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2000 DIGILAW 178 (RAJ)

Janki Devi v. Maniram

2000-02-11

RAJESH BALIA

body2000
Honble BALIA, J.–This appeal is directed against the Judgment and decree dated 31.3.1990 passed by the learned Additional District Judge, Raisinghnagar whereby the plaintiffs suit for declaration and partition of the suit property was dismissed. (2). The plaintiff-appellant filed a suit for declaration that she is one of the legal heir of deceased Buda Ram and Smt. Rajki Bai, her Parents and therefore, she is entitled to have 1/3rd share in their property. She has also prayed that the suit property be partitioned and she may be put in possession over her 1/3rd share. (3). The plaintiff-appellant has averred in the plaint that her parents deceased Buda Ram and Smt. Rajki Bai had two daughters namely, plaintiff Janki Devi and defendant No.2 Smt. Vimla Devi and one son defendant No.1 Mani Ram. They had left behind them certain agricultural land and a residential house at Anupgarh, which is situated in Ward No.9. Defendant-respondent No.3 is the husband of defendant No.2 Smt. Vimla Devi and defendants No.4 and 5 are her sons. It has been contended that defendants No. 2, 3, 4 and 5 have started ascertaining their claim over the property in question and have also entered into the possession of the house and are adamant in not giving 1/3 rd share of the property to the plaintiff, which has necessitated the filing of the present suit for declaration, partition and possession. It has also been pleaded that in their designs, the maternal uncle of Mani Ram has hatched a conspiracy to deny the plaintiff her rightful inheritance to the estate of her parents. (4). Defendant No.1 Mani Ram filed a separate written statement admitting the facts about the relationship of the parties and the claim of the plaintiff in respect of inheritance to their mother Rajki Bai. He denied the claim of the plaintiff in respect of inheritance from father Buda Ram on the ground that on 26.11.1970, the plaintiff and defendant No.2 Smt. Vimla Devi had relinquished their share in the property of their father in favour of defendant No.1 Mani Ram. Even the mother of the claimants had also relinquished her share in favour of defendant No.1 Mani Ram, in the property of her husband Buda Ram. However, defendant No.1 Mani Ram has supported the plaintiff to the extent she claimed her share in the inheritance to the property of his mother Smt. Rajki Bai. (5). Even the mother of the claimants had also relinquished her share in favour of defendant No.1 Mani Ram, in the property of her husband Buda Ram. However, defendant No.1 Mani Ram has supported the plaintiff to the extent she claimed her share in the inheritance to the property of his mother Smt. Rajki Bai. (5). Another written statement was filed by defendant No.4 Om Prakash. He has alleged that so far as the interest in the property of Buda Ram is concerned, plaintiff Jankibai and defendant No.2 Vimla Devi had relinquished their shares in the property by a registered Relinquishment Deed dated 26.11.1970 and, therefore, they had no share in the property of their father Buda Ram, to which they could claim. So far as the property left by Smt. Rajki Bai is concerned, it was asserted by defendant No.4 Om Prakash that Rajki Bai had executed a Will on 22.9.1987 in favour of answering defendant Om Prakash and, therefore, in respect of her mothers property, plaintiff Janki Bai could not make any claim. (6). The plaintiff-appellant filed a rejoinder and denied the existence of the Will as well as execution of any Relinquishment Deed dated 26.11.1970. She has pleaded that she is an illiterate house-wife and was having no doubt about the intentions of the defendants. Even if they had obtained signatures on some papers on the pretext of making applications or obtaining power of attorney and so, the same cannot be of any avail against her. (7). On the pleadings of the parties, the following Issues were framed: 1-D;k okn i= dh Øe la[;k 2 esa of.kZr lEifRr ds 1@& fgLls ds ckcr oknhuh ?kks"k.kk] foHkktu o dCts dh fMØh izkIr djus dh vf/kdkjh gS\ -----oknhuh 2-D;k vkseizdkk izfroknh ds tckok nkok dh en ua-3 esa fy[ks vuqlkj oknhuh rFkk foeyknsoh us 26-11-70 dks fooknxzLr lEifRr euhjke izfroknh ds gd esa rdZ dj nh vkSj bl ckcr ,d nLrkost nLrcjnkjh iathd`r djk fn;k\ ------izfroknhx.k 3-D;k jktdh; nsoh us fnukad 22-9-80 dks viuh leLr d`f"k Hkwfe o edku okd;s okMZ ua-9 orZeku okMZ la[;k 6 rglhy vuwix<+ dk olh;rukek vkseizdkk izfroknh ds gd esa rgjhj o rdehy djk fn;k\ -----izfroknhx.k 4-D;k ;g nkok bl U;k;ky; dks lquus dk vf/kdkj ugha gSa\ -----izfroknhx.k 5-D;k oknhuh us U;k; kqYd ds vnk fd;k gS\ -----izfroknhx.k 6-i{kdkjku lgk;rk ds ik= gS\ (8). The properties over which the plaintiff has claimed her share as one of the heir of her parents are the irrigated land measuring 4 bighas and 15 biswas situated in Chak 81 GB, Tehsil Anupgarh, District Sri Ganganagar and irrigated land measuring 18 bighas in Chak 3 Tehsil Anupgarh. The property over which the plaintiff has claimed her share as one of the heir of her mother Mst. Rajki Bai is the agricultural land measuring 19 bighas and 15 biswas situated in Murabba No. 24, of Chak 18 GB and a house at Ward No. 9 Anupgarh. (9). While deciding Issue No. 1, the trial court held that in respect of the properties left by Buda Ram and Mst. Rajki Bai, their children namely, plaintiff Mst. Janki Bai, defendant No.2 Smt. Vimla Devi and