Pt. Jayvant Rao v. Pt. Chandrakant Rao — 1966 DIGILAW 27 (RAJ)

BHANDARI, J.—This is a Civil First Appeal in a suit for partition which has been dismissed by the District Judge, Kota, as he decided certain preliminary points against the plaintiffs. 2. The pedigree table of the family on the next page shows the relationship of the parties to the suit. Pt. Ramchandra Lalji Pt. Govindraoji Pt. Ganpat Raoji adoptedSmt. Kesharbai widow(Deft. No.12) Pt. Motilal alias Krishnaraoraji Pt. Purshottam Raoji (Adopted) Smt. Rukma Bai widow(Deft. No. 13) Pt. Chandrakant Rao(Deft. No. 1) Pt. Suryakant Rao(Deft. No. 2) Pt. Laxmikant Rao(Deft. No. 3) Smt. Anandi Bai(Deft. No. 14) Smt. Sudhabai (Deft. No. 15) Smt. Sumitra Bai(Deft. No. 16) Pt. Manakraoji (Deft. No. 4) Kumari Uttara(Deft. No. 19) Kumari Nirmala(Deft. No. 20) Kumari Sobhana (Deft. No. 21) Deepak(Deft. No. 5) Deelip (Deft. No. 6) Ujjavala(Deft. No. 22) Ajeet(Deft. No.7) Raja(Deft. No.7) Pt. Krishna Raoji (Deft. No. 9) wife Shankuntla Bai Pt. Jaivant Rao (Plaintiff No. 1) wife Smt. Sanehlata Bai (Deft. No. 18) Pt. Vishvarao (Deceased) Pt. Ram Chandra (Pltf. No. 2) Shrikant (Plaintiff No. 3) Girish (Plaintiff No. 4) Asha (Defendant No. 27) Pt. Pandharinath (Deft. No.10) Pt. Udai (Deft. No.11) Deoyani(Deft. No.23) Lilawati(Deft. No.24) Ratna(Deft. No.25) Rekha(Deft. No.26) 3. The case of the plaintiffs, as set out in the plaint filed on 21.1.1950 in the court of the District Judge, Kotah, is that in or about Samvat 1894, Kotah State was indebted to Pt. Ramchandra Lala to the extent of Rs. 9,27,364/15/6. On 8th April, 1838, the then Ruler of Kotah State assigned to Pt. Ramchandra Lala, in Jagir, eight villages which had been granted to him in udak previously. These eight villages jointly called as Sarola Jagir were, as follows:— (1) Sarola; (2) Chasawa; (3) Champakhur; (4) Malanwas; (5) Kankarda; (6) Lakhamba; (7) Sanwas and (8) Neemka Kheda. This assignment, according to the plaintiffs, was for the purpose of recovering interest on the loan and the principal remained unpaid. After the death of Pt. Ramchandra Rao, these villages formed joint family property of the two brothers, Pt. Govind Rao and Pt. Moti Lal, sons of Pt. Ramchandra Rao. Other valuable movable and immovable properties were also acquired by this joint Hindu family either from the income of the joint family property or with the labour of its members. After the death of Pt. Motilal and Pt. Govind Rao, Pt. Purshottam Rao, father of plaintiffs Nos. Govind Rao and Pt. Moti Lal, sons of Pt. Ramchandra Rao. Other valuable movable and immovable properties were also acquired by this joint Hindu family either from the income of the joint family property or with the labour of its members. After the death of Pt. Motilal and Pt. Govind Rao, Pt. Purshottam Rao, father of plaintiffs Nos. 1 and 2 managed the joint family property. On 14.2.1937, Pt. Purshottam Rao died. Pt. Chandrakant Rao (Defendant No. 1) son of Pt. Ganpat Rao, actuated by selfish motives, wanted to deprive the plaintiffs of their rights in the family property. He managed to get himself admitted by the then Ruler of the Kotah State as the sole owner of the said Sarola Jagir. The plaintiffs contend that as members of the joint family they were entitled to these villages which were joint family property. They are also entitled to recover from Defendant No. 1 Pt. Chandrakant Rao and defendant No. 28—The State of Rajasthan on whom the liability of the former Kotah State for the aforesaid debt had devolved the amount of Rs. 4,53,682-7-9 which was half of the amount of Rs. 9,27,364/15/6 due against the Kotah State for which a decree was prayed against them. The plaintiffs claimed partition of the following movable and immovable properties detailed in para No. 15 of the plaint:— 1. Eight Jagir villages with other agricultural lands of Nimotha, Balakund, income from the rent of houses etc. Annual income was estimated at Rs. 53,000/-and annual expenditure at Rs. 18,000/- approximately. Thus the annual saving was stated to be Rs. 35,000/-. 2. Ornaments with utensils of silver and gold worth Rs. 3,00,000/-approximately. 3. Unserviceable goods of Rs. 2,000/- 4. Precious goods, jewellery articles/shield and sword etc. Rs. 30,000/-. 5. Utensils of the value of Rs. 6000/-. 6. About 300 camels and horses-valuation Rs. 1,20,000/-. 7. House - valuation - Rs. 4,39,870/. The plaintiffs also claimed rendition of accounts of the income of the joint family property from Pt. Chandrakant Rao Defendant No.1. 4. It is necessary to mention in detail only the defence taken up by Pt. Chandrakant Rao. It is admitted by him that the Ruler of the Kotah State was indebted to Pt. Ramchandra Lala to the tune of Rs. 9,27,364-15-6, but it is alleged that this debt had been discharged and Pt. Chandrakant Rao Defendant No.1. 4. It is necessary to mention in detail only the defence taken up by Pt. Chandrakant Rao. It is admitted by him that the Ruler of the Kotah State was indebted to Pt. Ramchandra Lala to the tune of Rs. 9,27,364-15-6, but it is alleged that this debt had been discharged and Pt. Ramchandra Lala had executed a farkhati of the debt in favour of the then Ruler. Pt. Ramchandra Lala had been already holding an udakgrant of the aforesaid eight villages, and in view of the aforesaid farkhati His Highness of Kotah State gifted the said eight villages to him and issued a Sanad in favour of Pt. Ram Chandra Lala and his eldest son Pt. Govind Rao. On 22.1.1938, the then Ruler of the Kotah State, after full enquiries, declared the said Jagir villages as impartible according to the custom prevailing in the Kotah State and further ordered mutation of the said Jagir villages in the name of Pt. Chandrakant Rao, he being the eldest son in the eldest line. The then Maharao of Kotah State had passed that order so that the Jagir may remain intact and may not be fragmented or otherwise wasted. He further stated that prior to 22.1.38, there was no definite rule of mutation and mutation used to be made in the names of two persons. The order dated 22.1.1938, was made to remove this uncertainty, and, to remove any doubts, it was provided that in the matter of succession the rule of primogeniture was to be applied to this Jagir. It is contended that the order of 22.1.1938 was a legal and proper order and was passed in the interests of the Jagir itself. 