions to be embodied in patent of proprietary right. I ·confer proprietary right in the Zamindari of Dhanora on Sitaram Thakur". The Settlement Officer observed that conferment of proprietary rights was subject to conditions to be embodied in a D patent qf proprietary rights. It may reasonably be inferred that a formal grant was made in favour of Sitaram. The form of the grant which is known as "Chanda Patent" in Aitchison's "Collection of Treaties, Engagements and Sanad<;"· Vol. II, pp. 573-574. Under the Chanda Patent it was declared that the tenure shall be indivisible, and non-transferable (save to E to the nearest male heir the transfer in such case being subject to the app:uval of the Chief Commissioner) the land shall be held by one person, the Zamindar or Zamindarin for the time being and shall be held on conditions of (i) loyalty (ii) good police administratioQ and (iii) improvement and cultivation of the estate. Clauses V, VI, VII of the grant relating to succession to F the Zamindari held under the Patent :

reproduced

is

"V. Subject to the provisions contained in Clause

VI, tbe-order of succession shall be as under:-

On the death of the Zamindar,

the estates shall devolve upon his eldest son. · In default of a son, and when adoption has not taken place, the succes sion should preferably devolve on the nearest male 'kinsman, the widow receiving a suitable riiaintenance. VI. In the event of the first in order of succession being, in the opinion of the local Government, unfit to carry out -the conditions of Clause IV, the Zamindaree shall devolve upon the nearest heir who possesses the required qualification.

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DAYARAM V. DAWALATSHAH (Shah, C.J.)

331

VII. The Zamindar, in the case of gross miscon duct, shall be liable to removal by the local Govern ment; and if such removal be ordered, the succession shall take place as if the Zamindar removed had died.''

Tenure of the grant is entered

in

the Wajibul-arz. The

relevant recitals in the Wajibul-arz are as follows :

Rights and liabilities of Zamindar in relation to Government.

PART-I

(1) Watan

Zamindar's Watan is not partible and it cannot be given to anyone other than quite close (the nearest) male heir. Changes taking place in this way should have sanction of the Governor-in Council. The Zamindari shall be in the name of only one person and the Zamindari has been granted to the Zamindar in pos!lies sion at present on the conditions of this remaining Joyal to the Government, managing his estate properly and improving the cultivation.

(2) Heirs

On the death of Zamindar the estate shall devolve upon his it shall eldest son. If there is no legitimate or adopted son, If there devolve upon a very close (the nearest) male relative. arises a dispute regarding right of inheritance, the Governor-in Council will decide it in accordance, with the custom that is family. unable to abide by the conditions stated in BAB (clause). the Zami11dari shall be granted to a quite close (the nearest) male heir possessing the necessary qualifications.

If the Governor-in-Council finds that the first heir

in

( 3) Dispossessing the Zamindar and forfeiting his rights.

Governor-in-Council may dispossess the Zamindar on account of his behaviour and bad administration. Such disposses sion may be for a few days or permanent. for a few days, the Deputy Commissioner will manage the Zamindari is on behalf cf the Zamindar and if the order of dispossession permanent, the Zamindar shall so to say be deemed to have died and the heir will get the right." The entries in the Wajibul-ar~ substantially reproduce the terms of the Chanda Patent as set out in Vol. II of Aitchison's "Collection of Treaties, Engagements and Sanads".

If it

is

One Major C. B. Lucie Smith made a report relating to the Land Revenue settlement of the Chanda District, Central Pro· vinces, 1869. At pp. 179 to 180 Major Lucie Smith has referred to the Zamindarees of the Chanda District. He has stated under the heed "Zamindarees".

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"The Zamindarees were settled by me; and in order to explain the principles of settlement adopted i( will be n~cessary to touch first upon the questions of tenure and history.

that

The weight of testimony goes to show

the Zamindars are the descendants of men on whom were conferred tracts of country, more or less wild with the object of their being brought under cultivation and order maintained. Naturally, .... while the law was weak and its administrators distant. the Zamindar, as the lord on the spot, exercised large powers but powers apparently never recognised by either the Gond or the Maratta Government. He was undobutedly regarded as a noble, bound to furnish a small contingent when required by his sovereign; but there is nothing to warrant to the supposition that he possessed an absolute right in the. soil; indeed, as far as my experience goes, such a right is foreign to the ideas of the races of this part of India.