defendant No.1 Mani Ram are their legal heirs but since the plaintiff wants partition of agricultural land which were of the Khatedari rights of Buda Ram and Rajki Devi, the Civil Court had no jurisdiction to entertain this suit because for deciding such a question, only the revenue courts are competent to. Therefore, no relief can be granted by the Civil Court in respect of the agricultural lands. (10). In respect of the house in question, it was held by the learned trial court that property is not identifiable because neither any site plan has been produced nor any other relevant document has been brought on record and, therefore, the plaintiff is not entitled to get any relief in respect of the house also. (11). While deciding Issue No.2 relating to the claim of relinquishment made by the plaintiff and defendant No.2 in favour of defendant No.1, the learned trial court held that because the alleged Relinquishment deed Ex.A1 is a registered document, and has been produced through court-guardian of defendant No.1 and there is no reason to disbelieve it but since the document relates to the agricultural land, the civil court cannot declare the rights on the basis of that document in favour of any party for want of jurisdiction. The learned trial court also held that plaintiff Mst. Janki Devi and defendant No.2 Mst. The learned trial court also held that plaintiff Mst. Janki Devi and defendant No.2 Mst. Vimla Devi had got the relinquishment deed executed and registered on 26.11.1970, which fact has not been denied by any witness nor any evidence has been produced to disprove the same but no relief can be granted on that basis by the civil court. In this manner, Issue No.2 was decided in favour of defendant No.1 Mani Ram. (12). About Issue No.3, the learned trial court held that no evidence has been led to prove execution of Will, the copy of which has been produced. The defendant Om Prakash has failed to prove the Will. Therefore, the learned trial court decided Issue No.3 against defendant Om Prakash. As earlier noticed, while deciding Issue No.1 relating to jurisdiction, the learned trial court held that the suit relating to declaration and partition of agricultural land is exclusively triable by the revenue court and is not triable by the civil court. In this view of the matter, the Issue relating to deficit court-fees was also decided against the plaintiff by holding that the valuation of agricultural property has not been properly valued at the market rate by resorting to the valuation of the property on the basis of the land revenue. With these findings, the learned trial court dismissed the suit filed by the plaintiff-appellant. Hence this appeal by the plaintiff. (13). I have heard Mr. K.C. Samdariya, the learned counsel for the plaintiff-appellant and M/s M.L. Garg and M.K. Garg for the defendant-respondents and have carefully gone through the record of the case. (14). In the first instance, the learned counsel for the plaintiff-appellant urged that the suit being for declaration of right of inheritance in the properties left by the deceased parents of the plaintiff, it could not be said to be a suit exclusively triable by the revenue court. Merely because some of the properties left by the deceased were agricultural properties, the determination of rights in the agricultural property as well as non-agricultural property is a necessary consequence of declaration of the plaintiffs right to inheritance, which is a matter triable by the civil court and the jurisdiction of the civil courts had not been ousted under the Tenancy Act. In the alternative, it was alleged that this being a suit of composite nature relating to agricultural as well as non-agricultural immovable property, the jurisdiction of the civil court is not ousted. In such circumstances, the only proper course, which the learned trial court ought to have adopted was to refer the questions or the Issues which were triable by the revenue court exclusively to the appropriate revenue court and invite its findings and thereafter, to proceed with the case on its merit as per the findings recorded by the trial court. (15). The question which primarily arises for consideration in this case is whether a suit for claiming inheritance or the right found to inheritance which also includes agricultural land is triable by the Civil court or not? (16). S. 207 of the Rajasthan Tenancy Act, 1955 (for short `the Act) provides that all suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. It also provides that no court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. S. 206 of the Act deals with provisions for pending cases etc. and it provides that all suits, cases, appeals, applications, references and proceedings relating to matters dealt with in this Act and pending before a revenue court on the coming into force of this Act, shall subject to any specific provisions of this Act to the contrary be deemed to have been commenced under this Act and shall be tried, heard and determined in the manner prescribed by or under this Act. (17). The expression relating to matters dealt with in this Act, holds the key to determine the scope and ambit of the suits and applications of the nature specified in third schedule, which are to be exclusively triable by the revenue court and in respect of which, the jurisdiction of civil court has been excluded. (17). The expression relating to matters dealt with in this Act, holds the key to determine