JUDGMENT 1. - The facts giving rise to this petition, in brief, are as follows:- The petitioner is the wife of Kanwar Amar Singh, the eldest son of Rawal Jorawar Singh of Jasol, one of the leading jagirdars of the erstwhile State of Jodhpur. Rawal Jorawar Singh was the holder of the jagir of Jasol on Bhomichara tenure. The petitioner alleges that on 1.8.1933,her father-in-law by means of a patta bearing the seal of his thikana made a grant of village Sahu Lachhiramani in her favour and thereafter she was in enjoyment of the rents and profits thereof upto the date of resumption. She further alleges that the grant was regularised by a formal deed dated 6.11.1951, which was registered on 17.12.1951. It appears that in the meanwhile, Rawal Jorawar Singh made a similar grant in favour of Smt. Jadav Kanwar, wife of one of his grand sons by a patta dated 14.5.1946. 2. The jagir of jasol including the village Sahu Lachhiramani was resumed on 13.9.1956 by virtue of the Rajasthan Land Reforms and Resumption of Jagir Act. Section 26 of the Act cast a duty on the Govt. to pay compensation to every Jagirdar whose jagir lands were resumed under section 21. Section 21 provides that every jagirdar whose jagir land has been resumed under Section 21, shall, within two months from the date of the notification issued under that section, file, in the prescribed form, a statement of claim for compensation before the Jagir Commissioner. The Jagir Department was, however, not prepared to pay compensation on the basis of unsettled income and, therefore, Rawal Jorawar Singh along with other jagirdars filed a writ petition in the High Court which was allowed on 19.1.1959: See Pratap Singh v. The State of Rajasthan ILR (1959) 9 Raj. 413 . The High Court held that the compensation should be worked out on the basis of the income from the unsettled income. 3. On 14.3.1959, the ex-jagirdar Rawal Jorawar Singh, the petitioner Smt. Basant Kanwar and her six sons i.e. his grandsons, along with Smt. Jadav Kanwar, his grand daughter in law, in whose favour he made similar grants, filed that their statements of claim under section 31 of the Act on the basis of unsettled income. 3. On 14.3.1959, the ex-jagirdar Rawal Jorawar Singh, the petitioner Smt. Basant Kanwar and her six sons i.e. his grandsons, along with Smt. Jadav Kanwar, his grand daughter in law, in whose favour he made similar grants, filed that their statements of claim under section 31 of the Act on the basis of unsettled income. Meanwhile, on 11.3.1959, the petitioner's husband Kanwar Amar Singh had filed an application to the Jagir Commissioner under section 26A of the Act for recognition of the transfers. The Deputy Collector (Jagirs) Jodhpur, by his report dated 5.5.1959 recommended that the chhutbhaies i.e. grand sons, should be recognised as sub-grantee and treated as independent jagirdars of their respective villages. The Jagir Commissioner, however, by his order dated 30.6.1959 allowed the claim of the petitioner as well as of her sons. The Board of Revenue, by its order dated 11.6.1965 remitted the case to the Jagir Commissioner on the ground that he had failed to apply his mind to the claim preferred by the petitioner. The Board directed the Jagir Commissioner to examine her claim under section 26A of the Act and to proceed further in accordance with law after giving an opportunity of being heard to both the parties. On remand, the Jagir Commissioner held, on the basis of the rental income of village. Sahu Lachhiiramani of Rs. 291.87P & other income, that is Rs. 12,737.15P was payable to the petitioner as compensation. The Board of Revenue, by its order dated 26.3.1969, allowed the appeal preferred by the State Government and held that the petitioner had failed to establish her claim. 