The rulers of the day evide'.ltly made and unmade

Zamindars at their pleasure;

.

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.

Under these circumstances it appeared

that the the Country, Chanda Chiefs, though the Nobles of possessed no absolute rights in the soil, and ttiat it rest ed with Government to confer it; and in conferring it, to prescribe such conditions as might be deemed fitting. A scheme of conditions to be embodied in the patent of proprietary right, and in the administration paper of the Zamindarees, was therefore drawn up, based upon the usages actually existing from ancient times; and, with one exception, the proposed arrangements were sanc tioned in their entirety by the Government of India, who directed that they were to be taken as a generai model for those to be applied to the Zamindarees of the Bala ghat district and to the non-feudatory Zamindarees of Chutteesgurh.

The provision not approved as that on the death of a Zamindar, the estate should in default of a son, devolve upon his widow. This code of succession has obtained among the Chanda Chiefs from time imme morial, and is the rule not only among them but among . all olasses of landholders It suits especially the character of the Gond women, ...... . Government, however, after weighing the arguments urged, decided that it was conducive to the interests of

the district.

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DAYARAM v. DAWALATSHAH (Shah, C.J.)

333

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the Zamindarees that the succession should devolve only upon a male member of the hmily, and the clause was altered accordingly." Pratapshah and the 1st defendant Dayaram were descendants of Gangashah and they were related to Gangashah in the same degree. But Pratapshah was the descendant of Bhakta, and B Dayaram was the descendant of Raju. Bhakta was the elder of the two brothers. It is recited in the Wajibul-arz that the Dhanora Zamindari is impartible, that on the death of the holder it devolv· es upon his eldest son and in the absence of a legitimate or an adopted son it devolves upan the nearest male relative. Devolu ti0\11 of the Zamindari closely resembles the traditional _rule of lineal P!i?10£~1)iture. If the holder dies leaving him surviving no son legitimate or adopted, the Zamindari devolves upon a des cendant from the common ancestor of the nearest degree and in the event of there more d11scendants from the common ancestor being in the same degree, the descendant in the senior is preferred. Succession to the Zamindari is subject to the power D of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improve• meint and cultivation of estate. But if the nearest in the line ct succession is not selected the. estate must be given to the nearest heir who has the prescribed qualifications and is a successor to the takes Zamindar. When the Zamindar is removed, succession place as if the Zamindar so removed had died. By the use of the E expression "nearest male relative" the test of propinquity alone may be applied and when there are two or more claimants equally removed from the common ancestor the eldest male member in the senior r .. ost line will be preferred. · In adjudging the plain tiffs claim the Court must determine whether Pratapshah-fathor of the plaintiffs, was the ne.arest male relative of Amarshah.

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On the death of Amarshah there were two male relatives : they were Pratapshah father of the plaintiffs and the 1st defen dant Dayaram. The contest between them had to be adjud$ed in the light of the rules of lineal primogeniture governing an 1mpar tible estate which are well-established :

Succession is governed by the rules which governs succession to partible property subject to such modifica tions only as flow from the character of the impartible estate; the only modification which impartibi!ity suggests in regard to the right of succession is the exis tence of a special rule for the selection of a sing1e heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law; and in the absence of a special custom, the rule of primogenitur" furnishes a ground of preference.

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SUPREME COURT REPORT~

[1971 ]3 s.c.R .

Subramanya Pandya Chokka Talawar v. Siva Subramanya A Pillai ( 1 ).. In determining a. single heir according to the rule of pnmogemture the class of helfS who would be entitled to succeed to the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected.