the scope and ambit of the suits and applications of the nature specified in third schedule, which are to be exclusively triable by the revenue court and in respect of which, the jurisdiction of civil court has been excluded. According to me, a suit for declaration of right of inheritance in respect of the estate left by the deceased is not a suit relating to the matters dealt with under the Rajasthan Tenancy Act, 1955 and merely because as a consequence of declaration of such rights in agricultural land can be acquired or denied, it does not become proceedings relating to the matters deal with the Rajasthan Tenancy Act, 1955. Right of inheritance is governed by law of inheritance. Law of inheritance deals with succession to the total estate left by a deceased. It does not restrict itself to specific properties. It is merely an incidence of vesting of property by succession on the death of a person that a person may claim share in specific properties. Such inheritance may be intestate succession or by way of testamentary succession. The Tenancy Act has not been tinkered with law of inheritance. In this connection, it is also pertinent to notice that under Sec. 38 of the Rajasthan Tenancy Act, 1955, while declaring the agricultural tenancy to be heritable but not transferable, the Act itself has not provided any special mode of inheritance but has left it to be followed in accordance with the personal laws of the parties concerned. The provisions of Secs. 38.39 and 40 of the Act to the extent they relate to the heritable nature of the rights in the agricultural land appears to be declaratory and not by way of making provision for inheritance. In absence of the provisions like Secs. 38, 39 and 40, the result would have been the same. The rights in agricultural land are undoubtedly rights which are heritable and in absence of any provision to the contrary, would have been heritable even in absence of the provision under Sec. 38 of the Act and would be governed by the personal laws in the matter of testamentary and intestate succession. Therefore, it cannot be said that the question relating to the succession of property of a deceased are disputes `relating to matters dealt with under this Act. Therefore, it cannot be said that the question relating to the succession of property of a deceased are disputes `relating to matters dealt with under this Act. (18). The fact that as a consequence of resolving of such disputes, it results in recognition and de-recognition of rights in respect of agricultural land also, does not bring that case within the purview of the nature of suits and applications dealt with under third Schedule, which all must necessarily relate to the matters dealt under the Rajasthan Tenancy Act and not de hors those matters. (19). Be that as it may, this question need not detain any further in this case as it is not necessary to go into this question in detail at this juncture inasmuch as there is no dispute between the parties that this is a case which deals with the right of inheritance in respect of a composite property, which partly consisted of agricultural land and partly of non-agricultural immoveable property and the suit in that respect is triable by the civil court only. Attention in this respect was invited to a decision of this Court in Manraj vs. Rameshwar (1). (20). In Manrajs case (supra), the plaintiff respondent filed a suit for cancellation of gift of agricultural and abadi land on the ground that the plaintiff was the adopted son of defendant, in the civil court. The objection as to the jurisdiction was raised before the appellate court. While deciding the second appeal, this Court said that on a perusal of the gift deed, it is clear that both the agricultural and non-agricultural properties were gifted to Manji. It was not disputed that the suit relating to such composite property is triable by the Civil Court. The above view was already by this Court in Rattu vs. Mala (2). In that case, the suit was for permanent injunction in respect of agricultural as well as other non-agricultural immoveable properties. The court held that a composite suit respecting agricultural and non-agricultural properties arising from one cause of action is triable by the civil court only. The above view was already by this Court in Rattu vs. Mala (2). In that case, the suit was for permanent injunction in respect of agricultural as well as other non-agricultural immoveable properties. The court held that a composite suit respecting agricultural and non-agricultural properties arising from one cause of action is triable by the civil court only. The court drew support from the provisions of Sec. 242 of the Rajasthan Tenancy Act, 1955, which goes to show that the legislature contemplated that a composite suit shall be instituted in the civil court which shall frame an issue on the plea of tenancy in respect of agricultural land and remit it for decision to the appropriate revenue court. Therefore, even assuming that suit was for claiming right in agricultural land by partition was a suit relating to matter dealt with under the Tenancy Act, the cause of partition being the claim founded on joint tenancy of the entire estate including agricultural and non-agricultural property and not a claim of individual property was triable by civil court. (21). The Legislature has not favoured multiplicity of proceedings in respect of cause of action relating to matters covered by the Tenancy Act