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2019 DIGILAW 154 (CHH)

Rambati Bai Gond v. Shyamlal Gond

2019-01-22

SANJAY K.AGRAWAL

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JUDGMENT : Sanjay K. Agrawal, J. 1. The substantial question of law found involved and formulated for determination in this second appeal preferred by the plaintiffs/appellants at the time of admission is as under:-- "Whether the Courts below are justified in dismissing the suit of the plaintiffs by holding the scheduled suit land to be impartiable as according to right of primogeniture the name of the eldest member was recorded ignoring that by operation of Section 39 of the M.P. Abolition of Proprietary Rights (Estate, Mahal, Alienated Lands) Act, 1950 and Section 158(1)(b) & 164 of M.P. Land Revenue Code, 1959, incident of impartibility has extinguished and the estate became bhumiswami and plaintiffs have acquired right to the property?" (Parties herein will be referred as per their status shown and ranking given in he plaint before the trial Court.) 2. Following genealogical tree would demonstrate the relationship among the parties:-- Bisahu Singh Gond (Died) Bodhsingh (Deat 1955) Kosingh (Death 1954) Jairam (Adopted son) (D-2) Bhagwantin Bai (Wife) (D-1) Jairam (D-2) Maniram (P-1) Dharmsingh (P-2) Daya Bai (D-4) Mainbai (D-5) 3. Bisahu Singh Gond had two sons namely, Bodhsingh and Kosingh. The original plaintiffs herein were sons of Kosingh. They instituted the suit for declaration of title and possession in respect of the properties specifically mentioned in Schedule B annexed with the plaint. It is their case that they belong to Gond community and in the pre-independence era, their grand-father namely Bisahu Singh was the Mahfuza Thekedar of Village Konari, District Raipur and held a total estate of around 14.63 hectares of land in the capacity of being the Mahfuza Thekedar of Village Konari and the total estate has been mentioned in Schedule A annexed with the plaint. It is further pleaded that after the death of Bisahu Singh, he was survived by two sons namely, Bodhsingh and Kosingh and at that relevant time, as per the applicable law of lineal primogeniture (which means first born and denotes the preferential rights of the senior most in age to succeed to the estate, since senior most in age is entitled to succeed to the estate in preference to his younger brother, which is impartible in nature), the name of Bodhsingh was recorded in his place as the Mahfuza Thekedar of Village Konari as well in his estate in the revenue records. It is their further case advanced in the plaint that after the death of said Bisahu Singh, his two sons namely, Bodhsingh and the plaintiffs' father-Kosingh partitioned the estate among themselves and were in separate occupation and possession of their respective properties. It was also stated that even after the said arrangement/partition between the brothers, the name of elder brother Bodhsingh continued to be recorded in the revenue records and thereafter, in the year 1954, their father died and after his death, the original plaintiffs being the legal heirs of Kosingh inherited his share of estate and were in occupation and possession of the said part. It was also pleaded that in the year 1955, their father's brother Bodhsingh died and his share was inherited by his widow Bhagwantin Bai and other LRs. The said arrangement/share of partition as it existed between the two brothers continued peacefully without disturbance by their legal representatives till 1979, when original defendant No. 1 Bhagwantin Bai along with other defendants interfered with the peaceful possession of the plaintiffs over the properties mentioned in Schedule B and on enquiry, the plaintiffs came to know that after the death of Bodhsingh, taking advantage of his sole name having been recorded in the revenue records, defendant No. 1 in connivance with the officials got her sole name mutated in the revenue records showing herself to be the exclusive owner of the entire estate as held originally by Bisahu Singh necessitating the institution of suit for declaration of title and possession that they are the title holders of the suit land mentioned in Schedule B of the plaint and they are entitled for possession of the said land from the defendants. 4. The original defendants filed their written statement denying and controverting the plaint allegations stating inter alia that after the death of Bisahu Singh, who was the Mahfuza Thekedar, the estate was recorded in the name of Bodhsingh and after coming into force of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (for short, 'the Act of 1950') with effect from 26-1-1951, the said Bodhsingh became the sole owner of the estate and after his death, the name of his wife defendant No. 1 was rightly recorded in his place and as such, the plaintiffs have no right, title and interest over the estate/suit land. In addition to this, it was also stated that no partition/arrangement took place between the two brothers and Kosingh was never in possession and occupation of the properties mentioned in Schedule B and prayed for dismissal of suit with cost. 5. The trial Court on the basis of the pleadings of the parties framed as many as thirteen issues and recorded finding in front of issues so framed as under:-- Okkn Á’u fu”d”kZ 1- D;k fclkgw xzke dksukjh ds rgQwtk Bsdsnkj ,oa fdlku Fks \ gkWa 2- ¼v½ D;k fcUnzuokx<+ esa tehunkjh Ápfyr dkuwu vkWQ ÁkbZekstsfupj ds vuqlkj fclkgw dks laifRr dk uke iVokjh dkxtkrksa esa cks/kflag dk uke p<+ x;k Fkk \ gkWa ¼c½ D;k fclkgw dka laifRr esa cks/kflag ds lkFk dksflag dks ‘kkfey ‘kjhd mRrjkf/kdkj ÁkIr gqvk Fkk A gkWa ¼l½ D;k xkao ds iapks ds lkeus fclkgw dks laifRr dk fgLlk ckaVk cks/kflag rFkk dksflag ds e/; gqvk Fkk vkSj os yksx vius&vius fgLls ij dkfct gq;s Fks \ gkWa ¼M½ D;k dksflag dks Ái= ¼¥½ esa mYysf[kr Hkwfe fgLlk ckaVk esa feyh Fkh \ gkWa 3- D;k laiw.kZ laifr cks/kflag dks Lor% vftZr laifRr gS \ gkWa 4- D;k nRrd iq= t;jke dks HkxofUru ckbZ ds thfor jgrs gq;s dksbZ vf/kdkj ÁkIr ugha gksrk gS \ ugha 5- D;k oknhx.k Ái= ¼c½ esa mYysf[kr Hkwfe;ksa ij lu~ 1954 ls dkfct+ gS \ gkWa 6- D;k Áfrokfnuh Øekad&01 }kjk oknxzLr Hkwfe dk fd;k x;k fcØhukek voS/k ,oa ÁHkkoghu gS\ gkWa 7- D;k oknhx.kksa us U;k; ‘kqYd de vnk fd;k gS \ ugha 8- D;k oknhx.kksa dk nkok U;k;ky; ds {ks=kf/kdkj ds ckgu dk gS \ ugha 9- D;k oknhx.kksa us ;g nkok Áfroknh Øekad&02 ds lkFk dqpØ djds ÁLrqr fd;k gS \ ;fn gkWa rks ÁHkko \ Áekf.kr ugha 10- D;k Áfrokfnuh HkxofUru dh foijhr dCts ds vk/kkj ij fooknxzLr Hkwfe dk LoRo gks pqdk gS \ ugha 11- D;k oknhx.kksa dk nkok csE;kn gS \ ugha 12- lgk;rk ,oa okn O;; \ lO;; vikLr 13- D;k oknxzLr Hkwfe Bsdsnkjh laifRr gS \ ;fn gks rks D;k Bsdsnkjksa laifRr vfHk&HkkT gksrk gS] blfy, okn pyus ;ksX; ugha gS \ gkWa 6. The trial Court in its judgment, except issue Nos. 3 & 13, recorded all the findings in favour of the plaintiffs. However, while returning finding on issue Nos. The trial Court in its judgment, except issue Nos. 3 & 13, recorded all the findings in favour of the plaintiffs. However, while returning finding on issue Nos. 3 & 13, it was held by the trial Court that by virtue of the provisions contained in Section 109 of the Central Provinces Land Revenue Act, 1917, the estate of said Bisahu Singh was impartible land and after coming into force of the Act of 1950, the said estate has become the sole, separate and self-acquired property of Bodhsingh relying upon the decision rendered by the M.P. High Court in the matter of Mustafa Khan and others Vs. Mst Hayat Bi and others 1978 MPLJ 382 and consequently dismissed the plaintiffs' suit. 7. Feeling aggrieved and dissatisfied with the judgment & decree of the trial Court, the plaintiffs preferred first appeal under Section 96 of the CPC mainly assailing the finding recorded by the trial Court with respect to issue Nos. 3 & 13 holding the suit property being the impartible land is not liable to partition, therefore, the suit is not maintainable. However, the defendants also preferred cross-appeal questioning the finding of the trial Court with respect to issue Nos. 1, 2(a) to 2(d) and 3. 8. The first appellate Court dismissed the appeal of the plaintiffs, but reversed and thereby set-aside the finding of the trial Court on issue Nos. 1, 2(b), 2(c) and 2(d), however, confirmed the finding on issue No. 13 holding the suit land to be the land belonging to the protected Thekedar and the property being impartible, the suit is not maintainable. 9. Now, the captioned appeal has been preferred only by the plaintiffs in which the substantial question of law was formulated for determination which has been set-out in the opening paragraph of this judgment for consideration. 10. In order to answer the substantial question of law formulated during admission of this appeal, first and foremost question would be, what was the nature of the property held by Bisahu Singh Gond under the Central Provinces Land Revenue Act, 1917, and after his death, by his elder son Bodhsingh, whether it was held by him as protected/Mahfuza Thekedar? 11. In order to answer the substantial question of law formulated during admission of this appeal, first and foremost question would be, what was the nature of the property held by Bisahu Singh Gond under the Central Provinces Land Revenue Act, 1917, and after his death, by his elder son Bodhsingh, whether it was held by him as protected/Mahfuza Thekedar? 11. The trial Court recorded a finding that Bisahu Singh held the property in the capacity of Mahfuza Thekedar and under the rule of primogeniture, after his death, the suit land came to be recorded in the name of his elder son Bodhsingh - brother of the plaintiffs father and it was inherited by the plaintiffs' father and Bodhsingh jointly after the death of Bisahu Singh and it was also partitioned, but the said finding has been reversed by the first appellate Court while granting the cross-appeal preferred by the defendants. 12. In order to decide this point, it would be appropriate to refer the documents referred by the defendants themselves, as it is the case of the defendants that the property was the self-acquired property of Bodhsingh. 13. The defendants have filed Ex. D-2 i.e. the Khasra Panchshala of the year 1947-48 to 1951-52 in which in column 3, the name of the possession holder has been recorded as Bodhsingh, S/o. Bisahu Singh Gond as Mahfuza Thekedar and it has also been recorded that Nagendra Shah was Rajgond/Zamindar of that estate. In the said document Ex. D-2 for the year 1951-52, it has been recorded that by order of the Deputy Commissioner, Land Reforms in Case No. 316/1A/10, Bodhsingh - protected Thekedar has been conferred with the occupancy rights. Therefore, it is quite vivid that Bisahu Singh was the Mahfuza/protected Thekedar under the Central Provinces Land Revenue Act, 1917. The first appellate Court has simply recorded finding that it is the self-acquired property of Bodhsingh and set aside the finding of the trial Court recorded on issue No. 3, but did not set aside the finding on issue No. 2 in which the trial Court has clearly recorded that in Bindranawagarh, according to the rule of primogeniture, the name of Bodhsingh came to be recorded in the revenue records in place of Bisahu Singh, as such, it is accordingly held that Bodhsingh became the protected/Mahfuza Thekedar of the estate under the provisions of the Central Provinces Land Revenue Act, 1917. 14. Now, the question is, what was the nature of the property held by the Mahfuza/protected Thekedar (Bodhsingh) under the Central Provinces Land Revenue Act, 1917 and what are the rights of other members of the family of such protected Thekedar vis-a-vis such property? 15. In order to answer the aforesaid question, it would be appropriate to notice the provisions contained in Section 109 of the Central Provinces Land Revenue Act, 1917 which states as under:-- "109. 