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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and R. J. Bhave, J.
KUMARI RAMLALI - Appellant
Versus
MST.BHAGUNTI BAI - Respondents
Letters Patent Appeal 6 Of 1965
Decided On : 04/20/1968
Where the propositus died on 19th March 1957, the question of devolution of the rights of the propositus in the plots is governed by section 151 of the M.P. Land Revenue Code, 1954 and not by the provisions of the Madhya Pradesh Land Revenue Code, 1959. [Para 5
(2) Constitution of India - Seventh Schedule, List III, Entry No. 5 - Parliament competent to enact laws relating to wills, intestacy and succession to agricultural lands - Hindu Succession Act, 1956.
(3) Hindu Succession Act, 1956 - S. 14 - relates to agricultural land - competency of Parliament to enact laws relating to wills, succession and intestacy to agricultural land - Constitution of India - Seventh Schedule, List III, Entry No. 5.
Entry No. 5 of List III of the Seventh Schedule to the Constitution does not exclude agricultural lands from the power of legislation relating to wills, intestacy and succession as was done by entry No. 7 of List III of the Seventh Schedule to the Government of India Act, 1935, which contained the expression "save as regards agricultural land". That being so, the Hindu Succession Act, 1956, applies also to agricultural lands. After the coming into force of the Constitution the Union Parliament became competent under Schedule 7, List III, entry No. 5 to legislate in the matter of wills, intestacy and succession in respect of agricultural lands also AIR 1965 Punj. 254, AIR 1957 Orissa 1 and AIR 1960 Punj. 462 relied on. [Para 5
(4) Hindu Law - Inheritance - co-widows inheriting from husband position before the Hindu Succession Act, 1956.
Two widows inheriting their husband's properties took together as joint tenants with rights of survivorship and equal beneficial enjoyment; they were entitled to enforce a partition of those properties so that each could separately possess and enjoy the portion allotted to her, but neither could, without the consent of the other, enforce an absolute partition of the estate so as to destroy the right of survivorship. AIR 1965 SC 1752, AIR 1960 SC 1172, 11 MIA 487, 4 IA 212, 6 IA 15 & 19 IA 184 relied on. [Para 5
(5) Hindu Succession Act, 1956 - S. 14 (1) - co-widows inheriting from husband-take as full owners - section retrospective.
The original Hindu Law regarding the position of co-widows inheriting from the husband has been modified by the Hindu Succession Act, 1956 Sub-section (1) of section 14 prescribes that any property possessed by a female Hindu whether acquired before or after the commencement of the Act of 1956, shall be held by her as full owner thereof and not as a limitated owner. This sub-section has retrospective operation so as to make a female Hindu a full owner of immovable property acquired by her including property acquired either at a partition or by way of gift or by inheritance or by devise. [Para 6
(6) Hindu Succession Act, 1956 - Ss. 4 (2) and 14 - exclusion of law relating to tenancy rights - Bhumiswami and Bhumidharis are not tenants law relating to their inheritance not excluded - M.P. Land Revenue Code, 1954 (M.P.) - S. 151.
(7) Land Revenue Code, 1954 (M.P.) - S. 151 - operation of section 14 of the Hindu Succession Act, not excluded by section 4 (2) of that Act.
The laws which are taken out of the purview of section 4 (1) of the Hindu Succession Act, 1956, are the laws providing for the fragmentation of agricultural holdings or for fixation of ceiling or for devolution of tenancy rights in respect of such holdings.
An examination of the provisions contained in Chapter XII and some other provisions of the Madhya Pradesh Land Revenue Code, 1954, shows that Bhumidhari and Bhumiswami rights are not tenancy rights and the provision contained in section 151 of the Code is not any provision for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights. [Para 9
It is, therefore, clear that section 4 (2) of the Hindu Succession Act, 1956, in no way saves section 151 of the Code and it cannot be held that section 14 of the Act of 1956 does not affect the personal law according to which the devolution of the interest of a tenure - holder passes under section 151 of Code, AIR 1966 Bom. 64 and AIR 1964 Punj. 272 relied on. [Para 12
(8) Land Revenue Code, 1954 (M.P.) - S. 145 - legal position of Bhumiswamis and Bhumidharis - they are not tenants - they do not hold land in tenancy rights - nature of their rights.
A Bhumiswami or Bhumidhari pays land revenue and not rent. Chapter XII of the Code also contains provisions for the transfer of Bhumiswami or Bhumidhari rights, partition of Bhumswami and Bhumidhari holdings when there are more than one tenure-holders, etc. It is worthy of note that tenancy rights are dealt with separately by the Code in Chapter XIV thereof. That Chapter also contains sections 168 and 172 which deal with the devolution of rights of an ordinary tenant and an occupancy tenant. Those rights also pass on the death of a tenant in accordance with personal law. All these provisions read together show that Bhumiswami and Bhumidharis who hold land directly from the State and pay land revenue to the State like owners of land are not tenants; they have permanent Eights in the land which are not taken away by the Government except in certain cases. AIR 1961 SC 1617 relied on. [Para 10
(9) Land Revenue Code, 1954 (M.P.) - S. 151 - personal law - law as amended by Hindu Succession Act, 1956 is the personal law.