solely on the basis of the court which ought to have tried the dispute is further apparent from the provision relating to jurisdiction of the civil court in dealing with the matters which are though triable by the revenue courts but have been decided by the civil courts. (22). S. 244 envisages a contingency that where in a suit instituted in civil or revenue court an appeal lies to a civil court, objection that suit was instituted in the wrong court shall not be entertained by the appellate court, unless such objection was taken in the court of first instance and the appellate court shall dispose of the appeal as if the suit had been instituted in right court. Not only raising of such an objection has been prohibited but the jurisdiction of the court has been excluded by prohibiting the court from entertaining such a plea at the appellate stage for the first time, on any ground whatsoever. Not only raising of such an objection has been prohibited but the jurisdiction of the court has been excluded by prohibiting the court from entertaining such a plea at the appellate stage for the first time, on any ground whatsoever. Sec. 245 of the Act further envisages that if in any suit, an objection was made in the court of first instance and the appellate court has before it all the material necessary for the determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right court. It further provides that if the appellate court has not before it, all such material and remands the case or frames issue and refers them for trial or requires additional evidence to be taken, it may direct its order either to the court in which the suit was instituted or to such court as it may declare to be competent to try the suit. (23). In these circumstances, the question as to the jurisdiction of the civil court to try the dispute at this stage must take back seat and cannot govern the hearing of this appeal on merits of the suit. (24). Such a finding recorded by the learned trial court to non-suit the plaintiff in respect of immoveable property other than agricultural land also is perverse. As a result, finding on Issue No.4 by the trial court is reversed and it is held that suit is triable by the Civil court. (25). Now we come to the merit of the suit. The relationship of the plaintiff and defendants No.1 and 2 is not in dispute. The plaintiff Jankidevi and defendant No.2 Vimla Devi are the daughters and defendant No.1 is the son of Buda Ram and Rajki Bai, who had expired and after their death, their properties devolved on them in equal shares. Thus, plaintiff Mst. Jankidevi, defendant No.2 Smt. Vimla Devi and defendant No.1 Mani Ram would be entitled to have 1/3rd share in the property of their parents Buda Ram and Rajki Bai on intestate succession. There is no dispute either about the fact that Budaram had died intestate. There is also no dispute about the properties left by deceased Buda Ram and Rajki Bai. The dispute is only to the extent whether plaintiff alongwith her sister Vimla Devi Defendant No.2 and Mst. There is no dispute either about the fact that Budaram had died intestate. There is also no dispute about the properties left by deceased Buda Ram and Rajki Bai. The dispute is only to the extent whether plaintiff alongwith her sister Vimla Devi Defendant No.2 and Mst. Rajki Bai, the mother of the three claimants had relinquished their shares in Buda Rams inheritance in favour of Mani Ram Defendant No.1; and whether Rajki Bai executed a valid Will disinheriting all the three heirs by bequeathing her interest in favour of Om Prakash, defendant No.4. Burden of proving both these facts is on the respective defendants who propound the same. The first question depends on proof of execution of alleged Relinquishment deed dt. 26.11.70 and to non-suit plaintiff from inheritance of mother to examine whether the defendant No.4, who has propounded the Will has been able to prove the execution of the alleged Will in accordance with law. (26). At the outset it may be noticed that the learned trial court has seriously erred in holding that immoveable property other than agricultural land included in the suit viz., Ahata and the house at Anupgarh are not identifiable. The conclusion is presumptuous. There was no dispute between the parties about the identity of the property in question nor the description of the property was disputed. The property has been well described by giving surroundings of all the four sides including Ward Number in which it is situated at Anupgarh. It is incomprehensible that on what premise, the learned trial Judge could come to the conclusion about description of the property being vague and it being not identifiable. It could be that division of the property could not have been made unless the proper enquiry has been made as to dimensions and nature of the properties and whether it is divisible by metes and bounds and other modes of partition or not? However, that question would have arisen only after declaration of the rights of the parties were made and a preliminary decree has been passed in exercise of partition of property by metes and bounds in accordance with law as envisaged under 0.20, r. 18 read with S. 54 CPC. (27). However, that question would have arisen only after declaration of the rights of the parties were made and a preliminary decree has been passed in exercise of partition of property by metes and bounds in accordance with law as envisaged under 0.20, r. 18 read with S. 54 