Counsel for the first defendant submitted that under the terms B

of the Chanda Patent the Zamindari devolves on the death of the holder on the male relative who is the senior most in age, and not on the eldest member in the senior line. There is nothing in the Chanda Patent which supports that contention. By the use of the expression "nearest male relative" the rule of primogeniture is prescribed, it is not intended to confer the. estate upon eldest male relative of the Zamindar.

the c

Counsel also submitted that under the terms of the Chanda Patent and the terms recorded in the Wajib-ul-arz the Governor having the right to determine inheritance and the right to remove a person who is no~ loyal or does not manage the property or does not improve the cultivation or ,who is guilty of bad behaviollr or D the bad admi.nistration, it must be. assumed that the holder of Zamindari has merely a life interest and on the death of the holder, the Governor re-grants the land consistently with the rules of succession according to the law and custom amongst the mem ebers of the family but subject to the dominant purpose of good administration and loyalty to the Government. Counsel for the E first defendant relied upon certain circumstances which he claim- ed established that the interest of the Zamindar was restricted to hi~ life and on his death there was resumption and re-grant of the Zamindari by the Governor. Counsel the Zamindari was impartible and develoved upon the nearest male heir, that the sanction of the Governor was necessary for transfer, F and also for recording inheritance, that loyalty, good manage ment and improvement of cultivation were the conditions for holding the lands and that if the behaviour of the Zamindar was found unsatisfactory or that he was not capable of good adminis that ground, said tration he was liable to be removed. On Counsel, the Government alone was competent to decide a dis pute arising out of inheritance. But the power to take extra- G ordinary steps to protect the interest of the Zamindari by the removed of the holder does not restrict the title of the Zamindar to a mere life interest. The incidents of the tenure are restric tions on the. estate of the Zamindar, but those restrictions do not make him a mere life-tenant.

submitted

that

Under the Chanda Patent the lands of the Zamindari held by B

the family were confirmed in 1867 in favour of Sitaram. On his

(1) J. L. R. 17 Mad. 316 at p. 325.

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DAYARAM v. DAWALATSHAH (Shah, C.J.)

335

death they devolved upon Hanmantrao. There is no evidence that any fresh grant was made. On the death of Hanmantrao the lands devolved npon his son Diwakarrao who died on Septem ber 8, 1932. On the death of Diwakarrao dying without leav ing any male descendant there arose a dispute between Pratap shah and Amarshah. Pratapshah claimed to be the adopted son of Diwakarrao and on that ground entitled to take the Zamindari. An inquiry was held and it was decided that Pratapshah failed to prove the adoption set up by him. On the death of Amarshah again without leaving any male lineal descendant disputes arose. The evidence is not clear as to whether any formal grant was issued in favour of Sitaram. There is no evidence that recogni tion of the heirs of the successive Zamindars was accompanied by the issue of fresh patents or. grants. Succession was merely 1ecognised by the revenue authorities. The argument. that the grant was for life of the grantee is therefore not supported by the turns of the Chanda Patent, nor by the entries in the Wajib-ul arz. nor by the history of the Zamindari. The right to determine inheritance it is true vests in the Governor but the power is exer cisable in accordance with and not in violation of the custom of the family. In determining the heir the Governor is not granting afresh the Zamindari; he merely determines the successor in accordance with the custom of the family. The right of the Governor to remove a holder who is disloyal or does not manage his estate properly or does not improve cultivation or is other wise of "bad behaviour" or guilty of bad administration, does not involve a conditlon that the interest of the Zamindar is only for his life. When a holder of the Zamindari is removed, the Gover nor is bound to hand over the Zamindari to the next heir in the crder of succession if the Zamindar removed had died and the heir will get the right.

Counsel, then contended that in any event the decision of the Governor in 1950 declaring Dayaram to be the successor on the death of Amarshah was binding and conclusive and. could not be reopened. Counsel urged that Pratapshah and the 1st defen dant Dayaram were related to the common ancestor in the same degree, and it was open to the Govurnor to select one of the two the same members of the family related to the last holder degree, even though the person selected did not oolong the. to senior-most line. But if succession to the Zamindari is govem ed by the rule of lineal primogeniture, selection of a member of a branch in preference to a member of the senior branch would be plainly illegal.

in

Again, the evidence does not warrant the view

the Governor purported to pass any order in pursuan17 of the pro~­ sioM of the Chanda Patent or the rules of succession rewrded m

that

336

SUPREME COURT REPORTS

. [1971 ]3 s.c.R.

the Wajib-ul-arz. The order of the Governor is in the form of a memorandum address~ to the Deputy Commissioner, Chanda, dated November 9, 1951 and it states that :

'"Government are pleased to recognise Shri Daya the ram Bapu son of Ballarshah Bapu Raj Gond as Zamindar of Dhanora Zamindari in the Carchiroli tahsil of the Chanda District till the date of vesting of the Zamindari in the State Government".

