M.V. Tamaskar, J.
1. This second appeal has been filed against the judgment and decree passed in First Appeal No. 178-A/1981 decided by Xth Additional Judge to the Court of the District Judge, Indore, on 21-4-1986, arising out of Civil Suit No. 28-A/1979 decided on 29-7-1981 by the Civil Judge, Class II, Sanwer.
2. This appeal was admitted on the following questions of law :
'(i) Whether the learned Judge having found that lands in suit are admittedly ancestral properties, has not erred in passing a decree for partition in favour of the plaintiff?
(ii) Whether the learned Judge has not erred in invoking Section 14 of the Hindu Succession Act for founding a right in the plaintiff to claim partition?'
3. The material facts which are involved in this appeal are as under :
One Bondar had two sons - Bhagirath and Chitar. Bondar died some 50 years back. Bondar's other brother namely Kisan also died after the death of Bondar. Bhagirath had one son and one daughter - Jagannath and Ramkunwarbai. Jagannath died 40 years back. Bhagirath and Chitar both died. Kanhaiyalal defendant No. 1 is the son of Chitar and Ambaram-Defendant No. 2 is other son of Chitar, Jagannath died before 1950.
4. It is admitted that Ramkunwarbai, after her marriage, was residing with her husband in another village. On the death of Bondar, Bhagirath and Chitar were entitled to the property in equal share. On the death of Jagannath, sons of Chitar-Kanhaiyalal and Ambaram-Defendants Nos. 1 and 2, being sole surviving co-parceners of the joint family, the property devolved on them.
5. It is alleged that vide document Ex.D-1-written in 1953 and Ex. D.2, Ramkunwarbai was given certain right to collect grass and some fruits of mango grove, right in respect of agricultural land, i.e. 18.55 acres was ever given to her. Some time in the year 1953 on the basis of the documents Exs. D.1 and D.2, name of Ramkunawarbai was entered in revenue papers and on the basis of the said entry, Ramkunwarbai claims that she became the full owner of the said property under Section 14 of the Hindu Succession Act, 1956 (for short the Act).
6. The trial court and the lower Appellate Court decreed the suit of the plaintiff-Ramkunwarbai holding that Bhagirath and Chitar had equal shares, therefore, on the death of Bhagirath and on the death of Jagannath, Ramkunwarbai alone succeeded to the half share in the agricultural property. Lower Appellate Court also confirmed the said finding. Against the said judgment and decree, this second appeal has been preferred.
7. Shri G. M. Chaphekar, learned counsel for the appellants/defendants submitted that both the courts below failed in deciding the crucial legal question as to the law applicable to the parties. In the Indore Land Revenue and Tenancy Act No. 1 of 1931, vide Section 54, the disposal of rights on death of pattedar tenant was governed by law i.e. on the death of pattedar tenant his rights in the holding shall pass by inheritance in accordance with his personal law, subject to such modification thereof as had been recognised in the Holkar State prior to the commencement of the Act. Shri Chaphekar, submitted that law as applicable and as modified law of inheritance as was applicable to the Hindus and therefore, the suit property which was admittedly joint family property, no interest was created in favour of the plaintiff under any law and as such plaintiff was not entitled to right in the property having been married long before 1956 and not being in possession of the property as limited owner before coming into force of the Act, Shri Chaphekar vehemently submitted that under Section 14, which is followed by explanation, it is clear that the property which was immediately held by a woman before coming into force of the Act, only could become absolute. Shri Chaphekar relied on the decision of Supreme Court reported in AIR 1966 SC 1879, Eremma v. Verrupana and others. The word 'possessed' as a definite meaning under Section 14 of the Act. He also relied on a proposition of law from Mayne's Hindu Law, 13th edition, page 966 as also AIR 1966 SC 1879 (supra) further followed in AIR 1970 SC 1019, Dindayal and Anr v. Rajaram. It was stated that when a Hindu woman claims to be in possession of the property, the word 'possessed' under Section 14 of the Act, two things are necessary :
(a) She must have had a right to the possession of the property and
(b) She must have been in possession of that property either actually or constructively.
