Madhya Pradesh High Court
Nandram & Ors. vs Mahila Ramkali Devi & Ors. on 10 May, 2018
1 S.A.No.310/1997
High Court of Madhya Pradesh
Bench at Gwalior
SINGLE BENCH
: (Vivek Agarwal, J.)
Second Appeal No.310/1997
Nandram and others
Vs.
Mahila Ramkali Devi and others
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Shri R.D. Jain, learned senior counsel with Shri
Sameer Kumar Shrivastava, learned counsel for
the appellants.
Shri N.K. Gupta, learned senior counsel with Shri
Santosh Agrawal, learned counsel for L.Rs. of
respondent No.3.
Shri B.B. Shukla, learned counsel for L.Rs. Of
respondent No.2
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JUDGMENT
(10/05/2018) This Second Appeal has been filed under Section 100 of CPC by the defendants/appellants being aggrieved by the judgment and decree dt.07.04.1997 passed in Civil Appeal No.27A/1995 by the court of Second Additional District Judge, Gwalior confirming the judgment and decree dt.17.02.1995 passed by the court of Sixth Civil Judge Class 2, Gwalior in Civil Suit No.10A of 1986.
2. Though the mandate of this court is limited to decide substantial question of law No.2 i.e. "Whether the Ramkali is entitled to succeed the suit property left behind by Ayodhyabai under Section 164 of M.P.Land Revenue Code ?" and two additional questions of law framed by this court on 17.08.2015 after remand of the matter from the Hon'ble Supreme Court but to appreciate the facts in the correct perspective, it is necessary that facts in brief are reproduced.
3. A suit was filed by Ramkali Devi Saxena wife of Baijnath Saxena claiming that Ajudhya Bai had executed 2 S.A.No.310/1997 a Will on 21.01.1961 in favour of the plaintiff in relation to the land contained in Survey No.203 measuring 5 bigha 3 biswa, survey No.204 measuring 2 bigha 16 biswa, survey No.296 measuring 3 bigha 16 biswa, survey No.299 measuring 1 bigha, survey No.300 measuring 1 biswa, survey No.301 measuring 4 biswa and survey No.302 measuring 1 bigha 5 biswa, thus, in all parcel of land measuring 16 bigha 5 biswa at village Kota Lashkar, Gwalior.
4. Ramkali Bai, plaintiff submitted that as per the family tree she being the niece of Ajudhya Bai, who died intestate at Vrindavan (U.P.) on 22.09.1961, is the sole legal heir of Ajudhya Bai and on the basis of the will left by Ajudhya Bai, she has become owner and title holder of the land described above which will be referred to as "suit land".
5. Following pedigree is not disputed :-
Hardayal
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Raghuvar Dayal Mahadev Prasad (wife Sumitra) (Wife Janki Bai) Radha Kishan (son) Baijnath Prasad (son) (Ajudhya Bai wife) (Ramkali wife)
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Rajendra Dinesh Satish Sanjay
6. Trial court had framed as many as 23 issues and after framing of such issues had decided the issues like that of jurisdiction, joinder and mis-joinder, cause of action, payment of court fees etc. in affirmative so also issue of limitation as to whether plaintiff Ramkali Devi was entitled to challenge the transaction dt.19.12.1950 after 12 years of such transaction and held that the suit is within limitation as it does not suffer from any misjoinder of parties. Issue in regard to date of death of Ajudhya Bai 3 S.A.No.310/1997 as 22.06.1961 was answered in affirmative. Issue No.9 as to the will of Ajudhya Bai was superseded but while deciding Issue No.10, it has been held that the plaintiff is direct niece of Ajudhya Bai and on that account also she is the sole legal heir of Ajudhya Bai.