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B

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There is no evidence that the Governor made any enquiry to determine the successor of Amarshah. An order by the Gover- nor purporting to exercise powers under the Chanda Patent con templates a quasi-judicial inquiry. The order does not show c that any inquiry was made for determining the rights of the c,rin testing claimants or that any notice was issued to them or that they were heard before the Governor decided the issue. There is nothing in the pleadings in that behalf. The Governor is invested with quasi-judicial power, and if there be a dispute, the dispute must be decided after holding an inquiry, and the deci sion must be reached consistantly with the rules of natural justice D and in accordance with the custom of the family. A bald state ment that the "Government are pleased to recognise Dayaram Bapu son cf Ballarsjlah Bapu as the Zamindar of Dhanora Zamindari" does not di~close the reason for rejecting the claim of Pratapshah who according to the custom of the family was "the nearest male relative". There is no evidence on the record that · E the Governor was even aware that there were other claim9.!lts and if he was aware what their claims were and that the Governor had considered those claims before recognizing the claim of Dayaram. In the absence of any evidence that the order was made by the Governor in exercise of the power conferred by the Chanda Patent it is unnecessary to consider whether any order made by r the Governor is iin exercise or the powers Of the patent e:itcludes the jurisdiction of the civil court. The decision of Governor was apparently reached without any inquiry and was plainly. co~trary to the rules of. Hindu Law and the custom of the family m the light of which alone the Governor was by the express mandate competent to adjudicate the claim.

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to It is true that there were 'mutation .proceedings in regard· the Zamindari before the N aib Tahsildar Garchiroli Tahsil. The Naib Tahsilda~ by his order dated May 9, 1951 held that the dis pute relating to the mutation was raised by Pratapshah, that Amarshah had died issueless, that the genealogical tree set up by Daulatshah son of Pratapshah was incorrect being unsupported H by reliable evidence, that copies of settlement of 1867 were mere statements of interested persons, that the genealogical tree filed by Dayaram resembled the genealogical tree filed by Pratapshah

DAYARAM v. DAWALATSHAH (Shah, C.J.)

337

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and was held to be genuine, that Amarshah had clearly admitted in his statement that Dayaram was entitled to succeed the Zamindari after him and that Dayaram was the nearest male kinsman to the deceased Amarshah. This decision of the Naib Tahsildar proceeded upon a genealogy produced by Dayaram which on the findings of the Trial Court as well as the High Col,\tt in this case is incorrect. The decision of . .the Naib Tahsildar in a mutation proceeding even as a piece of evidence has. little evidentiary value when it is founded on a material piece of evi dence which was untrue. The proceedings were carried in appeal before the Deputy Commissioner. The Deputy Commissioner confirmed the order by his decision dated August 8, 1951. He also accepted the genealogy set up by Dayaram and held that there were no other nearer male descendants in the branch and that Pratapshah was one degr>~e more removed 1than Dayaram. In view of the infirmity atta'chin~ to the genealogy relied upon by the Revenue Officer that decision has also little evidentiary v•lue.

The orders passed by the Governor and the revenue authori ties do not exclude the jurisdiction of the civil c;ourt to decide the In that view we agree with the High Court question of kinship. that the Zamindari originally confirmed in favour of Sitaram must according to the tenure as recorded in the Wajib-ul-arz devolve upon the first plaintiff Dawalatshah to the exclusion of the first defendant Dayaram.

The right in Malguzari land was since the,death of Amarshah extinguished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951. The Malguzarl lands are by the devise contained in the will dated December 3, 19SO given to the plaintiffs. Compensation in res pect of the lands would therefore belong to the plaintiffs. But it 1s urged that notwithstanding the devise, because of the order of the Claim Officer under Section 14 of Act 1 of 19Sl, the plain· tiffs were not entitled to agitate the question of heirship. It is enacted by s. 3 of the Act that on and from a date to be specified by a notification by the State Government in .that behalf, all pro prietary rights·in an estate, mahal, alienated viJlage or alienated land as .the case may be, in the area specified in the notification, ve,sting m a propr~etor of such es!ate, mahal, alienated village, a~1enated land, or m a person havmg interest in such proprietary nght through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances. Section 4 sets out of the ccinSe quences o~ the. ves!ing of the land in the ~ovemment by virtue of the nottficatton issued under s. 3. Section 8 provides for assessment of compensation payable to every proprietor, who 'is