15. In order to answer the aforesaid question, it would be appropriate to notice the provisions contained in Section 109 of the Central Provinces Land Revenue Act, 1917 which states as under:-- "109. (1) The incidents of the tenure of a protected thekadar shall be as follows:-- (a) the tenure shall be-- (i) impartible; (ii) inalienable; and (iii) exempt from liability to sale or foreclosure in execution of any decree of a Civil Court: Provided that -- (i) Nothing herein contained shall prevent a protected thekadar, or any member or members of his family who would be entitled to share in the theka or to be maintained out of its income, from making any arrangement and enjoyment of the village or part thereof; (ii) the right of a protected thekadar may subject to the sanction of the Deputy Commissioner, be given in lease for a period not exceeding ten years in favour of a society registered under the Co-operative Societies Act, 1912 (II of 1912); (b) the succession shall be regulated by the personal law of the deceased thekadar, subject to the following conditions, namely:-- (i) only one person at a time shall succeed; (ii) where there are several persons in the same degree of relationship to the deceased thekadar, those senior in descent from the common ancestor shall be preferred to those junior, and where there are several persons of equal seniority of descent, the eldest shall be preferred to the others: Provided that, of such persons bearing the same degree of relationship to the deceased thekadar, one who was joint in estate with him at the time of his death shall be preferred to one who was not so joint; (iii) if there are several widows, the senior in date of marriage shall be preferred to the others; (iv) the person entitled to succeed may resign his rights and thereupon the person next in order of succession to the deceased thekadar shall succeed; (c) a protected thekadar, whether holding under a written lease or under a verbal agreement, shall be entitled on its expiry to a renewal of his lease or agreement and, on the occurrence of any such renewals, the provisions of section 108 shall apply; (d) all miscellaneous dues and cesses, unless specially authorised by the Commissioner shall be included in the theka-jama. (2) Notwithstanding anything contained in the Indian Registration Act (XVI of 1908), no officer empowered to register document shall admit to registration any document which purports to transfer the rights or any portion of the S.A. No. 455/2001 Page 11 of 26 rights of a protected thekadar as such save as provided in sub-section (1), clause (a), proviso (ii). (3) If a protected thekadar transfers any portion of his rights, save as provided in sub-section (1), clause (a), proviso (ii), and the transferee obtains possession in pursuance of the transfer, the Deputy Commissioner may, of his own motion or on the application of any of the persons hereinafter mentioned, place in possession of the village or part of the village concerned the transferring thekadar, or any co-sharer, or, failing such persons, the proprietor, subject to the condition that the person so placed in possession shall accept the liabilities of the transferring thekadar for arrears of the theka-jama; Provided that, as among several co-sharers desirous of being placed in possession, the Deputy Commissioner shall decide in favour of the person who would be entitled to succeed the thekadar under sub-section (1) if he were dead. Explanation I. -- For the purpose of sub-section (3) a surrender of his rights as such by a protected thekadar shall be regarded as a transfer in contravention of sub-section (1). Explanation II.--In this section and in the third proviso to Section II the expression 'co-sharer' shall mean any person joint with the protected thekadar and entitled to a share in the profits of the lease. ... ... ... ..." 16. A careful perusal of the aforesaid provision would show that the nature of the property would be impartible and inalienable subject to proviso to sub-section (1) of Section 109 of the Act of 1917 which gives right to the protected Thekedar or any member or members of his family from making any arrangement binding on themselves only for joint or divided management and enjoyment of the village or part thereof. 17. The nature of land held by protected Theka under the Act of 1917 and the rights of a protected Thekedar vis-a-vis other members of family came to be considered for the first time by the Privy Council in the matter of Thakur Bhagwan Singh Vs. 17. The nature of land held by protected Theka under the Act of 1917 and the rights of a protected Thekedar vis-a-vis other members of family came to be considered for the first time by the Privy Council in the matter of Thakur Bhagwan Singh Vs. Darbarsingh AIR 1928 Privy Council 96 in which the Privy Council held that though the land held by protected Theka would be impartible land, yet, it will be the joint property of the protected Thekedar and his family and succinctly observed as under:-- "The position of a protected thekadar is that, under S. 108 of the Act, he holds the lands included in the theka under a lease on terms settled after inquiry by the revenue authority but executed by the proprietor (or in case of refusal by the revenue authority for him), subject to forfeiture as provided in S. 111 of the Act, one ground of forfeiture being his refusal to execute a kabuliyat or counterpart of the lease. On the expiry of the lease he is entitled to renewal under Cl. (c) of sub-S. (1) of S. 109, and under Cls. (a) and (b) of the same sub-section, his tenure is made impartible and inalienable, and it is provided that on his death the succession thereto is to be regulated by the personal law of the deceased Thekadar, subject to the condition that only one person at a time shall succeed and that such person shall be chosen as therein provided. This being the position of Thekadar, it follows, in their Lordships' opinion, that he is entitled as lessee to possession of the demised premises, at any rate in the absence of the arrangement hereafter mentioned. At the same time the Act recognizes that the leasehold interest, though impartible, may nevertheless be the joint property of the thekadar and his family; and it is provided in Cl. (a) of sub-S. (I) of S. 109 that nothing herein contained shall prevent a protected thekadar or any member or members of his family who would be entitled to share in the theka or to be, maintained out of its income from making any arrangement, binding on themselves only, for the joint or divided management, binding