Rajasthan High Court - Jaipur
Madan Singh vs Board Of Revenue, Ajmer & Ors. on 14 December, 2000
Equivalent citations: 2001(4)WLC760, 2001(3)WLN548
ORDER Balia, J.
(1). Heard learned counsel for the parties.
(2). The petitioner challenges the order passed by the Board of Revenue Ajmer, dt. 26.12.1996 (Annexure-G) in Appeal No. 69/96/Ceiling/Nagaur affirming the order passed by the Additional Collector, Nagaur dt. 18.3.96 (Annexure-5).
(3). The review against the order of Board of Revenue was also dismissed on 1.10.97 at the stage of admission which is also under challenge.
(4). In the case of petitioner initially Ceiling Authority under Chapter III-B of the Rajasthan Tenancy Act found that the petitioner docs not hold land in surplus of the ceiling area and dropped the proceedings. However, the proceedings u/s. 15(2) of Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 were initiated for the purpose of determining ceiling area in the case of petitioner under Chapter III-B of the Rajas than Tenancy Act by order dt. 20th October, 1982.
(5). Apart from other grounds it was claimed by the petitioner that father of petitioner had died in 1945 during the life time of his grand-father. At the time of death of his grand-father Jait Singh, his mother and widow of pre-deceased son of Jail Singh was alive and she was entitled to a share in the property held by Jait Singh. Of course the petitioner alleged that the property in question was ancestral. However, Additional Collector rejected this claim by holding that since Smt. Rasal Kanwar had been given 43.10 bighas of land for her maintenance, she is not entitled to any further share in the properly, notwithstanding on the death of Jait Singh, she has also an equal share. Thus by not taking into account the land which would pass to Smt. Rasal Kanwar in succession on death of Jait Singh in 1957, the entire land was held to be of the petitioner on succession and on that basis 33.4 bighas of land was held to be in excess of the ceiling limit in the hands of the petitioner. The claim of Sajjan Singh and Ratan Singh to be members of the family as on the relevant date 1.4.66.
(6). The Board of Revenue relying on its earlier decision and also a decision of High Court particulars of which have not been disclosed, holding that Jagir land cannot be treated as ancestral land held that in these circumstances provisions of Hindu Succession Act would not apply and accordingly Smt, Rasal Kanwar, who had been given 43 bighas of land by Jait Singh cannot claim any further rights. The review has been rejected inter alia on the ground that no new grounds have been raised.
(7). The perusal of three orders disclose an apparent ignorance of the law on succession by Ceiling Authorities. The succession opens on the death of an incumbent and takes place immediately on the death of the holder of the property. The interest of the deceased in the property devolves immediately in accordance with personal law of succession. The holdings of land in any capacity by the deceased Jait Singh will not make any difference on the right of legal heirs to succeed the property as heir of deceased on intestate succession cannot be denied on the ground that he had been given any property by way of maintenance. Right of maintenance is independent of right to succeed. Smt. Rasal Kanwar widow of Khangar Singh was one of the Class I female heir on the death of Jait Singh as widow of predeceased son of Jait Singh. It is also not in dispute that Jail Singh had died in 1957 after commencement of Hindu Succession Act, 1956, The Hindu Succession Act recognises widow of predeceased son amongst Class their of any male Hindu dying intestate. It is true before commencement of Hindu Succession Act, a female was not an heir to a male Hindu in the presence of a male heir. In some circumstances she could acquire a limited estate in the properly with the right of reversioners to ultimately succeed to such property on the death of such limited owner. Hindu Succession Act made a deviation. By enacting Sec. 14 it enlarged the existing limited interests of the females to full ownership, except where such limited interest was created under an agreement or by a testamentary instrument. So also it deviated from the Shastric Hindu Law in recognising females as heirs of deceased having equal share with males, including right to succeed to the undivided share of deceased male Hindu in the co-parcenery to a class of female heirs.
(8). It has been envisaged under Section 6 of the Hindu Succession Act that when a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshara co-parcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parecnery and not in accordance with the Act, provided that, if the deceased had left him surviving a female relative specified in Class 1 of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitak-
shara co-parcenery properly shall devolve by testamontary or interstate succession, as the case may be, under this Act and not by survivorship.
(9). In clause I of Schedule the name of widow of pre-deceased son appears; Thus in the presence of Rasal Devi on the death of Jail Singh inteslate, his interest in the co-parcenery property shall not be governed by principles of Mitakshara. But under Sec. 6 if the properly is held to be ancestrarSmt. Rasal Devi will be entitled to succeed in her own right as one of the heirs to the undivided interest of Jail Singh, which he is deemed to hold at the time of his death in co-parcenary property and such share shall be determined as notionally falling to his share had partition taken place immediately before his death. This right to succeed on death of Jait Singh cannot be affected because during lifetime of Jail Singh she was given contain land in lieu of her right to maintenance against the property of co-parcenery.
(10). If the property is not ancestral as held by the Board of Revenue the succession would be governed directly under Section 8 of Ihe Hindu Succession Acl which says that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter firstly, upon the heirs, being the relatives specified in Class I of the Schedule.
(11). It may be noticed that while under Section 6 only share in the co-parcenery properly which could be notionally allotted to the male Hindu as if the partition had taken place immediately before his death is available for succession to the relative specified in Class I of the Schedule.
(12). Under Section 8 entire properly held by such deceased is open to succession and will devolve to relatives specified in Class I of the Schedule, at the lime of his death irrespective of other properly held by them at the time of death. Section 14 of the Hindu Succession Act which enlarges the existing limited estate of the Hindu females to full estate and declares Ihe property to be their absolute property. Rights of Hindu female to claim right to succession when it opens is no way truncated merely on the ground that she is already in possession of some property granted in lieu of maintenance or her existing estate has been enlarged.
(13). The maintenance and succession are two independent claims and cannot be confused with each other. No law divests the maintenance holder from his right to succeed as the heir of a person against whom and whose state he or she also has right to claim maintenance. Such divesting could only be done by recourse of testamentary instrument.
(14). This clear position of law has been ignored by all the ceiling authorities in considering the claim that widow of Khangar Singh and mother of petitioner had succeeded in her own right to the property held by Jait Singh at the lime of his death and which is held to have devolved on sons of Khangar Singh only. Thus on such erroneous assumption the property held by Smt. Rasal Kanwar has been clubbed with the property held by the petitioner. This is error apparent in the orders passed by the Ceiling Authorities under challenge.
(15). It is not in dispute that if the share of Smt. Rasal Kanwar is to be taken independent of property held by Madan Singh, there is no surplus land in the hands of Madan Singh.
(16). Accordingly, this petition succeeds. The impugned orders Anncxure/5 Dt. 18.3.96, Annexure/6 dt. 26.12.96 and Annexure/7 dt. 1.10.97 are quashed.
(17). There shall be no order as to costs.