5. It is contended that in the property mentioned in para No. 15 of the plaint and any other properties none of the plaintiffs had any right to claim partition. It is further stated that on the death of Pt. Purshottam Rao, the ornaments mentioned in Para. No. 15 came in possession of Defendant No. 13, Shrimati Rukma Bai the widow of Pt. Purshottam Rao, and since then they were in possession and power of the plaintiffs. It is also contended that some of the houses mentioned in Para No. 15 had been sold against the debt of the Jagir. Purshottam Rao, the ornaments mentioned in Para. No. 15 came in possession of Defendant No. 13, Shrimati Rukma Bai the widow of Pt. Purshottam Rao, and since then they were in possession and power of the plaintiffs. It is also contended that some of the houses mentioned in Para No. 15 had been sold against the debt of the Jagir. It is said that valuation of properties as given by the plaintiffs is over estimated. It is also said that Pt. Purshottam Rao, father of the plaintiffs, died leaving a debt of 2-1/2 lakhs rupees against the Jagir and the plaintiffs had paid a good deal of it, but still Rs. 90,000/-remained to be paid. 6. Defendant No. 13, Shrimati Rukma Bai supported the plaintiffs case in her written statement and so also the defendants Shrimati Shakuntla Bai defendant No. 17 (widow of Pt. Krishna Rao), Shrimati Snehlata Bai Defendant No.18, Kumari Devyani daughter of Pt. Krishna Rao Defendant No. 23, Kumari Lilawati Defendant No. 24, daughter of Ft. Krishna Rao, Kumari Ratan Bai Defendant No. 25 daughter of Pt. Krishna Rao, Kumari Rekhawati Defendant No. 26 daughter of Pt. Krishna Rao and Kumari Asha Defendant No. 27 daughter of Pt. Jayant Rao. On behalf of the State, the Chief Secretary to the Government of Rajasthan filed the written statement denying the liability of the State. The other defendants contested the suit on the same lines as Pt. Chandrakant Rao. 7. The learned Judge of the trial court framed the following preliminary issues:— 1. Has this Court no jurisdiction to hear the suit? (Defendants) 2. Is the suit within time? (plaintiffs). 2-A. Was Plaintiff No. 2 a minor in the year 1938 and became major only 2 years back and due to this also the suit is within time? (Plaintiffs) 3. Is the suit not maintainable in view of the order of 22.1.38 of the Maharao Sahib of Kotah and in view of the subsequent orders in this connection (Defendants) 4. Is the suit barred by res judicata (Defendants) 5. Is the suit bad for misjoinder of parties and causes of action (Defendants) 6. Have the plaintiffs no cause of action as Jagir Sarola had been resumed and is the suit not triable by this Court (Defendants). 7. Is the suit barred by res judicata (Defendants) 5. Is the suit bad for misjoinder of parties and causes of action (Defendants) 6. Have the plaintiffs no cause of action as Jagir Sarola had been resumed and is the suit not triable by this Court (Defendants). 7. Whether the notice given to the Rajasthan State is invalid or legally defective and if so, what is its effect (onus on the defendants) The learned District Judge in his judgment first referred to the history of the Jagir grant and then decided the aforesaid preliminary issues. Issues Nos. 5, 6 and 7 were decided in favour of the plaintiffs, but issues Nos. 1, 2, 2-A, 3 and 4 were decided against them and in favour of the contesting defendants. 8. Before we examine the correctness of the decision of the learned Judge, it is necessary to refer to certain facts which are proved by the admitted documents on the record. The aforesaid eight villages were first granted in udak by the then Ruler of the Kotah State to Pt. Ramchandra Rao, but some taxes and fines used to be realized from him. The Ruler of the Kotah State was indebted to Pt. Lalji Ram Chandra (Pt. Ramchandra Rao) to the extent of Rs. 9,27,364-15-6. On 10th April, 1838 Maharao Ram Singh of Kotah signed a treaty with the British Government. Art. 3 of the treaty, which is given at Page 365 of Vol. III of Treaties, Engagements and Sanads by O.U. Aitchison provided that: "The Maha Rao, his heirs and successors, will fulfil the pecuniary obligations arising out of the present arrangements of separation and transfer agreeably to the appended Schedule." In the Schedule appended to the treaty the amount due to Pandit Lalajee Ramchand was mentioned alongwith the debts of the other creditors, and it was provided that the claims referred to in the Schedule will individually be satisfied by the Maha Rao after due enquiry agreeably to the circumstances of each. 9. On Jeth Badi 12, Smt. 1894, His Highness the Maharao of Kotah obtained a deed of discharge called Farkhati from Pt. Govindrao Ramchandra, the purport of which is given in Ex. 9. On Jeth Badi 12, Smt. 1894, His Highness the Maharao of Kotah obtained a deed of discharge called Farkhati from Pt. Govindrao Ramchandra, the purport of which is given in Ex. C, which is quoted below: "That all debts contracted by the State from the time of Zalim Singh to that of Muddan Singh up to Jeth Buddee 12 Smt. 1894 having been brought to a final adjustment by Colonel Alves and Captain Ludlow in which my claim of Rupees 8,45,577.9.3 is also included and that as certain villages which had been granted to me by the Durbar for many years as Jagir and for which I had to pay the customary taxes, fines, etc. and now that the said villages have been conferred on me in perpetuity and the taxes, fines, etc. removed therefrom and a Parwana to the above effect having been granted on the part of the Darbar, I therefore, give this acquittance for my claim through Sai Mamie Chand, the Agency Treasurer, and I do hereby utterly disallow, revoke, and dissannul, and all any other documents which may have been previously written by me. In witness whereof I have hereunto set my signature the date and year as above written. Govind Rao Ramchandra." Ex.C shows that in consideration of the grant of certain villages in perpetuity free from any taxes fines etc. Pt. Govind Rao Ramchandra had executed the said Farkhati. The Parwana of which reference is made in Ex. C is Ex.A on record which runs as follows:— "Be it known to Ramchandra Lallaji and his son Govind Rao that (as regards the Jagir and Ooduck (charity) hither to enjoyed of eight villages) namely Kusba Sarola Burra, Malunwasa of Sarola, Cheetawa of Sarola, Kankurda of Sarola, Champakhoor, "Oodak" (charity) of Sarola, Soonwas of Jeithpoor, Neemka khera of Rampoor, and Lakhamba of Rampoor; you having given a written deed of release for all claims against the State incurred from the time of Zalim Singh to that of Muddin Singh ending Fagoon Boodee 15, Smt. 1894, consequently the above mentioned Jagir confirmed and conferred upon you in perpetuity and will always remain from sons to grandsons (1. Taxes hitherto exacted are also remitted. 2. Taxes called the Barar and Sewai are also remitted. 3. Taxes excepting Barar are also remitted). So there will be no difficulties. Remain faithful therefore. Taxes hitherto exacted are also remitted. 2. Taxes called the Barar and Sewai are also remitted. 3. Taxes excepting Barar are also remitted). So there will be no difficulties. Remain faithful therefore. By verbal order of His Highness conveyed through Dhabai Myalall Lalljee Ram with the consent of Sahai Manik Chand on behalf of the Sahib Bahadoor." Thus, the Jagir of the eight villages which was formerly in udak was granted afresh to Pt. Ram Chandra and his son Pt. Govindrao in perpetuity free of all taxes, with the stipulation that the grantees were to remain loyal to the State. Thereafter twice attempts were made by the Rulers of Kotah State to resume the Jagir. The first was in 1852 on the ground that half of the debt of Pt. Ramchandra had been paid up by the Jagir income and the remaining half would be repaid in yearly instalments of Rs. 50,000/- each. The British Government intervened and the Agent to the Governor General conveyed to the Political Agent, Harot by his letter dated 27.9.1954 that His Highness should either maintain the Jagir in perpetuity to Lallajee Pandit or pay in full the original sum without deduction oh account of revenue intermediary derived from the lands. This letter is Ex. E on the record. It appears that on this the Ruler of the Kotah State stayed his hands and did not resume the Jagir. | Again, in 1868, the Ruler of the then Kotah State ordered that the said villages be resumed on the ground that the debt had been paid up. This time also the British Government intervened and on 15.4.1868 the Political Agent took the view that the Darbar should not resume the villages except by payment to the creditors the amount of the original claim and that the income of the Jagir was only the payment of the interest of the Jagir. The Agent to the Governor-General also took the same view and the Political Agent was requested by the Agent to the Governor General to give due warnings to the Darbar that if he did not abide by the terms of the decision, the only course left open to the Agent to the Governor General) was to ask the Government to permit the Political Agent to assume direct control over the Jagir. The exhibits on this point are Exhibits F and G on record. The exhibits on this point are Exhibits F and G on record. It appears that this time also, the Ruler did not resume Jagir. 