on themselves only, for the joint or divided management and enjoyment of the village or part thereof. It has not been suggested that there was any such arrangement binding the thekadar in this case. Section 112 is as follows: Subject to rules made under S. 227, the District Commissioner may, on the application of any member of the family of a protected Thekadar who is entitled to be maintained out of its income, transfer the theka to any such member of the family who shall thereupon become the protected Thekadar: Provided that such removal shall not deprive the protected person removed of his interest in the theka. This remedy is no doubt given to the other members of the family in lieu of the right to sue for partition, of which they have been deprived in consequence of the theka being made impartible by statute." (emphasis supplied) 18. The principle of law laid down in Thakur Bhagwan Singh AIR 1928 Privy Council 96 (supra) by the Privy Council was followed with approval by the Division Bench of the Nagpur High Court in the matter of Chandulal Vs. Pushkar Raj and others AIR 1952 Nagpur 271 reiterating the proposition that lease-hold interest, though impartible, may nevertheless be the joint property of the Thekedar and his family and it would not be the exclusive property of the protected Thekedar, and observed as under:-- "(17) It has always been the accepted view that the grant of protected status to a 'thekedar' did not make the 'theka' the exclusive property of the person on whom the protected status is conferred.... (18) The nature and incidence of protected 'thekedari' tenure came up for consideration by their Lordships of the Privy Council in 'BHAGWAN SINGH v. DARBAR SINGH', 24 Nag LR 179. Their Lordships observed that the Land Revenue Act, 1917, recognizes that the lease-hold interest, though impartible, may nevertheless be the joint property of the 'thekedar' and his family...." 19. (18) The nature and incidence of protected 'thekedari' tenure came up for consideration by their Lordships of the Privy Council in 'BHAGWAN SINGH v. DARBAR SINGH', 24 Nag LR 179. Their Lordships observed that the Land Revenue Act, 1917, recognizes that the lease-hold interest, though impartible, may nevertheless be the joint property of the 'thekedar' and his family...." 19. From the aforesaid provision stipulated in Section 109(1) of the Act of 1917 and the principles of law laid down in the aforesaid two judgments by the Privy Council in Thakur Bhagwan Singh AIR 1928 Privy Council 96 (supra) and by the Nagpur High Court in Chandulal AIR 1952 Nagpur 271 (supra), it is quite vivid that protected Thekedar would not be the exclusive owner of the protected 'theka' and Section 109 of the Act of 1917 makes the estate impartible and inalienable, it would nevertheless be the joint property of the Thekedar and his family, and other members of the family would be entitled to share in theka or to be maintained out of its income from making any arrangement binding among themselves, but they cannot sue for partition of theka. 20. At this stage, it would be appropriate to notice the legislative change incorporated by the provisions contained in the Act of 1950 qua the status of protected Thekedar which came into force with effect from 26-1-1951, in which Section 3 of the Act of 1950 states about vesting of proprietary rights in the State. Further, Section 39 of the Act of 1950 confers occupancy tenant right to the protected Thekedar by the order of the Deputy Commissioner. Likewise, Section 54 confers accrual of raiyati right to a proprietor or under tenure. Sections 3, 39 and 54 of the Act of 1950 read as follows:-- "3. Further, Section 39 of the Act of 1950 confers occupancy tenant right to the protected Thekedar by the order of the Deputy Commissioner. Likewise, Section 54 confers accrual of raiyati right to a proprietor or under tenure. Sections 3, 39 and 54 of the Act of 1950 read as follows:-- "3. Vesting of proprietary rights in the State.--(1) Save as otherwise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances. (2) After the issue of a notification under sub-section (1), no right shall be acquired in or over the land to which the said notification relates, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State; and no fresh cleanings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf. (3) Different dates may be specified under sub-section (1) for different areas. (4) The State Government may vary the date specified under sub-section (1) at any time before such date. 39. Accrual of tenancy right to a protected Thekadar, other Thekadar or a protected headman, etc.--(1) Where the proprietary rights held by a protected Thekadar or other Thekadar or a protected headman or by any other under-tenure vest in the State under section 3, the Deputy Commissioner may reserve to such proprietor the rights of an occupancy tenant in the whole or part of the home-farm land and shall determine the rent thereon. (2) Any person becoming an occupancy tenant under sub-section (1) shall be a tenant of the State. 54. (2) Any person becoming an occupancy tenant under sub-section (1) shall be a tenant of the State. 54. Accrual of raiyati right to a proprietor or under tenure.-- (1) Where any land not included in the home farm was under the personal cultivation of a proprietor, the Deputy Commissioner, may in accordance with the rules made by the State Government in this behalf, reserve to such proprietor the rights of a raiyat in the whole or part of such land and shall determine the revenue thereon. (2) Where the proprietary rights held by an under-tenure vest in the State under section 3, the Deputy Commissioner may reserve to such under-tenure the rights of a raiyat in the whole or part of the home-farm land and shall determine the revenue thereon." 21. Thus, by virtue of the provisions-contained in Section 39(1) of the Act of 1950, the Deputy Commissioner may by order reserve the proprietary rights held by a protected Thekedar to such proprietor, the rights of an occupancy tenant in whole or part of land and by virtue of Section 39(2) of the Act of 1950, any person becoming an occupancy tenant under Section 39(1) shall be a tenant of the State. 