Indian Kanoon - Search engine for Indian Law

It is seen that 100 bighas of land in Chandurpura was granted as Jagir. What had remained after the Act is hardly 5.41 bighas. So the rest of the lands obviously, was resumed by the Government, under the Act. By operation of Section 18 of the Act it is the Jagirdar who is entitled to receive, compensation money payable under the Act. Therefore, the money received towards compensation of Jagir lands also retains the character as impartible. Under the Act by operation of Section 19 of the Act the Jagirdar is declared to be a pucca tenant of khudkhast lands of Dwarkanath. From the impugned judgment it is clear that there are plethora of precedents of the Madhya Pradesh High Court that after the abolition of the estates under the Act the lands became joint family properties which received approval from Anant Kibe v. Purushottam Rao, AIR 1984 SC 1121 ; [1984] (Suppl.) SCC 175, relied on by Sri Bobde. Therein this court held that the combined effect of sections 158(1)(b) and 164 of the M.P. Land Revenue Code was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were granted in terms of the grant of inam lands under the Jagir Manual stood extinguished. Bhumiswami right was conferred on the holder of the land, i.e., Dwarkanath. In the Madhya Bharat Land Revenue and Tenancy Act, 1950, by operation of Sections 54(7), 69 and 82, the lands become the pucca tenancy of Bhumiswami, i.e, Dwarkanath. Therefore, the devolution of the right of pucca tenancy is by succession opened to appellants Nos. 1 and 2. Accordingly we hold that items 2, 3 and 5 of Schedule 2 lands become the properties of the appellants."

56. It was contended by learned counsel for the Revenue that the question of succession would arise only when the succession opens on the date of the fateful event to such an estate and will not affect the status of impartibility in presenti.

57. Undoubtedly, who shall be the heir of the estate and what shall be his share in the estate will have to be governed on the basis of existing heirs in terms of the Hindu Succession Act when the holder dies. But the question to which law of succession the property is subject for the time, is not dependent on the opening or not opening of the succession. Who shall be the heir when succession opens, relates to the identity of actual inheriter, and can be amenable to answer only at the time the succession opens. However, by what rules of succession the property of any person is governed, and what are the incidence of such rules governing the principle of succession is a matter of law to which any property for the time being is subject. The latter question always refers to state in present and depends on personal law or a codified law governing succession of any person. If the law is abrogated, the applicability of the new law becomes immediately effective from the date the law is changed and the property becomes subject to new law. It may further be noticed that an estate becomes impartible not because succession has taken place by the rule of succession to a single heir or by the rule of primogeniture to a single heir in the male line of descent ; but it becomes impartible because as and when succession opens it shall be subject to the rule of inheritance by primogeniture in the male line of descent. Because it was subject to rule of succession to a single heir in the male line of descent, it became impartible importing unrestricted power to alienate and excluding claims to partition. Impartibility shall stand destroyed when it becomes subject to rule of succession otherwise. Therefore partibility or impartibility is to be decided on the date the rule of inheritance is attached to the property when acquired or when such rule is altered else the provisions of Section 4 would be superfluous. Sections 4 and 5 read together mean that any property which is impartible because it is subject to the rule of inheritance by primogeniture to a single heir in the male line of descent impartibility of the same is destroyed as soon as that property becomes subject to the Hindu Succession Act. The incidents of rule of inheritance with which the property is governed is replaced by a new rule and it has to be judged in that light.

59. The court further said (page 203) :

"The effect of the provisions of Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under Section 7(2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act."

60. The Act provided that such interest shall devolve by testament under the provisions of the Hindu Succession Act and not according to the Mitakshara or Nambudari law. So also a provision was made for giving overriding effect to the provisions of the said Act the rules prevailing under the Aliyasanthana law. This was a case in which before succession had opened, a suit for partition was filed by a member of a Kutumba governed by the Aliyasanthana law. The court said that the effect of the provisions of the Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under Section 7(2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act and on that basis the suit for partition was held to be maintainable.

64. The question of abrogation of custom or any provisions of law contrary to the provisions of the Hindu Succession Act under Section 4 is not postponed in each case until a succession opens the abrogation of custom or , the law contrary to the provisions made in the Act is forthwith. The succession in each and every case after the commencement of the Act shall be in accordance with the principles emanating from the provisions of the Act of 1956, The reasoning adopted by the Calcutta High Court, in our opinion leads to anomalous situation that a custom applicable to a particular class of property is not projected simultaneously on the date of the enactment but is projected in the case of each property depending upon when the succession opens in future as if the same custom will be abrogated as many times new succession opens and a provision of law inconsistent with the Hindu Succession Act, 1956, will be repealed not once but as many times as succession will open in future in relation to different properties.