10. We may refer also to the history of the mutation of the Jagir villages. On the death of Pt. Ramchandra Rao, the Jagir was mutated in the name of Pt. Govid Rao but later on the name of Pt. Moti Lal was also entered in the record. On the death of Pt. Govind Rao, the name of Pt. Ganpat Rao was entered. 11. Before his death, Pt. Moti Lal had made a will which is in the form of letter dated Fagun Sudi 2, Samvat 1948, to the Political Agent—Major W.H.C. Wyile. A free translation of the relevant portion of the will is as follows:— "I have no natural issue. So I have kept Purshottam, aged 9 years, son of Pt. Mahadeo Govind, my nearest brother, from my family, with me with intention to bring him up and give him education. I give to you this intimation in writing that after my death action should be taken as settled in writing between myself and my elder brothers adopted son Pt. Ganpat Rao in Samvat 1935, in case no issue is born to me. i.e. Ganpat Rao will be deemed successor and heir of my elder brother and the boy Purshottam will be deemed my successor and heir. According to the Tehrir of Samvat 1935 all my movable property of Thikana Sarola may be equally distributed between them so that no trouble and dispute may arise between them. Five generations one after another of this Thikana have been serving the State of Kota faithfully and sincerely for more than hundred and fifty years. Looking to that the Government should take action for the safety and continuance of the Thikana. The management of the Thikana may be made through five old, experienced and honest persons of Thikana, under the supervision of the State. The Government should give respectful and kind treatment to both successors according to old customs and usages so that no harm may be done to the Thikana and it may remain intact and permanent by the kindness of the Government. Mitti Falgun Sudi Samvat 1948. Motilal." 12. The Government should give respectful and kind treatment to both successors according to old customs and usages so that no harm may be done to the Thikana and it may remain intact and permanent by the kindness of the Government. Mitti Falgun Sudi Samvat 1948. Motilal." 12. On 23.7.1892, the Ijlas Council of the Kotah State passed the following order— "In this case by the order dated 27th April, 1892 time was granted upto 15th June, 1892 and it was ordered that if Pt. Ganpat Rao admits the will word by word which has been made by the deceased Motilal, then the partition may be brought into effect according to it. Secondly, if there is any objection or claim to the will of Pt. Motilal, then enquiry will be made and necessary order will be passed. If, Pt. Ganpat Rao wishes he may write an agreement by 15th June, 1892 that he will manage properly the thikana property as regards income and expenditure etc. and also protect all the movable and immovable property of the Thikana so that there may be no waste of property and further that Purshottam Rao will be brought up like his brother till he becomes major and on becoming major if Purshottam Rao insists on partition, it will be done as desired by Pt. Motilal in his will. On writing such agreement this matter can be settled. The date fixed has passed. No agreement has been filed on behalf of Pt. Ganpat Rao as yet. Now some order must be passed in this case." Papers were submitted to the Political Agent. On this, the Political Agent on 6.8.1892 ordered that a list may be got prepared of all valuables of Pt. Ganpat Rao. Approval was also given that Pt. Ganpat Rao be asked to write an agreement as mentioned in the order of the Ijlas Council dated 27th April, 1892. It was, however, added that— "It may also be got written in the agreement that in no case the property of the Thikana will be allowed to be wasted and Purshottam Rao will be deemed major on attaining age of 19 years. Then he shall have a right either to live with Pt. Ganpatrao or to claim half share of the property from him (Pt. Ganpat Rao) by partition as per writing of Motilal. For the present Pt. Then he shall have a right either to live with Pt. Ganpatrao or to claim half share of the property from him (Pt. Ganpat Rao) by partition as per writing of Motilal. For the present Pt. Purshottam Rao may be sent to the Mayo College, Ajmer for education. The education expenses may be paid from Thikana by Pt. Ganpat Rao. Ijlas believes that Pt. Ganpat Rao will make proper management as desired and order-ed by the Ijlas." In pursuance of these orders, Pt. Ganpat Rao executed an agreement on Bhadwa Sudi, Samvat 1948, which is as follows— "I, Ganpat Rao, have executed this agreement that I shall make all management for the income and expenditure of the property as well as goods and articles. Nothing shall be allowed to be destroyed. During the minority of Purshottam Rao his expenses for maintenance, education and marriage shall be borne by me. On attaining majority if Purshottam Rao will desire to live separate, the property will be partitioned and he shall be allowed to live separate. I shall comply with the will executed by Pt. Motilal on Mitti Falgun Sudi 2, Samvat 1949. Mitti Bhadwa Sudi 10, Samvat 1949. Ganpat Rao" This agreement was kept on record after having been signed by members of the Council Ijlas and Political Agent on 1.9.1892. On 19.3.1910 the Sarola Jagir was mutated in favour of Pt. Ganpat Rao and Pt. Purshottam Rao. 13. Pt. Ganpat Rao died in the year 1925 and on 24.2.1926, the mutation was "effected in the name of Pt. Purshottam Rao and Pt. Chandrakant Rao, son of Pt. Ganpat Rao with the consent of Pt. Purshottam Rao. 14. In the year 1937, Pt. Purshottam Rao died, and on 22.1.1938 the mutation order was passed in favour of Pt. Chandrakant Rao and this order is the subject matter of controversy. In this order, the entire history of the mutation of the Jagir has been repeated. Looking to the importance of this document, its free translation in English is given below — "Revenue report dated 10th November 1937 perused. Old file of restoration and mutation entry as well as some documents presented now by Pt. Chandrakant have been seen. In this order, the entire history of the mutation of the Jagir has been repeated. Looking to the importance of this document, its free translation in English is given below — "Revenue report dated 10th November 1937 perused. Old file of restoration and mutation entry as well as some documents