22. As it has been noticed herein-above, duly mentioned in Ex. D-2, by the order of the Deputy Commissioner under Section 39(1) of the Act of 1950, the rights of occupancy tenant was conferred to Bodhsingh (protected Thekedar to the lands held by him in Theka) - brother of the plaintiffs' father, upon the entire estate including the suit land in a proceeding in Case No. 316/1A/10 by assessing the land revenue of Rs. 1.75 which was duly recorded in Exs. D-1 & D-3 - Khasra Panchshala for the year 1952-53. Thus, by coming into force of the Act of 1950, Bodhsingh, who was conferred with the status of protected Thekedar, became the occupancy tenant so far as the entire estate including the suit land is concerned by the order of the Deputy Commissioner duly recorded in Ex. D-2. 23. The change brought-out and noticed herein-above with regard to the nature of protected thekedari property after the Act of 1950 was considered by the M.P. High Court in the matter of Maniram Maksudan Vs. D-2. 23. The change brought-out and noticed herein-above with regard to the nature of protected thekedari property after the Act of 1950 was considered by the M.P. High Court in the matter of Maniram Maksudan Vs. Ramdayal Maksudan and another AIR 1960 MP 7 in which the question was, whether the theka being inalienable and impartible under Section 109 of the Act of 1917, the other co sharers have any interest and can claim to retain possession either jointly or exclusively of any lands with the protected Thekedar. The M.P. High Court relying upon the decision of the Privy Council in Thakur Bhagwan Singh AIR 1928 Privy Council 96 (supra) and that of the Magpur High Court in Chandulal AIR 1952 Nagpur 271 (supra) and also relying upon its another decision in the matter of Sheo Prasad Sao Vs. Mst. Sukhambai held that the thekedari property became partible between the co-sharers after 1950 and observed as under:-- "(7) It will thus be seen that although section 109 of the C.P. Land Revenue Act states that the theka shall descend by primogeniture, the rights of the other members of the Hindu family in the theka continue, though they cannot obtain a partition of the lands in the theka or claim to be in possession of any lands pertaining to the theka in the absence of any arrangement between them. It is open to the protected thekedar to come to an agreement with his co-sharers to divide the lands attached to the theka and such a family arrangement would be binding on the co-sharers. The partition effected between the parties in 1935 thus had the character of a family arrangement and even though a theka is impartible under law, the arrangement Was binding on the parties. (8) ... ... ... It was held that a suit for a share of the profits of the thekedari property was not tenable. The view regarding the joint family character of the theka lands taken in ILR 1952 Nag 318: (AIR 1952 Nag 271) (supra), which is based on the decision of their Lordships of the Privy Council in 24 Nag LR 179: ( AIR 1928 PC 96 ), was not adverted to in that judgment. The observations in the case relied upon by Shri Verma do not go counter to those decisions. The observations in the case relied upon by Shri Verma do not go counter to those decisions. The position remains that the theka lands continue to be joint family property, even though a suit by a co-sharer for profits of any year cannot be maintained. (9) ... ... ... I agree that this would be the position after the abolition of the rights of a protected thekedar. The lands in a theka are held by the joint family of the protected thekedar according to the accepted view, though it was subject to the express limitation imposed by S. 109 of the Land Revenue Act. After the abolition of the protected rights, these restrictions disappeared and the normal character of the lands as joint Hindu family lands was restored. They, therefore, became partible between the co-sharers after 1950." 24. Thus, from the aforesaid legal analysis, it is quite vivid that the estate of protected theka which was the joint property of family members with statutory restriction of no right of suing for partition became the normal joint Hindu co-parcenary family property with no statutory restriction and became partible between the co-sharers after coming into force of the Act of 1950 as held by the M.P. High Court in Maniram Maksudan AIR 1960 MP 7 (supra), which is binding to this Court, as that was a judgment rendered by the M.P. High Court prior to 1-11-2000. 25. The M.P. Land Revenue Code, 1954 (for short, 'the Code of 1954') came into force with effect from 12-2-1955. Firstly it was extended to Mahakoshal region, but by the M.P. Adaptation of Laws (State and Concurrent Subjects) Order, 1956, it was brought into force in the entire Madhya Pradesh from 1-11-1956. Section 147(a) of the Code of 1954 provides as under:-- "147. Bhumidhari--Every person who at the coming into force of this Code belongs to any of the following classes shall be called a Bhumidhari and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhari by or under this Code, namely. (a) every person in respect of land held by him as an occupancy tenant in the Mahakoshal Region excluding merged territories." 26. (a) every person in respect of land held by him as an occupancy tenant in the Mahakoshal Region excluding merged territories." 26. Therefore, after coming into force of the Code of 1954, every person in respect of the land held by him as an occupancy tenant in the Mahakoshal region became Bhumidhari under the Code of 1954. The term "Mahakoshal region" has been defined in the M.P. Adaptation of Laws (State and Concurrent Subjects) Order, 1956 in Section 2(1)(t) and it includes District Raipur also where the suit lands are situated, which reads as follows:-- "(f) "Mahakoshal region" means the territories comprised within the districts of Jabalpur, Sagar, Damoh, Mandla, Hoshangabad, Narsimhapur, Chhindwara, Seoni, Betul, Nimar, Raipur, Bilaspur, Durg, Baster, Surguja, Raigarh and Balaghat of the State of Madhya Pradesh, as existing immediately before the appointed day;" 27. Thus, by virtue of Section 147(a) of the Code of 1954, Bodhsingh, who was holding the suit land on or before 1-11-1956 in the capacity of occupancy tenant in Mahakoshal region which included Raipur where the suit lands are located, became Bhumidhari of the said lands. 