4. The Board of Revenue negatived the claim of the petitioner holding that she was not able to establish the presence or existence of any right of woman for grant of such jagirs and the then law of Jodhpur State was definitely against this practice. It accordingly found that the claim of the petitioner was not a bonafide one, but was an after thought. It further held that the Jagir Commissioner had committed a serious error in recognising her claim, when the Deputy Collector (Jagirs) report dated 4.5.1952 had found that the main basis of the Jagir Commissioner's decision did not contain the name of the petitioner, and, in fact, it omitted it. It further held that the Jagir Commissioner had committed a serious error in recognising her claim, when the Deputy Collector (Jagirs) report dated 4.5.1952 had found that the main basis of the Jagir Commissioner's decision did not contain the name of the petitioner, and, in fact, it omitted it. The conclusion reached by the Board were:- i) He could not establish or prove from any of the rules, practices usage or orders of the former Jodhpur State that ladies were recognised as separate and independent Jagirdars. The then Jodhpur State only recognised Patwi sons after the death of the Jagirdar as rightful claimants and the other sons as maintenance holders and women had absolutely no independent status. ii) They were considered utmost as maintenance holder and no more. Women thus had no right to be treated more than maintenance holders and their right to maintenance is recognised and paid for under section 27 of the Jagir Act. iii) The Revenue Records also did not show the present respondent entered as an independent Jagirder at the time of resumption. She got her name in the Settlement Department parcha entered for the first time on 21.7.1960 i.e. almost four years after the resumption of the Jagir on 12.9.1956. iv) When this Jagir was resumed on 12.9.1956, the respondent did not object to the resumption of her lands. v) The main Jagirdar Shri Amar Singh claimed and actually received compensation of his thikana without excluding the grant and without showing to be a separate Jagir. The respondent never mentioned how much was the area of grant of her in Hals and bighas and what was its cash income or land revenue. vi) There was no mention of this area anywhere recorded apart from that of the main Jagirdar and she filed her claim for the first time on 14.3.1959 i.e. almost three years after the resumption of the main Jagir. vii) Section 195 of the Marwar Land Revenues Act 1949 also did not recognise grants made in favour of females. 5. In our opinion, the order of the Board of Revenue cannot be sustained. We fail to appreciate the reasoning of the Board that the petitioner's claim must fail because of section 195 of the Marwar land Revenue Act, 1949. vii) Section 195 of the Marwar Land Revenues Act 1949 also did not recognise grants made in favour of females. 5. In our opinion, the order of the Board of Revenue cannot be sustained. We fail to appreciate the reasoning of the Board that the petitioner's claim must fail because of section 195 of the Marwar land Revenue Act, 1949. If the petitioner's father in law Rawal Jorawar Singh had, in fact, executed the patta dated 1.8.1933, the validity the patta would not be affected by subsequent enactment of the Marwar Land Revenue Act, 1949, unless there was a corresponding law then in force in the erstwhile Jodhpur State analogous to sections 195 or 198 of the Acts. No doubt, the Act, as its long title reads, is an Act to consolidate and amend the law relating to tenancies and other matter connected therewith. But no law has been brought to our notice, which prohibits the holder of an unscheduled jagir like Jasol from making a transfer to a person other than a male lineal descendant i.e. a female. The Act is not retrospective in operation. If the patta dated 1.8.1933 executed by Rawal Jorawar Singh was a genuine document, it could not be invalidated under section 195 read with section 198 of the Act. These provisions would only invalidate the registered instrument dated 17.12.1951. The Board of Revenue has not applied its mind to this aspect. 6. In Thakur Amarsingh v. State of Rajasthan AIR 1955 SC 504 , their Lordships of the Supreme Court have traced the history of the bhomichara tenure and held that the jagirdar of Jasol had no higher status than that of a jagirdar under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and derived his title under an implied grant from the Maharaja of Jodhpur. 