presented now by Pt. Chandrakant have been seen. The pedigree table of this family is, as under— Chandrakant Suryakant Laxmikant Jayantrao Krishnarao Vishwanath Ramchandra Ganpat Rao (came in adoption) Govind Rao Purshottam Rao (came in adoption) Motilal Ramchandra Rao Lalaji(came in adoption)Balaji Jaswant According to Samat Mitti Jeth Badi 12 Svt. 1894, the following villages which were in the Jagir or Udak of Pt. Ramchandra Lala s/o Pt Govind Rao since long have been restored (Bahal) in Jagir and ordered that his sons and grandsons will enjoy this Jagir: (1) Sarola, (2) Malenwasa (3) Chetawa, (4) Kakdra, (5) Chapakhur, (6) Swas, (7) Neem-ka-khera, (8) Lakhawa. In future it was ordered that Thikana Subhchintaki which this Thikana performed was to be continued and Barad except Hasil was exempted. Besides Govind Rao, Pt. Ramchandra Lala had one younger real son Motilal also. But his name does not appear in the said Sanad. Govind Rao and Motilal both died issueless. Hence Govind Rao adopted Ganpat Rao and Motilal adopted Purshottam Rao. In the order dated 19th March 1910 of Mahakma Khas names of both Ganpat Rao and Purshottam have been entered as having possession over the villages of the Jagir and the order for restoration has been given in their name. On the death of Ganpat Rao at the recommendation of Biledar of Thikana that according to custom, mutation entry is made in the name of the eldest son, Mahakma Revenue on30th August 1925 recommended the mutation entry be made in the name of Purshottam Rao. But on 20th February 1928 it was enquired from Pt. Purshottam Rao as to what objection he had in making mutation entry in the name of Chandra Kant elder son of Ganpat Rao as was done in the past. He gave his consent to the making of the mutation entry in the name of both. So mutation entry in the name of both was made in this office by the order dated 23rd February 1926. He gave his consent to the making of the mutation entry in the name of both. So mutation entry in the name of both was made in this office by the order dated 23rd February 1926. It will be proper to mention here that Purshottam Rao in whose favour mutation entry has been recommended by the Revenue Department was adopted son of Motilal and from junior branch. But he was considered elder due to his age. Though mutation entry has been made in the name of both by this office but Aijaz of Jagir and management remained in the name of Purshottam Rao alone. Now Purshottam Rao has died and the question of making mutation entry in his place has arisen. Pt. Chandrakant desires that according to custom of this state and other states of Raj-putana, mutation entry of the entire estate should be made in his name alone as he belonged to senior branch as well as was the eldest of all in age, while Krishna Rao, the eldest son of Purshottam Rao wants that his name should also be entered along with Chandrakant. It could not be found out by perusal of the Sanad as to why the practice of making mutation in the name of both brothers started in this Thikana after the death of Ganpat Rao when Ganpat Raos issues were present and they belonged to senior branch, The apparent reason is that Chandrakant Rao was minor at that time. There was harmony in the family. Purshottam Rao who was whole and sole (in the family) got written a report in his favour by Biledar and got entered his name. When a question arose he gave his consent to enter the name of Chandra Kant Rao son of Ganpat Rao also. Possession and management of Thikana remained with him. It appears from the above contents that no particular practice of mutation entry was established in the family. First of all mutation was entered in the name of one person of the family and thereafter it was even done in the name of two, but only one person continued to be recognized as the Head (Sarkerda) of the family as well as principal Jagirdar. The remaining members received maintenance being members of joint family. First of all mutation was entered in the name of one person of the family and thereafter it was even done in the name of two, but only one person continued to be recognized as the Head (Sarkerda) of the family as well as principal Jagirdar. The remaining members received maintenance being members of joint family. Now the question about this Jagir which is a of a special type and about which the Governor-Generals Agent in Rajasthan had admitted in his order dated 27.9.1854 that it had been granted to Pt. Ramchandra Lala in lieu of Farkhati for the debt of Rs. 9,27,384/15/6 and the Governor-Generals Agent had further ordered that it could be taken back on payment of amount of Farkhati to the person having possession as to what should be its shape in future and to when it should be given, whether it may be distributed amongst all members of Ram Chandras family? No doubt the last Sanad granted m the name of Ramchandra and his eldest son Govind Rao alone was granted on writing a Farkhati for the debt but when the unpaid debt was changed in the form of a Jagir and no special condition was laid down regarding it and the name of only the eldest brother was written in the Sanad, though another brother was present there, it will have to be held that this Jagir was intended to be given on the same rules on which the other Jagirs were granted. In fact mutation entry for the entire Jagir should have been made in the name of Chandrakant after the death of Ganpat Rao. Had this been done, the necessity of deciding the point at issue would not have arisen now. The principle of partition of the Jagir amongst all the lineal descendants of a common ancestor has not been followed so far because the shape and form of the Jagir would not remain by the partition of the Jagir, which ought to have remained, looking to the Aijaz (dignity) of the Thikana. On the contrary, there was possibility of its fragmentation due to its distribution into small pieces. There are seven co-sharers in the descendants of one common ancestor of this family. If this entire Jagir is distributed amongst them, then even the name of the Thikana will disappear. On the contrary, there was possibility of its fragmentation due to its distribution into small pieces. There are seven co-sharers in the descendants of one common ancestor of this family. If this entire Jagir is distributed amongst them, then even the name of the Thikana will disappear. According to the custom of the States in Rajputana as well as in this state, the mutation entry is made in the name of the eldest son of the senior branch. The junior members have only a right to maintenance. The Thikanas are in existence because of this principle alone, otherwise no Thikana can last for long. Hence, to keep this Thikana in existence the custom and usage of other Thikanas in this state shall have to be enforced. Therefore, His Highness orders that mutation of this entire. Jagir be made in the name of Pt. Chandrakant and (he) conferes on him the status of Jagirdar. The younger real brothers of Pt. Chandrakant and his cousin brothers sons of Pt. Purshottam shall have a right to get maintenance from this Thikana and Pt. Chandrakant will make proper arrangement for their maintenance. No Lag or Chakri has been fixed for this Thikana as per Sanad Jeth Badi 12, Svt. 1894 and it appears from a perusal of copies of Sanads granted prior to this Sanad which have