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[1971 J3 S.C.R.

divested of proprietary rights. The compensation is to be deter mined in accordance with the rules contained in Sch. I. Section 12 ·requires that a proprietor who is divested of proprietary rights by virtue of a notification issued under s. 3 shall, within such period as may be prescribed, file a statement of claim in the pres cribed form and specify therein. Section 13 authorises the Compensation Officer to determine the amount of compensation. Section 14 provides :

the particulars mentioned

" ( 1 ) If during the course of an enquiry by the Com pensation Officer, any question is raised regard ing the proprietary any property right divested under Sec. 3 and such question has not already been determined by a court of compe tent jurisdiction. the Compensation Officer shall proceed to enquire summarily into the merits of such question and pass such orders as he thinks fit."

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( 2) The order of the Compensation Officer under to any sub-section ( 1) shall not be subject appeal or revision, but any party may, within two months fo•m the date of such order. insti tute a suit in the civil court to have the order set aside, and the decision of such court shall be binding on the Compensation Officer, but sub ject to the result of such suit, if any, the Com pensation Officer shall be final and conclusive".

Counsel for Dayaram urged that the Compensation Officer had decided by his Order dated August 30, 1951 that compensation in respect of the M alguzari land was payable to Dayaram and since no suit was filed by the plaintiffs for setting aside that deci final and sion. the order of the Compensation Officer became conclusive and could :not be reopened in a suit filed more than six years after that date. We are unable to accept that conten tion. The Compensation Officer is entitled to decide a question the property divested only regarding the proprietary right in under s. 3. He is not concerned with determination of any ques tion relating to a private dispute between two or more persons who make competing clailllS in the matter of compensation, rely ing upon their respective titles. A question regarding the pro prietary rights may in ordinary course be raised only in a claim against the State, and if that claim be decided against the claim ant in a summary inquiry held by the Compensation Officer, a suit to set aside the decision must be filed within two months from that date and if no suit is filed, the order becomes final and conclusive. S. 14 was enacted with a view to put an end to dis putes with regard to the claims to proprietary rights which by

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DAYARAM v. DAWALATSHAH (Shah, C.J.)

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virtue of the notilication issued under s. 3 are extinguished. It is not intended by an Order under section 14 to determine com plicated questions of title by the adjudication of a revenue officer in a summary inquiry without even a right of appeal and to make his adjudication conclusive unless a suit be two months from the date of the order. That is also clear from the terms of s. 35(7) of Act 1 of 1951 which provides:

filed within

"The payment of compensation under this Act to the creditors of a proprietor or to the proprietor in accordance with the prescribed manner shall be a full discharge of the State Government from all liability to pay compensation for the divesting of proprietary rights, but shall not prejudice any rights in respect of the said rights to which any other person may be entitl ed by due process of law to enforce against the person to whom compensation has been paid as aforesaid".

The Civil Court is declared competent to determine disputed questions with regard to title to compensation. We agree ·with the the High Court thats. 14 of Act 1 of 1951 does not invest Compensation Officer with jurisdiction to determine competing claims of persons claiming proprietary rights the property vesting in the Government by the operation of s. 3 of the Act. Section 14 is intended to determine only the proprietary rights in the land qua the State.

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Finally it was urge,d that the Trial Court granted Rs. 10,0001- as mesne profits, and even though the High Court disallowe<J,the claim of the plaintiffs with regard to certain items no reduction was made in the total amount of mesne profits awarded corres ponding to the claim disallowed. Counsel for the plaintiffs con cedes that the High Court was in error in not reducing the amount of mesne profits awardable to the plaintiffs. He agrees that mstead of the figure of Rs. 10,000/- awardable to the plaintiff Rs. 8,000/- should be substituted. We modify the mesne pro fits awarded. Subject to this modification, this appeal fails and is dismissed with costs.

K.B.N.

Appeal dismissed.

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