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High Court Of Madhya Pradesh
P. K. Tare, C. J. , Raina and Dube, JJ.
NAHAR HIRASINGH - Appellant
Versus
MST.DUKALHIN - Respondents
Letters Patent Appeal 2 Of 1968
Decided On : 11/16/1973
Per Tare, C.J., Raina, J. agreeing - Section 4 (2) of the Hindu Succession Act, 1956, encompasses any legislation providing for devolution of tenure holders or tenancy rights. The phrase 'tenancy rights in agricultural holdings' has been used in a broader sense. In the broad sense tenancy legislation might encompass rights pertaining to lands including rights of tenure - holders and it is from that point of view that the parliament used the word devolution of tenancy rights so as to include not only the rights of tenants proper, but also rights of tenure holders - may be of different kinds 1968 RN 413=1968 JLJ 706 overruled on this point. [Paras 23 & 37
Per K.K. Dube, J. - The legislation with respect to devolution of Bhumiswami or Bhumidhari rights under section 151 of the 1954 Code was not a legislation with respect to tenancy rights of agricultural holdings. 1968 RN 413=1968 JLJ 706 relied on. [Para 50
Under the 1959 - Code, a Bhumiswami is called a tenure-holder but he is not a holder of tenancy rights. The land in possession of a Bhumiswami, who is a tenure holder is in substance an estate. AIR 1961 SC 157 & AIR 1962 SC 694 relied on. [Paras 51 & 50
The Supreme Court has, in Mahadeo's case, clearly indicated that the rights possessed by a Bhumiswami were those of an owner of a land and such rights could be equated with an estate. The tenancy rights, on the other hand, were the lights to cultivate the land as far as permissible under the law. [Para 54
The rights of Bhumiswami could not be equated with tenancy rights in agricultural holdings nor the phrase "tenancy rights in agricultural holdings" occurring in section 4 (2) of the Hindu Succession Act could be so construed as to include the tenure holders in Bhumiswami rights, with the result that even a Bhumiswami is not excluded from the operation of Hindu Succession Act. [Para 57
(2) Land Revenue Code, 1959 (MP) - S. 164 (before amendment) - was not ultra vires - shall prevail over section 4 (2) of the Hindu Succession Act, 1956 - Constitution of India - Art. 254 (2).
Per Full Bench - Section 164 of the M.P. land Revenue Code, 1959, as it stood before its amendment in the year 1961, was a valid provision and it was not ultra vires in view of section 4 of the Hindu Succession Act, 1956. AIR 1970 All. 238 dissented from. [Paras 30, 37, 56 & 57
(3) Land Revenue Code, 1959 (M.P.) - S. 164 (1), before amendment - is prospective.
Per Full Bench - Section 164 of the 1959 Code had no retrospective operation and sub-section (1) will certainly apply to a Bhumiswaml, who is a Bhumiswami at the commencement of the Code and who dies after the said Code. [Paras 33, 42 & 59
(4) Land Revenue Code, 1959 (M.P.) - S. 164 (2), before amendment - Scope of.
Per Tare, C.J. - Sub-section (2) of section 164 of the Code was not dependent on sub-section (1). It is true that sub-section (1) did contemplate death of a Bhumiswami after commencement of the Code. But so far as sub-section (2) was concerned it could operate notwithstanding anything contained in sub-section (1). Sub-section (2) could operate independently and it was immaterial whether the death of the male holder might have taken place before the commencement of 1959-Code. But what was necessary was, that the female Bhumiswami must have acquired interest as a Bhumiswami and her capacity as a Bhumiswami must be at the commencement of the Code. [Para 33
Per Raina, J - Sub-section (2) of section 164 (before 1961-Amendment) was nothing but a proviso to sub-section (1). The fact that the non-obstante clause in sub-section (2) of section 164 of the Code was merely intended to override the provisions of sub-section (1) of the said section clearly shows that it was intended to be a proviso to sub-section (1). [Para 40
Sub-section (1) of section 164 (before amendment) contemplated death of the Bhumiswami after the commencement of the code. Sub-section 2 of section 164, if construed as a proviso must, therefore, necessarily relate to a case of devolution of the interest of a Bhumiswami dying after the commencement of the Code. [Para 42
Sub-section (2) was attracted only where the interest of a Bhumiswami was inherited by a female after the commencement of the Code and not otherwise. Where a Bhumiswami dies before the commencement of the Code, his female heir would under section 14 of the Hindu Succession Act, acquire an absolute interest and section 164 of the Code could not be construed as adversely effecting such interest in the circumstances specified in sub-section (2) of section 164. [Para 45
Per K.K. Dube, J - The word Bhumiswami in sub-section (2) of section 164 (as it before 1961-Amendment) has to be construed according to the 1959 - Code and not as defined in any other enactment. [Para 58
Both the sub-sections of section 164 (before amendment) were independent and sub-section (2) was not a proviso to sub-section (1). However, the interest of a Bhumiswami dealt within both these sub-sections is the interest created for the first time by section 158. The female falling under the above description must be one who inherited after the coming into force of the Code. Thus the case of a female who had inherited before the Code did not fall under sub-section (2) even if she dies after the Code. Her case will fall under sub-section (1). [Para 59
(5) Land Revenue Code, 1959 (MP) - S. 164 - personal law - applicable as when the devolution opens.