been filed by Pt. Chandrakant that no Lag or Chakri had been levied even in the past. As discussed above, this so happened because this Jagir was of a special type. Otherwise Thikanas existing in this state are bound by custom to give Lag or render Chakri or either of the two. Now when this Thikana is being given a proper shape, its custom and status will be similar to that of other Jagirdars of this state. In such circumstances it would be proper to levy some Lag or Chakri on this Thikana also. As udak was also included in this Jagir previously and Barar was not leviable, no Lag shall be levied on it even now. But this Thikana shall have to give at least Chakri Choki for 3 months besides Chakri for four festivals as is being given by the other Thikanas and it will continue to do Subhchintaki as in the past. But this Thikana shall have to give at least Chakri Choki for 3 months besides Chakri for four festivals as is being given by the other Thikanas and it will continue to do Subhchintaki as in the past. Ordered tkat—Jagir Thikana Sarola may be restored in the name of Pt Chandrakana Rao on condition of performing Chakri-chowki for 3 months besides Chakri on 4 festivals and loyalty. Nazrana for mutation entry and Matmi which is generally realised as fees Kabuliyat Virasat Jagir from big Jagirs shall be leviable as Rs. 3,000/- and Rs. 300/-respectively. Returned in original through Accounts Department. Bakshi Khana may be informed through the Private Secretary. Thikana may also be informed." 15. According to the learned District Judge, the effect of the order dated 22.1.38 was that the rule of primogeniture was applied to Sarola Jagir and mutation was effected in the name of Pt. Chandrakant Rao. Payment of taxes continued to remain exempt but some sort of service was levied and a sum of Rs. 3,000/- was fixed as Nazarana for mutation. This order according to the District Judge deprived the plaintiffs of all the Jagir property and they were entitled only to maintenance. Before the District Judge there was controversy whether the order by the ruler of the Kotah State had been signed by the ruler or not but before us there is no such controversy as it is admitted that this order had been signed by the ruler. 16. The learned District Judge decided the preliminary issues 1, 2, 2A, 3 and 4 against the defendants solely on the basis of the order dated 22-l-1938(Ex.B). 17. The case of plaintiffs that the Sarola Jagir had been granted by the Kotah Darbar for the purpose of recovery of interest of the debt of Rs. 9,27,354-15-6 and the debt remained un-discharged has not been the subject matter of a separate issue but the trial court has expressed the view that the said debt was discharged in full as the grant of Sarola Jagir with all sorts of exemptions of taxes was made in consideration of the debt. 18. It was contended before us by the learned counsel for the plaintiff-appellants that this conclusion of the learned District Judge is not correct. We are, however, of the view that on the documents on record there is no room to take a contrary view. The farkhati (Ex. 18. It was contended before us by the learned counsel for the plaintiff-appellants that this conclusion of the learned District Judge is not correct. We are, however, of the view that on the documents on record there is no room to take a contrary view. The farkhati (Ex. C) was executed by Pt. Govind Rao Ram Chandra and it clearly shows that the creditor had discharged the debtor of all the outstanding liabilities. It is clearly mentioned in this document that Pt. Govind Rao Ram Chandra had given a complete discharge of their claims and had un-equivocally declla-red that all the documents bearing on the subject of debt were revoked and annulled. The Sanad (Ex.A) granted by the Darbar also mentions clearly that the creditors had given a release for all the claims against the state incurred from the time of Maharaja Zalim Singh to that of Muddan Singh ending up to Jeth Budi 12, Samvat 1894 and the Jagir in perpetuity was being conferred in lieu of that. So far as this finding is concerned, we agree with the learned District Judge. 19. The important question, however, remains whether Sarola Jagir was partible or impartible amongst the members of the family of Pt. Ramchandra Lala. According to the plaintiffs, it was a partible Jagir which was liable to partition between the members of the joint family. The learned District Judge has not categorically taken the view that this Jagir was not partible either when it was granted or at any time before 22.1.38 where law order Ex. B was passed. The view taken by the learned District Judge may be gathered from his following observations: — "Whatever may have been the pratice prior 22.1.38, the property was granted as a Jagir in perpetuity, with the new conditions and new concessions on 22.1.38 and all the incidents and to characteristics of the Jagir naturally applied to it, as regularised by the order." 20. We have examined the documents filed by the parties with due care and attention and we are of the view that looking to the history of the mutation and the will of Pt. Motilalj and the agreement of Pt. Ganpatrao, prima facie the Jagir was treated as property of the joint family at all material times before 22-1-38, though always care was taken that partition of it should be avoided, if possible. 21. Motilalj and the agreement of Pt. Ganpatrao, prima facie the Jagir was treated as property of the joint family at all material times before 22-1-38, though always care was taken that partition of it should be avoided, if possible. 21. The view of the trial court appears to be that the Jagir had become impartible by the order dated 22.1.1938, and since all other movable and immovable properties formed part of the Jagir, they also became impartible. It is to be examined how far this view is correct. 22. After the death of Pt. Purshottam Rao, Pt Chandrakant Rao appears to have put in an application that mutation may be made in his favour. The Revenue Commissioner of the Kotah State submitted his report dated 10.11.1937 to the Mahakma Khas, Kotah, and the Mahakma Khas passed the order (Ex. B) on 22.1.1938 and it is signed by His Highness the Maharao of Kotah. This order has been quoted in extenso in the opening part of the judgment. The previous history of the grant of the Jagir is given in the order. Even in stating the history a twist is given to the facts by saying that though mutation was sometimes done in the name of two persons yet only one person continued to be recognised as a sort of karta of the family as well as the principal Jagirdar and the remaining members received maintenance being members of the joint family. A presumption was drawn that the Jagir when it was given was intended to be given on the same terms which were applicable to other Jagir grants. It was also stated that after the death of Pt. Ganpatrao, mutation entry for the entire Jagir should have been made in the name of Pt. Chandrakant Rao. It was also stated that the principle of partition of Jagir amongst all the lineal descendants of ancestors had not been followed so far because the shape and form of the Jagir would not have remained the same by partition, and for the dignity of the Thikana, the maintenance of the Jagir in the same shape and form was necessary. The important part of the order which