28. The Code of 1954 was repealed with effect from 2-10-1959 and the Madhya Pradesh (Chhattisgarh) Land Revenue Code, 1959 (for short, 'the Code of 1959') came into force from the said date. Section 158(1)(a) of the Code of 1959 states as under:-- "158. Bhumiswami.--(1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely:-- (a) every person in respect of land held by him in the Mahakoshal region in Bhumiswami or Bhumidhari rights in accordance with the provisions of the Madhya Pradesh Land Revenue Code, 1959 (II of 1955);" 29. Finally, by virtue of the provisions contained in Section 158(1)(a) of the Code of 1959, on coming into force of the Chhattisgarh Land Revenue Code, 1959, with effect from 2-10-1959, Bodhsingh became the Bhumiswami of the entire estate including the suit land, which he was holding as Bhumidhari prior to 2-10-1959. 30. Finally, by virtue of the provisions contained in Section 158(1)(a) of the Code of 1959, on coming into force of the Chhattisgarh Land Revenue Code, 1959, with effect from 2-10-1959, Bodhsingh became the Bhumiswami of the entire estate including the suit land, which he was holding as Bhumidhari prior to 2-10-1959. 30. As already noticed herein-above, the M.P. High Court in Maniram Maksudan AIR 1960 MP 7 (supra) has clearly held that the lands in a theka are held by the joint family of the protected thekedar and after the abolition of the protected rights after coming into force of the Code of 1959, these restrictions disappeared and the normal character of the suit lands as joint Hindu family property was restored and, therefore, the lands became partible between the co-sharers after 1950. But, in the instant case, the trial Court as well as the first appellate Court after having held that the lands in theka are held by the joint family property of Bodhsingh, but relying upon the decision of the M.P. High Court in Mustafa Khan 1978 MPLJ 382 (supra) dismissed the suit holding that since the land being impartible, the plaintiffs are not entitled to sue for partition. The decision in Mustafa Khan 1978 MPLJ 382 (supra) has been heavily relied upon and stressed by learned counsel appearing for the respondents herein/defendants before me also to support the findings regarding impartibility of suit land even after coming into force of the Act of 1950. 31. At this stage, it is appropriate to notice here that in the matter of Mustafa Khan 1978 MPLJ 382 (supra), the M.P. High Court has relied upon the decision of the Supreme Court in the matter of Sri Rajah Velugoti Kumara Krishna Yachendra Varu and others Vs. Sri Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and others 1969 (3) SCC 281 and distinguished the decision of the coordinate Bench of the M.P. High Court in Maniram Maksudan AIR 1960 MP 7 (supra) by holding as under:-- "The second case that was referred to was that of Maniram Maksudan Vs. Ramdayal Maksudan and another AIR 1960 MP 7 . Ramdayal Maksudan and another AIR 1960 MP 7 . In that case though the theka was recorded in the name of the plaintiff but in the year 1935 a partition took place in which the family in which the sir and khudkasht lands attached to the theka and other properties belonging to the family were divided between three brothers and it was on that basis T.C. Shrivastava J., as he then was, held that after the coming into force of the Abolition Act the proprietary rights pertaining to the protected thekadari disappeared and the normal character of lands as joint Hindu family lands was restored. They, therefore, became partible between the co-sharers after the year 1950. Thus, in that case, the protected thekadar did not hold the theka as his exclusive property inspite of the fact that the protected status was conferred on him. The property was jointly held by the brothers which is not the case here. As such, the said decision is of no help for solving the point arising the present case." 32. Finally, it was held by the M.P. High Court in Mustafa Khan 1978 MPLJ 382 (supra) as under:-- "Since the decision ultimately rests on the first proviso to section 109(1)(a) of the C.P. Land Revenue Act, it is desirable to examine it before finally drawing the conclusion on the basis of the Supreme Court case of Krishna (supra). A reading of the proviso makes it clear that the rights of the members of the thekadar's family to claim a share in the theka or to be maintained out of its income were recognised under the Act of 1917 on the basis of any arrangement arrived at between the thekadar and the members of his family. This, in my opinion, the Legislature thought to enact inspite of making the theka impartible for the reasons to save certain arrangements to the contrary and also provided a remedy under section 112 in case of their violation on the part of the thekadar. The plaintiffs did not resort for their relief under the Act. This, in my opinion, the Legislature thought to enact inspite of making the theka impartible for the reasons to save certain arrangements to the contrary and also provided a remedy under section 112 in case of their violation on the part of the thekadar. The plaintiffs did not resort for their relief under the Act. On the contrary, they filed the present suit for partition and separate possession on the basis of heirs of previous thekadar Murtejakhan (not on the basis of any arrangement between them and the thekadar) after the thekadari ceased to exist on coming into force of the Abolition Act and the character of impartiality which was attached to the tenure of a protected thekadar under section 109(1)(i) ceased. But then whether this cessation made the impartible theka as partible amongst the plaintiffs and the then thekadar (defendant No. 1). My answer is in the negative relying upon the Supreme Court decision in the case of Krishna (supra) which squarely applies with all force. Therefore, even here though impartibility was removed by the Abolition Act, that did