Per Tare, C. J. - The personal law applicable will be the law as amended from time to time upto the stage when the relevant question of devolution comes to be considered. 1968 RN 413=1968 JLJ 706 relied on. [Para 24
( 1 ) THIS opinion shall govern the disposal of this Letters Patent Appeal as also the second Appeal No 91 of 1966 -- (Durgaprasad v. Chunnilal ).
( 2 ) THE present Letters Patent Appeal has been referred to this Court for decision of the entire appeal by a Division Bench of this Court, by order, dated 31-3-1971, as also for decision of the question whether a Bhumiswami under the Madhya pradesh Land Revenue Code, 1959, is a tenure holder within the meaning of section 4 of the Hindu Succession Act. 1956. That question is also involved in second Appeal No. 91 of 1966 (Madh Pra ). Therefore, by this opinion, we propose to decide that question and later on, we propose to decide the Letters Patent appeal on merits. On expression of the opinion on the question referred Second appeal No. 91 of 1966, will have to so back to the Single Bench for decision on merits in accordance with the opinion of this Full Bench. Along with these two cases. Second Appeal No. 447 of 1966 (Madh Pra) -- (Smt. Rangu v. Anji) had already been referred to this Full Bench for opinion on the question relating to section 164 of the Madhya Pradesh Land Revenue Code. 1959. However, in that case it was found that the appellants and respondents were remoter heirs and the deceased. Krishnarao had left a son, whose existence was disclosed during the pendency of the case before this Full Bench. Therefore, the decision of the question referred was more or less of an academic nature and consequently, by order, dated 25th September 1973, we allowed that appeal and dismissed the plaintiffs' suit holding that the plaintiffs and defendants had no right to the property left by the deceased Krishnarao, whose son is living. In the presence of the son other remoter heirs could have no claim to the property of the deceased.
( 3 ) IN the Letters Patent Appeal, one more question of law is involved namely, whether under Section 164 as it stood then, the female mentioned in Subsection (2) of Section 164 of the M. P. Land Revenue Code. 1959, was a female who had herself inherited the property under Sub-section (1) of that Section. For that reason the entire case was referred to this Full Bench for decision on merits as well.
( 4 ) FOR the purpose of giving our opinion whether a Bhumiswami under the M. F. Land Revenue Code, 1959, is a tenure holder within the meaning of Section 4 of the Hindu Succession Act, 1956, it is not necessary for us to state the facts of the two cases in details. But we may have to take note of the trend of decisions on this point with reference to the provisions of the M. P. Land Revenue Code, 1959, and the Hindu Succession Act. 1956. We shall come to facts when we decide the letters Patent Appeal on merits.
( 5 ) THE M. P. Land Revenue Code, 1959, came into force on 2-10-1959. Before that the M. P. Land Revenue Code. 1954 (Act No. 2 of 1955) came into force on different dates. Section 1 and Section 242 of the Act came into operation immediately, i. e. on publication of the Act in the M, P. Gazette (Extraordinary)dated 12-2-1955, and the remaining Sections were to come into force from such date as the State Government might by Notification appoint. The appointed date was 1-10-1955. The said Act contemplated two kinds of tenure holders, as per section 145 of that Act namely, (i) Bhumiswami and fill Bhumidhari. Section 146 of the Act defines a 'bhumiswami' to mean every person, who at the coming into force of this Code belonged to any of the following classes and he was to have all the rights and be subject to all the liabilities conferred or imposed upon a bhumiswami by or under the Code, namely:-- (a) Every person in respect of land held by him as a malik-makbuza or a plot proprietor in the Central Provinces or the merged territories;
(b) Every person in respect of land lawfully held by him as house site in abadi in the Central Provinces or the merged territories;
(c) Every person in respect of land held by him as a raiyat malik in the central Prov
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