follows may be again referred to. The important part of the order which follows may be again referred to. "According to the custom of the states in Rajputana as well as in this State (Kotah), the mutation entry is made in the name of the eldest son of the senior branch. The junior members have only a right to maintenance. The Thikanas are in existence because of this principle alone, otherwise no Thikana can last. Hence, to keep this Thikana in existence the custom and usage of other Thikanas in this State shall have to be enforced. Therefore, His Highness orders that mutation of this entire Jagir be made in the name of Pt. Chandrakant and that he confers on him the status of Jagirdar. The younger real brothers of Pt. Chandrakant and his cousin brothers sons of Pt. Purshottam Rao shall have a right to get maintenance from this Thikana and Pt. Chandrakant will make proper arrangement for their maintenance." Then again, "Now when this Thikana is being given a proper shape, its custom and status will be similar to that of other Jagirdars of this State. In such circumstances it would be proper to levy same Lag or Chakri on this Thikana also." Chakri chowki were imposed but other levies were exempted. 23. As pointed out, earlier, this order was passed by the then Ruler, and even the plaintiffs have conceded in Para 14, of their plaint that the then Ruler of the State of Kotah illegally and improperly admitted Pt. Chandrakant Rao to be the sole owner of the said Jagir by his order dated 22.1.38 with a view to escape all the liabilities of the debt, and further it is stated that all the rights of the plaintiffs were improperly extinguished. Learned counsel for the plaintiff-appellants has challenged that this order is not binding on the plaintiffs for the following reasons. Learned counsel for the plaintiff-appellants has challenged that this order is not binding on the plaintiffs for the following reasons. (1) That this order was passed in mutation proceedings which were of a summary nature, and any order passed in such proceedings cannot be treated as binding on the parties in a regular suit; (2) That the aforesaid order was passed ex-parte without notice to the plaintiffs; (3) That His Highness had merely signed the order dated 22.1.38 in a formal manner and never intended to change the nature of the Jagir which was treated always to be of the joint family; (4) That the aforesaid order at the most was a prohibition against partition of the Jagir land but did not in any way affect the rights of the members of the joint family to enjoy the Jagir in accordance with their shares; (5) That in any case the aforesaid order did not affect the other joint family properties. 24. According to Circular No.1 of the Mehkma Khas, Sigha Mal dated 4.10.1923, which has been placed before us mutation of salim dihat jagir is to be made by order of the Mahakma Khas. There is no doubt that the case which led to the passing of the aforesaid order was for making the mutation entry. Sec. 17 of the Circular empowered the Mahakma Khas to pass order in respect to Dakhil Kharij of Salim Dihat Jagir (Mutation entry regarding the entire village of Jagir). It is not mentioned in the circular that such order will be only a summary order. The learned counsel for the plaintiff-appellants has urged that making of entry necessarily is an order of summary nature. He has placed reliance on Thakur Nirman Singh vs. Thakur Lal Rudra Partab Narain Singh(l). In the Privy Council case, Lal Bahadur Singh had filed an application under the provisions of Secs. 61 and 62 of the Oudh Land Revenue Act 17 of 1876, praying that as he had performed the funeral rites of his deceased father, mutation of name in respect of his fathers estate might be made in his favour. An order was passed by the Extra Assistant Commissioner of Bahraich on 1.6.1882 that the name of the eldest son Lal Bahadur be written in column of lambardar and the names of (the deceaseds) younger sons shall be written in place of the deceased as co-sharers. An order was passed by the Extra Assistant Commissioner of Bahraich on 1.6.1882 that the name of the eldest son Lal Bahadur be written in column of lambardar and the names of (the deceaseds) younger sons shall be written in place of the deceased as co-sharers. Lal Bahadur was dis-satisfied with this order and appealed to the Deputy Commissioner of Bahraich who accepted the appeal and cancelled part of the order. It was mentioned that the order will not debar the younger brothers from claiming their share in the estate, should at any time such a course appear to either of them advisable. It has been observed in this case—by their Lordships of the Privy Council—with respect to the judgment of the Court of the Judicial Commissioner Oudh that it: "was based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding, in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid." We are dealing here with Circular No. 1 of Kotah State which vested jurisdiction in the Mahakma Khas to pass order about mutation in case the entire village was in Jagir. No provision of law has been cited that such an order is to be treated as a summary order. Mutation proceedings in respect of State grants may, unless otherwise shown, be deemed to decide the right to succeed to the grant finally and an order in the mutation proceedings relating to State grants cannot be treated as a summary order. 25. Even if the Mahakma Khas was exercising summary jurisdiction in making the mutation entry, it would be difficult for us, looking to the nature of the order passed, to hold that this order was not to be treated as final so far as the nature of the Jagir was concerned. 25. Even if the Mahakma Khas was exercising summary jurisdiction in making the mutation entry, it would be difficult for us, looking to the nature of the order passed, to hold that this order was not to be treated as final so far as the nature of the Jagir was concerned. Here we are faced with an order of a Ruler of the State who had unfettered power to recognize any person as jagirdar or to grant it afresh to any other person. Even in the mutation proceedings, the Ruler could pass any order declaring the Jagir to be partible or impartible and laying down any other conditions with regard to it. The power of the ruler of the Kotah State was absolute and was in no way controlled. With regard to the firmans of the Nizam, who was Ruler of Hyderabad, their Lordships of the Supreme Court observed in Ameer-un-Nissa Begum vs. Mahboob Begum (2). "The determination of all these questions depends primarily upon the meaning and effect to be given to the various Firmans of the Nizam which we have set out already. It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; nay, they would override all other laws which were in conflict with them. So long as a particular Firman held the field, that alone would govern or regulate rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed." The same view was again taken in regard to the nature of the Firmans of the Nizam and it was at the time absolute ruler and could do what he pleased and that his will as expressed in the Firman was the law of the land. In Madhaorao Phalke vs. State of Madhya Bharat (now Madhya Pradesh) (3), the same view was reiterated by Gajendragadkar, J. with regard to Kalambandis issued by the ruler of Gwalior. In Madhaorao Phalke vs. State of Madhya Bharat (now Madhya Pradesh) (3), the same view was reiterated by Gajendragadkar, J. with regard to Kalambandis issued by the ruler of Gwalior. In the Nathdwara case reported in Tilkayat Shri Govind Lalji Maharaj etc. vs. State of Rajasthan &c. (4), it was observed with respect to the order passed that the Maharana of Udaipur was an absolute monarch and it was difficult to make any distinction between an executive order passed by him or a legislative command issued by him and any order issued by such a ruler had the force of law and governed the rights of parties affected thereby. 