CPC. (27). The relevant question which crops up for consideration in this appeal is whether despite the fact that plaintiff is the legal heir of Buda Ram and Smt. Rajki Bai, she is not entitled to any share in the property left by her parents because of the relinquishment of her share in favour of defendant No.1 Mani Ram by the alleged Relinquishment Deed dated 26.11.1970 ? The further question which involves in this appeal is whether Mst. Rajki Bai has disinherited plaintiff Smt. Jankidevi, defendant No.2 Smt. Vimaladevi and defendant No.1 Mani Ram by dint of a Will. (28). As noticed above Issue No.3 governing the question of Will has been decided against defendant No.4 Om Prakash, the propounder of Will. Though the photostat copy of the Will has been produced but no attempt has been made to prove its due execution in accordance with the law by the propounder of the Will. No evidence has been led to prove execution of Will by Rajki Bai or its due attestation as required by law. In these circumstances, the findings on Issues No.1 and 3 recorded by the trial court that execution of Will by Mst. Rajki Bai has not been proved deserves to be accepted. The decision on Issue No.3 also settles the question that so far as inheritance of Smt. Rajki Bai is concerned, there is no disinheritance of the plaintiff Jankidevi and Mani Ram defendant No.1 and defendant No.2 Smt. Vimladevi from the properties left by Mst. Rajki Bai. Therefore, there is no difficulty in accepting the claim of the plaintiff to the inheritance of mother Raji Bai. (29). The only question which survives for consideration is whether Mani Ram has been able to prove the execution of the relinquishment by plaintiff of her share by release deed dated 26.11.1970 as alleged by him. The trial Court on the basis of mere production of document Ex.A.1 has held that relinquishment deed was executed. In this respect, it is pertinent to mention here that the document Ex. The trial Court on the basis of mere production of document Ex.A.1 has held that relinquishment deed was executed. In this respect, it is pertinent to mention here that the document Ex. A.1 is not an original release deed but was merely a certified copy obtained from the Sub Registrars Office. The release deed is not a public document the execution of which can be proved merely by production of its certified copy. It is not the case of defendants that original document is not in existence or not in possession of defendant No.1 in whose possession ordinarily it ought to have been. No attempt has been made to prove even the fact that original document bore the signatures or thumb impressions of the plaintiff to prove the execution of the document by the plaintiff. (30). With this state of evidence led by the defendants, I am unable to sustain the finding recorded by the learned trial court on issue No.2 that defendant has been able to prove the fact that the plaintiff has relinquished her interest in the property left by her father Buda Ram. (31). When we come to the conclusion that neither the execution of relinquishment deed by the plaintiff, in favour of Mani Ram, defendant No.1, nor execution of the Will by Mst. Rajki Bai in favour of defendant No.4 Om Prakash is proved and admittedly, the plaintiff alongwith defendants No.1 and 2 is the Class-I heir of deceased Buda Ram and Rajki Bai, and also entitled to their intestate succession, that suit was maintainable in civil court, it must be held that plaintiff Jankidevi, defendant No.1 Mani Ram and defendant No.2 Smt. Vimla Devi are entitled to a declaration that they are having one third share in the properties left by their parents namely Buda Ram and Rajki Bai by way of devolution of their estate. Accordingly finding on issue No.1 is also reversed and decided in favour of the plaintiff. (32). Consequently this appeal is allowed. Accordingly finding on issue No.1 is also reversed and decided in favour of the plaintiff. (32). Consequently this appeal is allowed. The plaintiff is entitled to a decree for declaration that she has 1/3 share in the properties left by her parents Buda Ram and Rajki Bai so also Mani Ram and Vimla Devi has each 1/3 share in such properties and that the plaintiff is further entitled to a decree for partition of the properties left by her parents, which are mentioned in para No.2 of the plaint and claim possession of the share that may be allotted to her on partition being affected. So far as the agricultural land described in the plaint, there is no dispute that their original titles vest in Buda Ram and Rajki Bai respectively, which is subject to the payment of revenue to the State. It is directed that the District Collector, Sri Ganganagar or any other Gazetted Officer subordinate to the District Collector as may be deputed by him in his behalf shall partition the suit property in accordance with the aforesaid declaration keeping in view the provisions of Sec. 54 of the Civil Procedure Code, 1908 as also the provisions of the Rajasthan Tenancy Act or other tenancy laws as may be applicable to such agricultural land. So far as the claim of the plaintiff in respect of other immoveable property is concerned, a preliminary decree shall be drawn in favour of the plaintiff and defendants No. 1 and 2 in accordance with the aforesaid declaration and the trial court shall proceed with making a final decree in respect thereof in accordance with the law. (33). There shall be no order as to costs of this appeal.