7. Learned trial court held that defendants could not prove their possession over the suit land for over a period of 20 years and further declared the sale deeds allegedly executed on 19.12.1950 in favour of defendant No.3 tobe fabricated. It also recorded a finding that on the basis of the probate obtained by the plaintiff she attained rights over the suit property and she is entitled to get mesne profit @ Rs.300/- per year. It also recorded a finding that Ajudhya Bai was a child widow and it's impact will be that defendants will not attain any right under the M.P.Land Revenue Code.
8. Learned trial court noted that issue in regard to suit being hit by the provisions of Section 168 (4) and Section 257 of the Madhya Pradesh Land Revenue Code 1959 (hereinafter shall be referred to as the 'MPLRC') was already decided on 20.02.1980.
9. Vide order dt.20.02.1980, learned Seventh Civil Judge Class 2 Gwalior passed in Civil Suit No.299A/1962 noted the contention of the plaintiff that plaintiff has filed a suit against the defendants for declaration of title and further to declare the sale deeds executed in favour of the plaintiff to be null and void in relation to the plaintiff and for recovery of possession. It was the contention of the plaintiff that deceased Ajudhya Bai was a child widow and therefore defendants even if proved themselves to be sub tenants will not acquire any right against the plaintiff. Defendants had, in fact, raised an objection that if Ajudhya Bai was a child widow, then in terms of the provisions contained in Section 168 (4) and Section 257 of MPLRC, jurisdiction to hear the matter will be exclusively in the domain of a revenue court and case will not be maintainable in a civil court.4 S.A.No.310/1997
10. Trial court recorded a finding that since relief of declaration of title has been sought in the suit, that can be granted only by a civil court and not by a revenue court. Similarly, it has also recorded a finding that in terms of the provisions contained in Section 168 (4) of MPLRC, proceedings are drawn for return of possession on the completion of the lease period but it has held that in the present suit prayer is not that since lease has been terminated or its tenure is over, therefore, possession be returned but possession has been sought on the ground that the document, on the basis of which title is alleged to have been transferred in favour of defendant, is a forged and fabricated document alongwith prayer for declaration of title and return of possession. That being a composite prayer, it was not hit by the provisions of Section 168 (4) and Section 257 of MPLRC.
11. It has also come on record that Misc. Petition No.1378/1991 was filed before the High Court seeking impleadment as a party and said application was allowed with direction to the trial court to permit the petitioners namely Dinesh, Satish, Sanjay and Rajendra, all sons of Baijnath Prasad Saxena to be impleaded as party to the suit under Order 1 Rule 10 of CPC. High Court was also pleased to direct the trial court to allow the petitioners to prove the fact of relationship with deceased Ajudhya Bai.
It has also come on record that Misc. Petition was allowed against rejection of the amendment proposed by the plaintiff after 22 years vide order dt.29.08.1991 on the ground that such amendment filed was consequential and therefore trial court was directed to consider the application afresh and pass orders in accordance with law. Trial court had also recorded a finding that plaintiff gets title in the suit property on the basis of the probate and held sons of the plaintiff to be the owner of the suit property.
12. It is the contention of the appellants that the defendants/appellants Nandram and Kashiram raised an 5 S.A.No.310/1997 objection that the land was purchased by Rukmani Bai after obtaining permission from the Collector and the suit for cancellation of sale deed could have been filed only under Section 377 of "Kanoonmal" and not before the Civil Court. It was also alleged that the suit was barred by limitation and was not maintainable without praying for the relief of cancellation of sale deed. The so called will in favour of Ajudhya Bai was contrary to the MPLRC and the same was not enforceable. It was also submitted that since Ajudhya Bai was not a child widow but became widow at the age of 26 years, therefore, the courts below acted illegally in ignoring the provisions of law and decreeing the suit without there being any prayer for relief of cancellation of sale deed. It is submitted that findings of the court below that since Ajudhya Bai had not executed the sale deed, therefore, there was no need to have prayed for cancellation of sale deed is perverse. It is further submitted that trial court did not take into consideration Ex.D/2 and D/2-A while holding the sale deed to be forged and since Ajudhya Bai died prior to amendment in MPLRC in December 1961, therefore, the amended provisions will not apply and as per the amended law property could not have been bequeathed by any Bhumiswami through a will. This will could not be acted upon in view of Section 165 of MPLRC before its amendment in December 1961. It is also submitted that as property could not have been bequeathed, probate will not have any effect or impact and the issue of limitation was not considered by the courts below properly. It is also submitted that courts below have failed to take into consideration the provisions of Section 169 of MPLRC dealing with the rights of occupancy tenant accrued to defendants and without appreciating such provisions decreed the suit. It is also submitted that possession of the suit property could not have been obtained by process of civil court in view of provisions contained in Section 168 (4) read with Section 257 of the MPLRC.