26. Thus, whether the matter arose in summary proceedings or otherwise, in the instant case, the ruler of Kotah State determined the nature of the grant and his order was final and fully effective. Whether passed in the executive or judicial capacity, that order determined the nature of the rights and the parties cannot be permitted to question that order or to go behind that order. 27. Next it is contended that nobody on the side of the plaintiffs granted any hearing in the matter and the Ruler failed to follow the principles of natural justice in passing aforesaid order. The ruler was the absolute monarch. He was not bound by any principles, whether of natural justice or otherwise. He could have taken away the entire Jagir and conferred it on any person without hearing anybody. The order of such a ruler cannot be questioned on the ground that he had not given any hearing to a party. 28. Learned counsel for the plaintiff-appellants then argued that the order dated 22.1.1938 was merely formally signed by His Highness. Reliance in this connection is placed on the observations of their Lordships of the Supreme Court in Umraosingh Ajitsingh vs. Ajit Singhji Bhagwati Singh Balbir Singh minor &c. (5). We do not find any sufficient reason for giving effect to this contention. Here was a case in which the ruler had determined for the future the nature of the Jagir and it cannot be said that in the absence of any evidence such an order was signed by His Highness merely formally without giving any consideration to the matter. 29. Here was a case in which the ruler had determined for the future the nature of the Jagir and it cannot be said that in the absence of any evidence such an order was signed by His Highness merely formally without giving any consideration to the matter. 29. It is then contended that an executive authority could not have interfered with the property of any person without supporting his action in law and that the executive authority was bound to observe the rules of law. Reliance in this connection is placed on Eshugbayi Elekko vs. Officer Administering the Government of Nigeria (6). In the Privy Council case, the Governor of Nigeria directed a native chief to leave the colony. In that case, their Lordships of the Privy Council made the following significant observations: "The Governor acting under the Deportation Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of the British justice that Judges should not shrink from deciding such issues in the face of the executive." These observations have been made with respect to the powers of a Governor who was acting under a particular Ordinance and cannot be construed to be applicable to a case in which an absolute ruler is acting in his own discretion. The other case relied upon is Thakur Jai Singh vs. Tehsildar Neem-Ka-Thana (7). In that case, fine of Rs. 10,000/- was imposed on a certain Jagirdar by the ruler of the former State of Jaipur on account of illegal distillation of liquor by him. At the time of passing the order, the Act of the former Jaipur State was in force. Interpreting the provisions of that Act, it was held that the ruler of the Jaipur State could not have passed that order in his executive capacity. It was also pointed out that it was not an executive order relating to a subject which was excluded under sec. 27 of the Government of Jaipur Act. Interpreting the provisions of that Act, it was held that the ruler of the Jaipur State could not have passed that order in his executive capacity. It was also pointed out that it was not an executive order relating to a subject which was excluded under sec. 27 of the Government of Jaipur Act. In this connection, the following observations were made: "Now, if it was an executive order relating to a subject excluded under sec.27 of the Govt. of Jaipur Act it might have been justified on the ground that it was the order of a sovereign in relation to an excluded subject and had to be carried out. It seems to us that a recommendation was made to the sovereign for confiscation of part of the jagir because jagirs were an excluded subject under sec. 27(e). If His Highness the Maharaja had accepted that recommendation and confiscated a part of the jagir, it might have been possible to justify it as an executive order with reference to an excluded subject; but His Highness did not pass an order confiscating the jagir, What he did was to impose a fine of Rs. 10,000/- on the applicant. We can find no warrant for such an order being passed by His Highness the Maharaja of Jaipur in April, 1949, when the Government of Jaipur Act, 1944, was in force. The power to impose a fine for illicit distillation is only conferred under sec. 21 of the Jaipur Excise Law, and such a fine can only be imposed by a court of law and not by His Highness the Maharaja of Jaipur, even though he was the sovereign Ruler of Jaipur on that date." This case is clearly distinguishable as it was based on the interpretation of the Government of Jaipur Act which did not exclude the sovereign power of imposing fine as being outside the provision of that Act. We are therefore, of the view that the order (Ex. B) dated 22.1.1938 is binding on the parties. 30. Let us now examine the effect of the order. We are therefore, of the view that the order (Ex. B) dated 22.1.1938 is binding on the parties. 30. Let us now examine the effect of the order. By this order, His Highness the Ruler placed the Jagir in question on the same footing as the other Jagirs in the State and proceeded to observe that mutation may be made of the entire Jagir in the name of one person who alone will be Jagirdar and the other brothers will have only the right of maintenance. In our opinion, the only inference that has been drawn from this order is that the Jagir was deemed to be impartible and the other persons, except that Pt. Chandrakant Rao, could get only maintenance. The plaintiffs were only entitled to get maintenance and not any share whether by partition of the Jagir or from the income of the Jagir. Thus the contention of the learned counsel that the plaintiffs were entitled to recover their share in the income of joint family property or in the compensation now awarded under the Jagirdari Resumption Act is not sound. 