1985 Supreme(MP) 80

C.P. Sen J;
Zubeda Khatun v. Altar Hussain;
F. A. No 216 of 1977 (J); Decided on 29-1-1985

Headnote:(1) Succession Act, 1925-Ss. 273 and 381- distinction between - order under section 273 is binding on everybody being in rem-order in succession case under S. 381 is not so binding.

       

        (2) Succession Act, 1925 - S. 370 (4) - shares already determined in partition suit -cannot be determined under different from those.

       

        (3) Land Revenue Act, 1977 (C. P. & Berar) - S. 109-lnterest of protected thekadar descends by primogenitured`rights of the family members still continue.

       

        Masum Ali was the ex-malguzar of village Gidhali in the erstwhile State of Rajnandgaon. He died in the year 1930 and on his death the lands held by him came to be recorded in the name of his eldest son Musaffar Hussain as per the wazib-ul-arz. Masum Ali left behind three sons and three daughters. Plaintiff Altaf Hussain is the second son of Masum Ali. Musaffar Ali, who was the eldest son, is dead and defendants 1 to 4 are his legal heirs while the third son Bakhshish Hussain, who is also dead, and defendants 5.9, 10, 11 and 12 are his legal heirs. Defendants 6, 7 and 8 are the daughters of Masum Ali After the death of Musaffar Hussain in the- year 1970, the plaintiff filed a partition suit (Civil Suit No. 48-A of 1960). for partition of 122.05 acres of lands held by Musaffar Hussain, which was deemed binding that each of the three sons had 2/9 share and each daughter had 1/9 share. The judgment was affirmed in first appeal and then in second appeal No. 123 of 1964 by this Court on 6-11-1967. In the meanwhile, 48.31 acres of land standing in the name of Musaffar Hussain were acquired by the State for construction of a dam. The Land Acquisition Officer awarded compensation of Rs. 12,645.85. For realizing the amount, the defendants 1 to 4 filed Succession Case No.1 of 1971 in the Court of Civil Judge, Class I, Rajnandgaon. It appears that the plaintiff Altaf Hussain alone was a party in that proceeding whiles other heirs were not joined. In that case it was held that the defendants 1 to were entitled to a share of 14/96 and the plaintiff 14/96. The plaintiff, therefore, filed the present suit for declaration that all the three sons had 2/9 share in the amount of compensation and the daughters 1/9 share and so the order passed in Succession Case No.1 of 1971 be declared invalid. Defendants 1 to 4 alone contested the claim. They contended that the land held by Musaffar Hussain being sir and khudkast lands were impartibly and not heritable and so the plaintiff had no right or claim in them; the plaintiff himself had claimed a share of 14/96 in Succession Case and now he cannot be permitted to change his stand and claim 2/9 share and the order passed in the Succession Case has become final and cannot be challenged in a civil suit. The learned trial Judge by his preliminary order dated 27-11-1976 held that the suit was not barred under section 381 of the Indian Succession Act and by the impugned judgment held that the all the three sons are entitled to 2/9 share and the daughters 1/9 share and the share fixed in succession Case was invalid and contrary to the decision in the earlier suit

        Held: The main contention seems to be that the suit is barred as the order in the Succession Case is not open to challenge in a subsequent suit. Reliance is placed on a decision of the Supreme Court in Rukmani Devi v. Narendra Lal (AIR 1984 SC 1866) wherein it was held that it is well settled that the decision of the probate Court is a judgment in rem. A probate granted by a competent Court is conclusive of the validity of such will, until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. So it is contended that the remedy of the plaintiff was to apply for revocation of the succession certificate by way of filing a civil suit. That was a probate case and section 273 of the Indian Succession Act provides that a probate or letters of administration shall have effect over all the property and estate of the deceased and shall be conclusive as to the representative title against all debtors of the deceased. So when a Probate Court admits a will, the order is binding not only on the parties before it but also on all other persons arising out of the will. But here we are dealing with a succession case and section 381 provides that subject to the provisions of this part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owning such debts or liable on such securities and the succession certificate duly granted is conclusive against the debtors of the deceased person and it is not open to them to raise any objection against the person holding the succession certificate on the ground that he is not the heir of the deceased. So the succession certificate granted by the Court to defendants 1 to 4 was binding on the parities and the State is bound to pay the compensation to them and not to anybody else. The order in succession case mentions that it is not necessary to determine the share of other legal heirs in that proceeding while lit the end determined the shares of defendants 1 to 4. This was beyond its jurisdiction. Section 370 (4) provides that when there is more than one person to the succession certificate the Court has to give the certificate to one of them having regard to the extent of interest and fitness in other respects. Since in the partition suit the shares were already determined, in the succession case a different share could not have been fixed. The next contention is that the sir and Khudkhast lands held by deceased Masum Ali came to Musaffar Hussain as per the Wazib-ul-arz and other sons and daughters of Masum Ali had no right or claim therein. Firstly, it is not proved that the lands which were acquired by the State were not out of 122.05 acres, which Was the subject matter of the civil suit. It is common knowledge that the acquisition was after filing of the civil suit. This apart, this is the view of this Court. as held in Maniram v. Ramdayal (1959 JLJ 61), that although under section 109 of the C.P and Berar Land Revenue Act. 1917, the interest of the protected thekadar descends by primogeniture, still the rights of other members of the family in the theka continue, though they cannot obtain partition of the lands in the theka or claim to be in possession of any lands pertaining to the theka, in the absence of any arrangement between them. but the lands in the theka are held by the joint family of the protected thekadar, though it was subject to the express limitation imposed by section 109 and after the M. P. Abolition of Proprietary Rights Act came into force the restrictions under section 109 have completely disappeared and the normal character of lands as Joint Hindu Family property was restored and the lands became portable. The Supreme Court in Udaychand v. Subodh Gopal (AIR 1971 SC 376) held that a suit can be filed for defining the Share in the compensation awarded in a land acquisition proceeding. AIR 1964 SC 1966 distinguished. 1959 JLJ 611 and AIR 1971 SC 376 relied on. Appeal dismissed