6 S.A.No.310/199713. Though several issues have been raised by the learned counsel for the appellants but Hon'ble Supreme Court vide its judgment dt.16th May 2015 passed in Civil Appeal No.2366/2010 has put a seal of approval on the following substantial questions of law :-
"(1) Whether the suit filed by the plaintiff on 29.4.64 challenging the registered sale-deeds executed on 19.12.1950 can be said to be within limitation in view of Section 3 of the Transfer of Property Act ?
(3) Whether the findings arrived at by the two courts below that the documents Exs.D/2 and D/2-A are forged, is only based on the expert opinion and not supported by any legal evidence on record ?"
14. In view of such facts, plea of the appellants in regard to setting aside declaration of sale deeds being forged, issue of limitation and also the fact that civil court had no jurisdiction in view of the provisions of Section 168 (4) read with Section 257 of MPLRC looses its ground and need not be considered any further to set aside the judgment and decree in regard to the property left behind by Ajudhya Bai.
15. In this backdrop, two issues framed by the predecessor of this court on 17.8.2015, namely ;
(I) Whether the claim of the successors to succeed in the suit as successors of late Smt. Ayodhyabai are maintainable ?
(II)Whether such claim is within limitation ? though can not be considered to be substantial questions of law, yet the Hon'ble Supreme Court has allowed the amendment of the plaint by Ramkali to make appellants No.2 to 5 before Hon'ble Supreme Court i.e. respondents No.2,3,4 and 5 in this Second Appeal so to fall under Clause XVII of the M.P. Land Revenue Code, which was rejected by the learned Single Judge of the High Court. In view of the fact that such amendment has been allowed 7 S.A.No.310/1997 by the Hon'ble Supreme Court, first issue framed by the predecessor of this court on 17.8.2015 is no more res integra.
16. Once this issue No.23 has been decided by the trial court and approved by the first appellate court, then such two concurrent findings of fact can not be permitted to be reopened at this stage when no objection was raised by the appellant to the substantial questions of law as were framed on 18.02.2005. Similarly touching to second issue as another additional substantial question of law framed on 17.8.2015 as to whether claim of the successors is within limitation will amount to review the judgment of the Hon'ble Supreme Court which has already approved the finding that suit was within limitation. Even otherwise, it is settled principle of law that if an amendment is allowed and such amendment is not challenged, then that will relate back to the date of the suit, as has been held by the Hon'ble Supreme Court in the case of Vasant Balu Patil and others Vs. Mohan Hirachand Shah and others as reported in (2016) 1 SCC 530. Therefore, even this issue as has been framed by the predecessor of this court on 22.7.2015 does not call for any adjudication. Therefore, this court will concentrate only on Substantial question of law No.2 as mentioned above, which is to be decided afresh after taking into consideration the reliefs sought for by the plaintiffs/ respondents by amending the plaint.
