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1958 DIGILAW 270 (RAJ)

Daroli v. Mst. Mayadevi

1958-12-23

R.N.HAWA, SHYAMLAL

body1958
This revision has been filed against the appellate order of the Additional Collector, Bharatpur dated 3.2.58 upholding the original order of the Tehsildar Bharatpur dated 4.11.57 in a case relating to mutation proceedings whereby the mutation of the deceased Sher Singh was sanctioned in the name of his daughter Shrimati Maya Devi. 2. We have heard the learned counsel for the parties and have examined the record as well. Some of the salient facts which have an important bearing upon the case may be set out as below: — (1) Sher Singh died on 18 9 56 leaving behind no male issue or a widow but only a daughter, Shrimati Maya Devi. (2) The Rajasthan Land Revenue Act, 1956 which received the assent of the President on 23.5.56 was enforced on 1.7.56. Sec. 137 of the Act lays down that succession of an estate shall be governed by the law, usage or practice of the local area in which such estate lies notwithstanding the provision of repeal contained in sec. 263 of the Act. Sec. 51 of the Bharatpur State Revenue Code, 1905 lays down that the inheritance of biswedari rights including rights in the Shamlat area shall be governed by the provisions contained in the Wajib-ul-arj of each village. A certified copy of the Wajib-ul-arj of this village exists on record and parts 1 and 2 of the same provide that the male lineal descendants of the deceased and in their absence the widow of the deceased shall inherit. The daughter of the deceased is not recognised as a heir in these provisions. (3) The Hindu Succession Act, 1956 received assent on 17th June, 1956 and became the law of the land on that date. Sec. 8 of this Act lays down that the property of a male Hindu dying intestate shall devolve first upon the heirs specified in Glass 1 of the Schedule. Sons and daughters are included in this class. 3. The point which arises for determination in the case is as to whether the daughter of the deceased should be allowed to inherit the biswedari rights of the deceased Sher Singh or not. The learned counsel for the applicant argued that sec. Sons and daughters are included in this class. 3. The point which arises for determination in the case is as to whether the daughter of the deceased should be allowed to inherit the biswedari rights of the deceased Sher Singh or not. The learned counsel for the applicant argued that sec. 4(2) of the Hindu Succession Act 1956 lays down that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmention of holding or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. The argument is that by virtue of this exception the question of succession in the present case should also be deemed to be beyond the scope of this Act. This argument is clearly untenable. What is exempted from the Act is the law providing for the prevention of fragmentation of holdings or fixation of ceilings or the devolution of tenancy rights in such holdings only. What is involved in the present case is not the devolution of any tenancy right but the question of succession of a Biswedari estate. 4. We now come to the examination of the question as to whether the provisions of the Bharatpu Code should be allowed to prevail or not. The answer to this question is bound to be in the negative as provided clearly in Art 254 of the Constitution of India. According to the Bharatpur Code a daughter is not entitled to inherit whereas according to the provisions of the Hindu Succession Act she is so entitled. This evidently amounts to a repugnancy between to laws. This question as to the contents of repugnancy was examined by their Lordship of the Supreme Court in AIR. According to the Bharatpur Code a daughter is not entitled to inherit whereas according to the provisions of the Hindu Succession Act she is so entitled. This evidently amounts to a repugnancy between to laws. This question as to the contents of repugnancy was examined by their Lordship of the Supreme Court in AIR. 1954 S.C. 752 and it was observed as below: — "It is true as already pointed out, that on a question under Art. 254(1) whether an Act of Parliament prevails against a law of the State, no question of appeal arises but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the latter legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the latter enactment, will be equally applicable to a question under Art. 254(5) where the further legislation by Parliament is in respect of the same matter as that of the State law." 5. Succession is a matter included in item 5 of the Concurrent list given in the Seventh Schedule of the Constitution Art. 254 of the constitution provided that if any provision of a law made by a State legislature is repugnant to any provisions of clause (2) the law made by the Parliament whether passed before or after the law made by the legislature of such State the existing law shall prevail and the law made by the State legislature shall to the extent of repugnancy be void. Clause (2) relates to a law made earlier by the Parliament and where the State law has received the assent of the President it shall prevail. Evidently this is not the case here as the law made by the Parliament comes in point of time after the law made by the State legislature as the same had received the assent of the President on 23.5.56 though it was enforced at a subsequent date. The fact remains that the Hindu Succession Act, 1956 received the assent after the Rajasthan Land Revenue Code was assented to by the President and thus the law made by the Parliament shall prevail to the extent of repugnancy. 6. The fact remains that the Hindu Succession Act, 1956 received the assent after the Rajasthan Land Revenue Code was assented to by the President and thus the law made by the Parliament shall prevail to the extent of repugnancy. 6. It has also been observed by the first appellate court that the opposite party has been in possession and that mutation proceedings are not intended to decide intricate questions of law as their main object is merely a fiscal one For these reasons we hold that there is no ground for interference in this revision which is hereby rejected.