The personal law mentioned in section 151 of the M.P. Land Revenue Code, 1954, is the personal law as amended by the Hindu Succession Act, 1956. AIR 1966 Bom. 64 and AIR 1964 Punj 272 relied on. [Para 14
(10) Precedents - judgments of single judge - are binding on single judge - single judge not agreeing with previous view - should refer the matter to larger Bench.
A judge has always the right to express his opinion indicating that he is not in agreement with an authority binding on him but he nevertheless is in duty bound to follow it. A Single Judge differing from a decision of another Single Judge in a previous case on a question of law should refer the case to a larger Bench instead of deciding the case in accordance with his own view. AIR 1960 SC 936 relied on. [Para 14
(11) Letters Patent (Nagpur) - Cl. 10 - question not directly raised before the Single Judge - question necessary for deciding the question in issue and going to the root of the matter - Division Bench may decide. [Para 15
( 1 ) THIS is a Letters Patent appeal from a decision of Pandey J. whereby the learned single Judge, setting aside the judgments of the original Court and the first appellate Court, dismissed the plaintiff-appellant Ramlali's suit for partition and separate possession of certain agricultural plots.
( 2 ) THE material facts are that one Ramnath died in February 1954 leaving two widows, one Mst. Bilasabai and another Mst. Bhaguntibai, and two daughters, the appellant Kumari Ramlali and Kumari Keshbai born of Mst Bilasabai. At the time of his death Ramnath held some plots situated in villages Deori and Tigwan on bhumiswami and Bhumidhati tenure. After his death his two widows jointly inherited the plots. Mst. Bilasabai died on 19th March 1957. Thereafter disputes started between Mst. Bhaguntibai and the two daughters of Mst. Bilasabai about the possession of the plots. Ultimately, in proceedings under Section 145 of the code of Criminal Procedure an order was made in favour of Bhaguntibai. On 9th april 1958 Bhaguntibai sold one of the plots, namely khasra No. 29th having an area of 13. 47 acres of village Tigwan to the respondents nos. 2 to 5.
( 3 ) RAMLALI and her sister Keshbai then instituted a suit claiming partition and separate possession of half share of the plots in suit alleging that on the death of their mother Bilasabai they inherited Bilasabai's half share in the plots. The respondent Bhaguntibai contested the suit inter alia on the ground that on the death of her co-widow Bilasabai, she became the exclusive owner of the plots and that the plaintiffs had no right or title to the plots during her lifetime. The plea of the other respondents was that they were bona fide purchasers for value of the plot bearing khasra no. 296 and had also spent Rs. 2,000 in making some improvements in the plots. The Civil Judge. Class II. Sihora, who tried the suit, accepting the plaintiffs' claim passed a preliminary decree against Bhaguntibai declaring that the plaintiffs had a half share in the plots and directing partition of the suit lands He also directed that "the value or area of khasra No. 296 will be adjusted from the share of the defendant No. 1, that is Bhaguntibai" Bhaguntibai then unsuccessfully appealed before the Additional District Judge. Jabalpur. It appears from the record that in the interval between the decreeing of the claim by the original Court and the filing of the appeal by Bhaguntibai, Keshbai died. ( 4 ) IN the second appeal which Bhaguntibai then preferred in this Court the learned single Judge took the view that under Section 151 of the Madhya Pradesh Land revenue Code, 1954 (hereinafter referred to as the Code), the interest of the tenure-holder Ramnath in the plots devolved after his death on his co-widows according to his personal law that the 'personal law' spoken of by Section 151 of the Code meant the personal law as it, stood when the Code was enacted and not the personal law which obtained after the enactment of the Hindu Succession Act, 1956; and that, therefore, Section 14 of the Hindu Succession Act did not in any way affect the devolution of the plots in the present case. On this reasoning and following the decisions of the Privy Council in Bhugwandeen Doobey v. Myna Baee, (1906) 11 Moo Ind App 487 (PC ). Sri Gajapathi Nilamani Patta Maha Devi Garu v. Sri Gajapathi Radhamani Patta Maha Devi Garu. (1876-77) 4 Ind App 212 (PC ). Chotay Lall v. Chammoo Lall, (1878-79) 6 Ind App 15 (PC) and Sri Gajapati radhamani Garu v. Maharani Sri Pusapati Alakarajeswari, (1892) 19 Ind App 184 (PC), the learned Single Judge held that on the death of Ramnath the two cowidows succeeded as co-heirs to the plots of their deceased husband and took as ioint tenants with rights of survivorship and equal beneficial enjoyment and that on the death of Bilasabai her interest survived to Bhaguntibai and did not descend to the other heirs of Ramnath and that so long as Bhaguntibai was alive, no portion of Ramnath's
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