17. An application under Order I Rule 10 read with Section 151 of CPC was filed on 26.4.1986 mentioning that Dinesh, Satish, Sanjay and Rajendra are sons of Baijnath and they being close relatives of Ajudhya Bai, sons of brother of husband of Ajudhya Bai namely Radhakishan, were entitled to succeed to the suit property. This application was allowed by the Hon'ble Supreme Court holding that High Court was in error in rejecting the application for amendment raising an alternate plea that if the will is not held valid, yet the 8 S.A.No.310/1997 plaintiff's sons Rajendra, Dinesh, Satish and Sanjay, who at present are minors, are near relations of Ajudhya Bai and this suit be treated to represent their interest on the basis of their ownership. The sons live in care of plaintiff, meaning thereby in every condition there is no right of defendants competing with plaintiffs. And the plaintiff herself and on behalf of her sons is entitled to get possession of the suit land.
18. Once this amendment has been allowed by the Hon'ble Supreme Court, then impact of such amendment is to be examined in the light of the provisions of Section 164 of the MPLRC. Section 164 of the MPLRC before it was amended by the Amending Act No.38 of 1961 dt.2.12.1961 reads as under :-
"164. Devolution.-(1) Notwithstanding any law, custom or usage to the contrary, the interest of a Bhumi-swami shall on his death devolve in accordance with the order of succession given below:-
Class I.-Son-predeceased son's son, son of a predeceased son's predeceased son, widow or husband as the case may be, predeceased son's widow, widow of a predeceased son's predeceased son. Explanation I.-A grandson whose father is dead and great grandson whose father and grandfather are both dead, shall inherit equally with the son. Explanation II - The widow of the deceased or if there are more widows than one, all his widows together shall take the same share as that of a son. The widow of a predeceased son shall inherit in the manner as a on if there no son surviving of such predeceased son, and in the like manner as a son's son, if there is surviving a son or a son's son of such predeceased son. The same rule shall apply mutatis mutandies to the widow of a predeceased son of a predeceased son.
Class II-Daughter.
Class III-Father.
Class IV-Mother (if she is a widow). Class V-Step-mother (if she is a widow). Class VI-Brother of the whole blood. Class VII-Brother of the half blood (being 9 S.A.No.310/1997 a son of the same father).
Class VIII-Daughter's son. Class IX-Brother's son.
Class X-Brother's son's son. Class XI-Father's father.
Class XII-Father's mother (if she is a widow).
Class XIII-Sister.
Class XIV- Sister's son.
Class XV- Paternal uncle (father's brother) Class XVI-Paternal uncle's son (father's brother's son).
Class XVII-Paternal uncle's son (father's brother's son) Class XVIII-Father's father's father. Class XIX-Father's father's mother (if she is a widow).
Class XX-Father's paternal uncle.
Class XXI- Father's paternal uncle's son. Class XXII-Father's paternal uncle's son's son.
Explanation.- If there are more heirs than one of the same class, other than class I, who shall inherit per stripes, all shall share equally.
(2) Notwithstanding anything contained in sub-section (1) where the interest of a Bhumi-swami is inherited by a female:
(a) from her father or mother, such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in sub-section (1), devolve upon the nearest surviving heir of her father as ascertained in accordance with the provisions of sub-section (1);
(b) from her husband or her father-in-
law such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in sub-section (1), devolve upon the nearest surviving heir of her husband as ascertained in accordance with the provisions of sub-section (1);
(c) as a widow, mother, father's mother or father's father's mother, such interest shall, on her remarriage, devolve upon the nearest surviving her of the last male holder of such interest as ascertained in accordance with the 10 S.A.No.310/1997 provisions of sub-section (1).
(3) Where the total area of land in possession of a Bhumi-swami together with the land which he is entitled to inherit under this section exceeds the prescribed ceiling limit, so much of the inheritable land as makes the total exceed the prescribed ceiling limit shall, after selection by the Bhumi-swami and demarcation in the prescribed manner, devolve upon the other heirs of the propositus as ascertained in accordance with the provisions of sub-section (1)."
