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CIVIL 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 of 1959 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 respondents. The Judgment of the Court was delivered by Shah, C.J. Dawalatshah and Ranwirshah-sons of Pratapshah- instituted an action in the Court of the Additional District Judge Chanda, for a decree for possession 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 compensation in respect of certain lands received by the defendants from the- Government of Madhya Pradesh and for an order declaring their right to receive the balance of compensation remaining to be paid. The plaintiffs relied upon the following genealogy Gangashah Niru Bhakta Sakru Kajur Raju Thakur Thakur Thakur ThakurThakur Sitaram Tanba Chatturshah Thakur Thakur (dead) Nilkanthshah Pratapshah Dawaltshah Ranwirshab Gulab Lallshah (Platff (Platff. Shah dead) No. 1) No. 2) (dead) Hanmantrao Amarshah Basu Chandarshah Karanshah Niranshah Died Dec. 9, (dead) (dead) 1950) Diwakarrao (Died Sept., 8,1932) Ballarshah Karansbah Dayaram Indersbah (Deft. dt. No. 1) (Deft. No. 2) Govinda Budha Rama Laxman (dead,) The plaintiffs claimed that the property in suit originally belonged to Gangashah. Gangashah had five sons: Hiru, Bhakta, Sakru, Kajur and Raju. The branches of Sakru and Kajur became extinct a long time ago. The branch of Hiru (who was 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, devolving by the rule of primogeniture; that the Zamindari on that account devolved 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 including Malguzari lands devolved upon them under a will 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.

"V. Subject to the provisions contained in Clause VI, the 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 succession should preferably devolve on the nearest male kinsman, the widow receiving a suitable Maintenance. 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.

VII. The Zamindar, in the case of gross misconduct, shall be liable to removal by the local Government; 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 PART-1 Rights and liabilities of Zamindar in relation to Government.

(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 possession at present on the conditions of this remaining loyal to the Government, managing his estate properly and improving the cultivation. (2) Heirs On the death of Zamindar the estate shall devolve upon his eldest son. If there is no legitimate or adopted son, it shall devolve upon a very close (the nearest) male relative. If there arises a dispute regarding right of inheritance, the Governor-in Council will decide it in accordance, with the custom in that family. If the Governor-in-Council finds that the first heir is unable to abide by the conditions stated in BAB (clause). the Zamindari shall be granted to a quite close (the nearest) male heir possessing the necessary qualifications.

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 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 devolves upon his eldest son and in the absence of a legitimate or an adopted son it devolves upon the nearest male relative. Devolution of, the Zamindari closely resembles the traditional rule of liberal primogeniture. If the holder dies leaving him surviving no son legitimate or adopted, the Zamindari devolves upon a descendant from the common ancestor of the nearest degree and in the event of there more, descendants from the common ancestor being in the same degree, the descendant in the senior line is preferred. Succession to the Zamindari is subject to the power of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improvement and cultivation of estate. But if the nearest in the line of succession is not selected the estate must be given to the nearest heir who has the prescribed qualifications and is a successor to the Zamindar. When the Zamindar is removed, succession takes place as if the Zamindar so removed had died. By the use of the 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 most line will be preferred. In adjudging the plaintiffs claim the Court must determine whether Pratapshah-father of the plaintiffs, was the nearest male relative of Amarshah.