not create any right which the plaintiffs could prescribe to themselves. Under section 39(1) of the said Act the then thekadar (defendant No. 1) alone became the occupancy tenant and subsequently on coming into force of the M.P. Land Revenue Code, 1954, he became a bhumidhari under section 147(a) of the said Code and finally a bhumiswami under Section 158 of the M.P. Land Revenue Code, 1959. The plaintiff's claim on the ground of inheritance fails once it is held that the theka being impartible, it would be deemed to have been clothed with the incidents of self acquired and separate property as in the case of impartible estate which may be ancestral. I may further mention here that as the parties are Mahommedan, there was no such thing as a joint Mahommedan family nor does the Mahommedan Law recognise a joint tenancy in a Mahommedan family. Therefore, all those considerations which arose in the cases where parties were Hindus will have no applicability here, much less to say now on the face of the Supreme Court decision. In this view of the matter, differing from the lower appellate Court, I bold that the plaintiffs had no right to claim partition from the defendant No. 1, the then thekadar. Accordingly the suit of the plaintiffs must fail partly." 33. In this view of the matter, differing from the lower appellate Court, I bold that the plaintiffs had no right to claim partition from the defendant No. 1, the then thekadar. Accordingly the suit of the plaintiffs must fail partly." 33. The decision of the Supreme Court in Sri Rajah Velugoti Kumara Krishna Yachendra Varu 1969 (3) SCC 281 (supra) was considered by three-Judges Bench of the Supreme Court in the matter of Nagesh Bisto Desai and others Vs. Khando Tirmal Desai and others (1982) 2 SCC 79 in which, in paragraph 23, the Supreme Court distinguished the case of Sri Rajah Velugoti Kumara Krishna Yachendra Varu 1969 (3) SCC 281 (supra) relying upon the provisions of the Madras Impartible Estates Act, 1904. 34. The legal position of inam/malguzari estate and rights of malguzar vis-a-vis other members, after coming into force of the Act of 1950 was authoritatively considered by three-Judges Bench of the Supreme Court in the matter of Anant Kibe and others Vs. Purushottam Rao and others 1984 (Supp) SCC 175 which is a case arising from the M.P. High Court and in which Their Lordships of the Supreme Court formulated the following question (paragraph 6) for consideration:-- "6. The short and narrow question involved in this appeal, is whether the inam lands which became bhumiswami lands under Section 158(1)(b) of the Code were the self-acquired property of the inamdar and defendant 1 Purushottam Rao was entitled to remain in full and exclusive possession and enjoyment thereof, or the conferral of bhumiswami rights in respect of such inam lands on him must enure to the benefit of the members of the joint Hindu family and therefore the bhumiswami lands were liable to be partitioned like any other coparcenary property." 35. Their Lordships ultimately answered the said question considering the provisions contained in Section 158(1)(b) of the Code of 1959 holding that by virtue of Sections 158(1)(b) & 164 of the Code of 1959, the estate became bhumiswami land and incident of impartibility was extinguished and junior members can claim partition over such land. Paragraphs 9 and 10 of the report state as under:-- "9. Under the scheme of the Code there was a drastic change brought about not only in the nature of the tenure of inam lands but also in the mode of succession. Section 158(1)(b) of the Code provides: 158. Paragraphs 9 and 10 of the report state as under:-- "9. Under the scheme of the Code there was a drastic change brought about not only in the nature of the tenure of inam lands but also in the mode of succession. Section 158(1)(b) of the Code provides: 158. Bhumiswami.--(1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely: (a) * * * * (b) every person in respect of land held by him in the Madhya Bharat region as a Pakka Tenant or as a Muafidar, Inamdar, or Concessional Holder, as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950). 10. The plain language of Section 158(1)(b) effected a complete extinction of the inam rights followed by simultaneous conferral of bhumiswami rights. Every person, in respect of the land held by him in the Madhya Bharat region as an inamdar, at the time of the coming into force of the Code, became a bhumiswami thereof, and acquired all the rights and became subject to all the liabilities of a bhumiswami under the Code. The words "in respect of land held by him" appearing in Section 158(1)(b) refer to the status and character of the tenure holder in relation to the holding on the appointed day. The accrual of the status of bhumiswami by such person was automatic and he acquired all the rights and became subject to all the liabilities conferred or imposed upon a bhumiswami by or under the Code. As a necessary corollary, he became subject to the provisions of Section 164. Section 164 provides that subject to his personal law, the interests of a bhumiswami shall, on his death, pass by inheritance, survivorship or bequest, as the case may be. On a combined reading of Section 158(1)(b) and 164, the legal consequence that ensued was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of inam lands under the Jagir Manual of the Holkar State, stood extinguished. On a combined reading of Section 158(1)(b) and 164, the legal consequence that ensued was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of inam lands under the Jagir Manual of the Holkar State, stood extinguished. After the conferment of bhumiswami rights, the incidents and character of the tenure became transformed and the restrictions placed thereon disappeared, and such lands became capable of being held in joint ownership like any other coparcenary property. It must logically follow that the conferral of bhumiswami rights on the holder for the time being under Section 158(1)(b) of the Code in respect of ancestral inam lands must necessarily enure to the benefit of all the members of the joint family." 