7. In dealing with the classification of jagirs under the Marwar land Revenue Act, 1949, their Lordships observed:- "The scheme of the Act is that for purposes of succession and partition, jagirs are divided into three groups, scheduled jagirs, listed jagirs and other jagirs. Scheduled jagirs are those which are governed by the rule of primogeniture. Section 188 and the following sections lay down the procedure for setting succession to them. Scheduled jagirs are those which are governed by the rule of primogeniture. Section 188 and the following sections lay down the procedure for setting succession to them. Listed jagirs are those which are held by co-heirs but are impartible, and section 131 provides that they should not be partitioned but that the income therefrom should be divided among the co-sharers. Then there is the third category of jagirs which devolve on heirs under the ordinary Hindu law, and are partible. Section 172 applies to these jagirs. As the Bhomichara tenure descends like personal property and is divisible among the heirs, it will be governed by section 172, and cannot find a place in the schedule of listed or scheduled jagirs." 8. It is difficult to reconcile with the conflicting decision of the Board of Revenue. In its earlier decision, it recognised the grant made by the petitioner's father in law Rawal Jorawar Singh in favour of her daughter in law Smt. Jadav Kanwar. The arguments advanced in that case were more or less similar namely, it was urged that in tehsil Pachpadra when settlement operations were carried out in 1954-55 the name of Smt. Jadav Kanwar did not appear in the settlement record as a sub grantee. In negativing the contention, the Board upheld the order of the Jagir Commissioner observing that the sub-grant in favour of Smt. Jadav Kanwar was recognised by the Deputy Collector (Jagir) Jodhpur on her producing the patta dated 14.5.1946 and the settlement entries rectified subsequently in her name under the orders of a competent court. We fail to see that, if in the case of Smt. Jadav Kanwar the Board held that there was a family custom in the thikana of Jasol of making grants to Zenana Sardars and acted on the basis of the settlement entries in her favour corrected under the orders of the competent court in a suit bought for declaration by her against Rawal Jorawar Singh, what was the basis for adopting the different standard in the case of the petitioner. 9. The other ground mentioned by the Board of Revenue also does not bear any scrutiny. 9. The other ground mentioned by the Board of Revenue also does not bear any scrutiny. The delay on the part of the petitioner in filing her statement of claim that the matter as to whether compensation was to be granted to the jagirdars on the basis of unsettled income or not by the Act was pending consideration of the High Court in a writ petition filed by Rawal Jorawar Singh. The decision of the High Court reported in Pratap Singh v. The State of Rajasthan & others ILR (1959) 9 Raj. 413 was given on 19.1.1959. The statements of claim by Rawal Jorawar Singh, the petitioner, her six sons and her daughter in law Smt. Jadav Kanwar, were all filed on one and the same date i.e. 14.3.1959. It cannot, therefore, be said under the circumstances, that there was delay, much less unreasonable delay on the part of the petitioner in making her statement of claim under section 31 of the Act. Section 31 of the Act, no doubt, prescribes a period of two months from the date of the notification but the Jagir Commissioner had under the proviso, the power to entertain a claim submitted after the period prescribed. The statement filed others were all entertained, though filed beyond the period of two months. 10. The genuineness of the alleged patta dated 1.8.1933 was sought to be challenged before us along with the custom of Zanana Sardars. 11. Learned counsel for the petitioner, however, contends that neither the validity of the patta nor the existence of a family custom recognising Zanana Sardars can now be questioned. He drew our attention to the application dated 11.3.1959 by the petitioner's husband Kanwar Amar Singh wherein it was stated that:- " vykok blds esjh /keZ ifRu Jhefr clar dqaoj djkuh tks lxrkor th dks Hkh fBdkus ds fjokt ds ekfQd vkthfodk esa ,d xkWao vkSj cjs fn;s x;s ftldk igys tks fBdkus dk iV~Vk fd;k vkSj ckn esa blh ekfQd vkthfodk dks fyf[kr gS mldk Hkh lcwr esa tks/kiqj is'k dj nwaxk ----- fygktk xqtkfj'k gS fd bu thfodknkjksa dks tqnk tkxhjnkj 'kqekj Qjek;k tkdj ekU;rk iznku dh tk;A " 12. Our attention was further drawn to the finding of the Deputy Collector (Jagirs) Jodhpur dated 5.5.1959 on the basis of the patta Ex. Our attention was further drawn to the finding of the Deputy Collector (Jagirs) Jodhpur dated 5.5.1959 on the basis of the patta Ex. P/4, as also to others evidence that apart from Chhutbhaies, there was a family custom in the thikana of Jasol for making grants to Zanana Sardars. He also