19. As has been noted by the Hon'ble Supreme Court, Full Bench of this court in the case of Nahar Hirasingh and others Vs. Dukalhin and others as reported in AIR 1974 MP 141 held that provisions for succession of Bhumiswami rights under Section 164 of the Madhya Pradesh Land Revenue Code, 1959 as it stood before its amendment in 1961, was a valid provision or it was ultra vires in view of Section 4 of the Hindu Succession Act, 1956. Section 4 of Hindu Succession Act, 1956 provides for overriding effect of Act and reads as under :-
"4. Overriding effect of Act -
(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."11 S.A.No.310/1997
20. Full Bench of this court noted that since the Madhya Bharat Land Revenue Code 1954 as also the Madhya Pradesh Land Revenue Code 1959 had received ascent of the President and therefore by virtue of Sub-clause (2) of Article 254 of the Constitution that law would prevail in the State of Madhya Pradesh as against any provisions of the Hindu Succession Act, 1956. In fact, similar controversy was again visited by the Hon'ble Supreme Court when challenge was put to vires of Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 vis-a-vis provisions contained in the Arbitration and Conciliation Act 1996 and Hon'ble Supreme Court was pleased to hold in the case of M.P.Rural Road Development Authority and another Vs. M/s L.G. Chaudhary Engineers & Contractors as reported in 2012 (1) M.P.H.T. 338 (SC) that the argument therefore, that M.P. Act is repugnant to Central Act of Arbitration and Conciliation Act, 1996, and so is void under Article 254 of the Constitution, cannot be accepted. When the M.P. Act, 1983 was made, the previous Arbitration Act, 1940, a Central Law, was in the field. President's assent was obtained for the M.P. Act, 1983. The requirement of Article 254 (2) of the Constitution was satisfied. Therefore, M.P. Act of 1983, prevailed in the State of Madhya Pradesh. Thereafter, Arbitration and Conciliation Act, 1996 was enacted by the Parliament, repealing the earlier law of arbitration of 1940. It has already been seen that inconsistent provisions of M.P. Act, 1983 are saved under Section 2 (4) and also Section 2 (5) of the Arbitration and Conciliation Act, 1996. Therefore, there can not be any repugnancy.
21. Thus, it is apparent that the provisions of Section 164 of MPLRC were valid provisions and therefore what is to be examined is that whether by virtue of amendment in the plaint making an alternate plea that even if will executed by Ajudhya Bai in favour of Ramkali is held to be not in terms of provision of Section 164 of MPLRC as it 12 S.A.No.310/1997 was executed prior to amendment in Section 164 of MPLRC on 8.12.1961, then whether the plaintiffs were entitled to the title and possession of the suit property on the basis of they being near relatives of Ajudhya Bai falling under Class XVII below Section 164 of the MPLRC.
22. In this regard finding of the learned trial court that plaintiffs namely Dinesh, Satish, Sanjay and Rajendra being paternal uncle's will come under Clause XVII as defined under Explanation II below the unamended provisions of sub section (1) of Section 164, the interest in the property shall devolve upon the nearest survivor of her husband, as ascertained in accordance with the provisions of sub section (1) of Section 164 of MPLRC. Therefore, this court is of the opinion that second substantial question of law namely whether Ramkali is entitled to succeed the suit property left behind by Ajudhya Bai under Section 164 of the MPLRC is to be answered in positive, inasmuch as Ramkali after amendment in the plaint became representative of the interest of the respondents No.2,3,4 and 5 and in that capacity respondents No.2,3,4 and 5 being close relatives of Ajudhya Bai i.e. paternal uncle's sons, as given in Clause XVII, became entitled to succeed to the estate of Ajudhya Bai, which was received by her admittedly from her husband as is apparent from pedigree reproduced above. Thus, when this second substantial question of law, namely; "Whether the Ramkali is entitled to succeed the suit property left behind by Ayodhyabai under Section 164 of M.P.Land Revenue Code ?" is answered in favour of the plaintiffs, then the natural consequence is that this appeal has to fail and is dismissed.
(Vivek Agarwal) Judge SP Digitally signed by SANJEEV KUMAR PHANSE Date: 2018.05.11 16:55:23 +05'30'