31. We, however, accept the contention of the learned counsel for the plaintiff-appellants that the aforesaid order cannot be extended to cover the other property of the family. The order does not say so expressly. No inference can be drawn to that effect even by implication. The intention of the order is clear enough. It was to make the village impartible granting the junior members only the right to maintenance. It cannot be construed as taking away all rights of the members of the family in the other properties, movable or immovable. The view of learned District Judge is contained in the following observations: "The order of 22.1.38 conferred not only the villages, but the villages together with the other property which is the subject of the plaint. Defendant No. 1 came into possession of it by that order. The plaintiff never showed that there was anything separate from the Jagir. No differentiation between Jagir property and private property has been made in the plaint. The plaintiff calls the entire property which is Jagir property as joint family property and undoubtedly the plaintiffs were deprived of the whole of the said property by the order of 22.1.38. The plaintiff never showed that there was anything separate from the Jagir. No differentiation between Jagir property and private property has been made in the plaint. The plaintiff calls the entire property which is Jagir property as joint family property and undoubtedly the plaintiffs were deprived of the whole of the said property by the order of 22.1.38. Whatever may have been the practice prior to 22.1.1938, the property was granted as a Jagir in perpetuity, with the new conditions and new concessions on 22.1.1938 and all the incidents and characteristics of the Jagir naturally applied to it, as regularised by the order." 32. We are of the view that these observations are wrong. Of course, the plaintiffs stated that the Jagir and the other properties both were of the joint family but it is not to be inferred that if the plaintiffs are not held entitled to the Jagir property, they cannot lay any claim to the other property mentioned in the plaint. We also do not find anything in the order of 22.1.1938 depriving the plaintiffs of the whole of the property. The plaintiffs if they succeed in proving that the other property claimed by them was joint family property and their claim is within limitation, are entitled to get a share in such property. Their claim cannot be dismissed simply on the basis of the order dated 22.1.1938. All the movable and immovable property which was of the joint family before 22.1.38 cannot be deemed to have lost its character of being joint family property because the Jagir was held to be impartible in future by order of the Ruler The Ruler never said so and it has not been decided by the trial court on the evidence that the members of the joint family treated it as impartible. Merely because Sarola Thikana is impartible, it cannot be said that the other property had also become impartible. It may be pointed out that even with regard to the property purchased from the income of the impartible estate, it is not to be necessarily inferred that such property is an accretion to the estate. We need not refer to the entire case law on the point. We may make a passing reference to the case of Shiba Prasad Singh vs. Rani Prayag Kumari Debi & c. (7) in which a number of cases on this point are referred. We need not refer to the entire case law on the point. We may make a passing reference to the case of Shiba Prasad Singh vs. Rani Prayag Kumari Debi & c. (7) in which a number of cases on this point are referred. If any question arises at the trial on this aspect of the matter the trial court will examine it and decide it in accordance with law. 33. The trial court has held that the suit is not cognizable by a civil court. For this the following observations of their Lordships of the Supreme Court in Umraosingh Ajitsingh vs. Bhagwati Singh Balbir Singh (5) have been relied on— "The Maharao of Kotah was admittedly the sole arbiter and the ruler of Kotah passed the order dated 2.1.38 which he was fully entitled to pass and that after the formation of Rajasthan, that power passed on to the Rajpramukh and the present suit was filed prior to the formation of Rajasthan State and therefore the civil court has no jurisdiction to entertain it. In this case, besides the Jagir villages, the contention of the plaintiffs is that the family possessed other movable and immovable properties. The claim for the partition of that property is clearly cognizable by a civil court, unless of course the view is taken that that property also became Jagir property. On the material on record we do not find any ground to hold that the other properties had become part of the Jagir by the order dated 22.1.1938. Except the order, no other material has yet come on record to show this, as the case has not been disponed of on merits. We are, therefore, unable to agree with the judgment of the learned District Judge that the suit for partition of the other movable and immovable property except the Jagir villages is not cognizable by the civil court. 34. The learned Judge has also held while deciding issues No. 2 and 2-A that the suit of the plaintiffs is barred by time. He held that the proper Article applicable was Art.14 of the Indian Limitation Act, 1908 which applies to a case in which the prayer is to set aside the sale in execution of a civil court and prescribes one years limitation from the date of the Act or order. He held that the proper Article applicable was Art.14 of the Indian Limitation Act, 1908 which applies to a case in which the prayer is to set aside the sale in execution of a civil court and prescribes one years limitation from the date of the Act or order. If the order dated 22.1.38 does not cover the other movable and immovable properties as held by us, the plaintiffs need not make a prayer for setting aside the order dated 22.1.1938 for partition of that property. The proper Article is Art. 127 of the Indian Limitation Act, 1908 which is applicable to a suit by a person excluded from joint family property to enforce a right and the limitation is 12 years when the exclusion becomes known to the plaintiff. 35. Issue No 4 holding the suit as barred by res judicata has also been wrongly decided by the trial court. It has held that the principle of res judicata was applicable as the rights of the parties must be held to be determined by the order dated 22.1.38. So far as the claim of the plaintiffs with respect to their share in the movable and immovable properties, except the Jagir village, is concerned we do not find that the doctrine of res judicata is attracted in this case. 36. As a result of the aforesaid discussion, the appeal is partly allowed and the decree of the trial court is maintained so far as the suit relates to the partition of the Saroda Jagir, i.e. of the eight villages, namely, (1) Sarola ; (2) Chasawa ; (3) Charnpakhur,; (4) Malanwas ; (5) Kankarda ; (6) Lakhambha ; (7) Sanwas ; and (8) Neem ka Kheda or of the compensation payable therefor. The decree is also maintained for the dismissal of the suit relating to the money part of the claim of Rs. 4,63,682/7/9. The rest of the decree is set aside and the case is remanded to the trial court for deciding the rest of the claim of the plaintiffs on merits in accordance with law. The plaintiffs shall pay one fourth of the costs taxable on the money part of the claim to the State of Rajasthan in this Court as well as in the lower court. The plaintiffs shall pay one fourth of the costs taxable on the money part of the claim to the State of Rajasthan in this Court as well as in the lower court. So far as the other parties are concerned, they shall bear their own costs in this Court as well as in the trial court.