drew our attention to the admission made by the learned Government Advocate before the Jagir Commissioner, who observed:- " vejflag] vius c;ku esa ;g Hkh fy[kk;k gS fd fBdk.kk tlkSy esa tkuuk ljnkjksa dks vyx vkthfodk esa tkxhjsa nsus dk fjokt gS ftlds ekfQd gh mudh /keZ ifRu dks mudh 'kknh ds ckn gh vkthfodk ds fy, cjs o tehu nsdj muds uke ds iV~Vs dj fn,A----- fy[kr dks udyksa ds eqykfgts ls ;g Li"V gS fd NqV HkkbZ;ksa o tukuksa dks tkxhjsa caV esa nh xbZ gS] fy[kr 2007 ;kuh lu~ 1949 ds ckn jftLV~h gq, gS blds fy, budk dguk gS fd fy[kki<+h igys gks pqdh Fkh jftLV~h 2007 esa djkbZ xbZA " Nothing really turns on this. 13. The order of the Deputy Collector (Jagirs), Jodhpur dated 5.5.1959 was set aside by the Board of Revenue by its order dated 11.6.1965. Further, the finding of the Deputy Collector (Jagirs) was based upon a concession made by the learned Government Advocate that there was a family custom. Obviously, the State Government is not bound by his concession. The finding based on the concession has also been set aside. The Board of Revenue by its order dated 26.3.1969, held that there was no matter all to prove that any custom or usage existed in the jagir by which the Jagirdar could assign any part of the jagir in favour of a female relation. That finding cannot be challenged because us, in our order in D.B. Civil Writ Petition No. 554 of 1968. Smt. Awan Kanwar v. The Board of Revenue and others , delivered today, it has been held that the Board of Revenue in an appeal against the eventual award is entitled to go into the question. 14. It is, however, urged that the Board of Revenue has not applied is mind to the requirements of section 26A of the Act. Smt. Awan Kanwar v. The Board of Revenue and others , delivered today, it has been held that the Board of Revenue in an appeal against the eventual award is entitled to go into the question. 14. It is, however, urged that the Board of Revenue has not applied is mind to the requirements of section 26A of the Act. It is said that, even if the alleged grant dated 1.8.1933 was not proved, the Board had still to consider whether the registered instrument dated 6.11.1951 was executed by the main jagirdar in a normal course of management or in anticipation of resumption of his jagir lands. If it was a transfer made in due course of managements, then,it is said clearly the petitioner would be a grantee of jagir land and, therefore, come within the definition of a jagirdar under section 2(g) of the Act which is an inclusive definition. We are afraid, the contention cannot be accepted. In D.B. Civil Writ Petition No. 554 of 1968, Smt. Awan Kanwar v. The Board of Revenue , decided today, it has been held that the question of recognition of a grant does not arise unless there is a valid grant. The registered instrument dated 6.11.1951 executed by Rawal Jorawar Singh, the holder of the jagir, in favour of his daughter in law Smt. Bassant Kanwar, the petitioner, was clearly hit by section 195 of the Marwar Land Revenue Act and, therefore, was void and ineffective. 15. We are inclined to think that in the erstwhile State of Jodhpur, the institution of Zanana Sardars did not exist. Even if it were so, the main jagirdar could not confer on them any right, title or interest in the jagir lands. Their status would be only that of maintenance holders. No rule or law has been brought to our notice which shows that they would acquire the status of a jagirdar. The Zanana Sardars holding a village on grant had, therefore, to work out their rights under section 27 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and could not claim payment of compensation as a jagirdar under section 26 of the Act. These are all matters for the Board to consider. We, therefore, refrain from expressing any opinion on any of the questions in controversy. 16. The result, therefore, is that the petition succeeds and is allowed. These are all matters for the Board to consider. We, therefore, refrain from expressing any opinion on any of the questions in controversy. 16. The result, therefore, is that the petition succeeds and is allowed. The impugned order of the Board of Revenue is quadshed and it is directed to decide the appeal afresh, with advertence to the observations made above or it may, if it thinks necessary, remand the case to the jagir Commissioner for a proper enquiry and decision in accordance with law. No order as to costs. *******