36. The Supreme Court in Anant Kibe 1984 (Supp) SCC 175 (supra), further considered the decision of the M.P. High Court in Maniram Maksudam AIR 1960 MP 7 (supra) in paragraph 17 of its report and held that the statutory bar of impartibility and inalienability is removed by virtue of the provision contained in Section 39(1) of the Act of 1950 and therefore the lands which were joint family lands subject to statutory restrictions assumed the character of normal joint family property free from the statutory restrictions. Thereafter, subsequently, in the matter of Dattatraya alias Prakash and others Vs. Krishna Rao alias Lala Saheb Baxi through LRs. and others 1993 Supp (1) SCC 32 the Supreme Court has followed the decision rendered in Anant Kibe 1984 (Supp) SCC 175 (supra) and held as under:-- "31.... From the impugned judgment it is clear that there are plethora of precedents of Madhya Pradesh High Court that after the abolition of the estates under the Act the lands became joint family properties which received approval from Anant Kibe v. Purushottam Rao 1984 (Supp) SCC 175 relied on by Sri Bobde. Therein this Court held that the combined effect of Sections 158(1)(b) and 164 of the M.P. Land Revenue Code was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were granted in terms of the grant of inam lands under the Jagir Manual stood extinguished. Bhumiswami right was conferred on the holder of the land i.e. Dwarkanath. Bhumiswami right was conferred on the holder of the land i.e. Dwarkanath. In Madhya Bharat Land Revenue and Tenancy Act, 1950 by operation of Section 54(7), 69 and 82 the lands become the pucca tenancy of bhumiswami i.e. Dwarkanath. Therefore, the devolution of the right of pucca tenancy is by succession opened to appellants 1 and 2. Accordingly we hold that Items 2, 3 and 5 of schedule 2 lands become the properties of the appellants." 37. Subsequently, in the matter of Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs and others (1995) 2 SCC 543 , the Supreme Court following the decisions rendered in Anant Kibe (supra) and Nagesh Bisto Desai (supra) has held that impartible estate does not by itself become exclusive property of holder, it ceases to be joint family property only when junior members of the family renounce their right to succession to the estate. 38. In the matter of N. Padmamma and others Vs. S. Ramakrishna Reddy and others (2008) 15 SCC 517 , the Supreme Court has clearly held that law of primogeniture is no longer applicable in India, such a provision may be held to be unconstitutional being hit by Article 14 of the Constitution of India. 39. The Supreme Court in the matter of Anuj Garg and others Vs. Hotel Association of India and others (2008) 3 SCC 1 has held that the principle of primogeniture also violated the right of women to human dignity as it implied that women were not fit or competent to own and administer property. 40. In view of the aforesaid discussion, the decision of the Supreme Court in Mustafa Khan 1978 MPLJ 382 (supra) is not applicable to the facts of the present case and is clearly distinguishable on facts. 41. 40. In view of the aforesaid discussion, the decision of the Supreme Court in Mustafa Khan 1978 MPLJ 382 (supra) is not applicable to the facts of the present case and is clearly distinguishable on facts. 41. Reverting to the facts of the present case in light of the factual position noticed herein-above and the proposition of law flowing from the judgments of the Supreme Court and the High Court in the above-stated judgments (supra), it is quite vivid that Bodhsingh inherited the suit property as a Mahfuza Thekedar under the Act of 1917 as such, the said estate was impartible and inalienable, but after coming into force of the Act of 1950 and after passing of order by the Deputy Commissioner under Section 39(1) & (2) of the Act of 1950, Bodhsingh got the right of occupancy tenant and the said right of occupancy tenant was converted into Bhumidhari right by virtue of the provisions contained in Section 147 of the Code of 1954 with effect from 1-11-1956 and said Bodhsingh became Bhumiswami by virtue of the provisions contained in Section 158(1)(a) of the Code of 1959 with effect from 2-10-1959 and further, by virtue of the provisions of the Act of 1950, the property of the protected Thekedar has become the joint Hindu family coparcenary property of the family of the Thekedar being partible which can be partitioned at the instance of any of the cosharers as a matter of right and therefore the finding recorded by the trial Court that the suit property being impartible cannot be subjected to partition, is contrary to the well settled law in this regard and the first appellate Court has also perpetuated the illegality by affirming the finding recorded by the trial Court holding the suit property to be impartible as such, the judgments & decrees passed by both the Courts below are liable to be and are hereby set aside. 42. Since, now the findings of the trial Court recorded in issue Nos. 1, 2(b), 2(c), 2(d) and 3 have been reversed by the first appellate Court and which have already been set-aside by this Court in the preceding paragraph and the property is held to be partible and the suit has been dismissed only on the ground that the suit property is not partible which is impartible and which is held to be partible by this Court. 43. 43. In consequence of the aforesaid analysis, the second appeal is allowed and the plaintiffs' suit is decreed and the plaintiffs are declared owners and title-holders of the properties shown in Schedule B of the plaint. Consequently, the defendants/private respondents herein, upon whom right, interest and title of the original defendants except respondent No. 5 have been devolved, shall deliver the peaceful possession of the properties shown in Schedule B of the plaint to the plaintiffs within two months from the date of decree of this Court. The defendants will bear the costs of the plaintiffs throughout. 44. The substantial question of law is answered accordingly and the second appeal is allowed to the extent indicated herein-above leaving the parties to bear their own costs. 45. A decree be drawn-up accordingly.