8. Shri Chaphekar contended that no law or no right can be claimed merely because name of the plaintiff was mutated in the revenue papers. The rights follow only under the law and not because of the entries made in the revenue papers.
9. The provision of Section 54 of the Indore Land Revenue and Tenancy Act was considered by the Court in the Second Appeal No. 293/60 decided on 18-8-1962 in which it has been held that:
'The learned counsel for the appellants urged that such a suit for a declaration that Parwatibai had no interest in the suit property was not tenable, as it would be beyond the scope of Section 42 of Sp. Rel. Act. The said section is as follows :
'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.'
It is clear that a declaratory suit is tenable at the instance of a person entitled to a legal character or to any right as to any property. A declaration that another person is not entitled to a legal character cannot be tenable by virtue of Section 42 of Sp. Rel. Act. However, this aspect need not detain us any further, as in my opinion, it would be competent for the court to enquire into the question of title of Parwatibai. Therefore, thought and plaint may have been defectively framed, the question of 3Parwatibai's title could certainly be gone into for the purpose of deciding whether the first respondent was entitled to claim specific performance.
The learned judges of the courts below did not pay proper attention to this aspect. The learned appellate Judge merely purported to decide the question with reference to Section 34 of the M.B.L.R. and T. Act Samvat 2007 without paying attention to the fact as to what law was in force in that Indore State when the succession or inheritance opened the death of Nanda in the year 1912. The MBLR and T. Act, Sam. 2007 came into force in the MP Region one month after its publication in M. B. Gazette, that is, on 15-5-1950. Therefore, this Court has to determine the question as to what rights the heirs of Nanda got upon his death in 1942. Prior to the MBLR and T. Act, Sam. 2007 (Act No. 66 of 1950) the Indore Land Revenue and Tenancy Act No. 1 of 1931 was in force. Section 54 of the said Act provided as follows :
'On the death of pattedar tenant his rights in the holding shall pass by inheritance in accordance with his personal law, subject to such modification thereof as has been recognised in the Holkar State prior to the commencement of this Act. If, when the pattedar tenant dies, there is no one entitled to succeed, his rights in the holding shall revert to Govt.'It was urged by the learned counsel for the first respondent that the effect of the said section was that the inheritance to the pattedar tenancy was to be governed in accordance with the personal law subject to modification recognised. In the Holkar State prior to the commencement of this Act. Therefore, it was suggested that the personal law, as modified in future would not govern the question of inheritance to pattedar tenancy. I may only observe that the word 'personal law' as used in this sec. is subject to the modification that may be made in the law from time to time with reference to the point of time, which is material for the purpose of deciding a particular question. The fact that the personal law is made subject to the modification recognised in the Holkar State prior to the commencement of the said Act does not exclude the application of the personal law, as modified in future. If that were the position, we would be led to an impossible situation where the question of inheritance would have to be decided with reference to the time when Nanda was alive. That, evidently cannot be permitted. It has to be decided with reference to the time when he died, that is, 1942 A.D. The state of the personal law in force then will have to be looked into to ascertain the question of inheritance.'
This judgment was based on a Full Bench judgment reported in 1949 MBLR 11, wherein it has been held that the phrase 'inheritance' in Section 54 of the Indore L.R. and T Act 1931, would not only mean inheritance, but also include succession, that is to say in this case succession by survivorship which is personal law between the parties, Succession is not stopped or restrained, but it opens since there is death, that is the starting point for claiming the rights over the properties.
10. Shri Chaphekar took me through the pleadings, evidence and findings recorded by the Courts below and stated that even though the courts below came to the finding that the death of Jagannath and all other co-parceners had taken place much before 1950 and as such the law as it then was, Ramkunwarbai cannot acquire any title over the property by virtue of Exs. D.1 and D. 2.
11. That no right is acquired by mere mutation of the name in the revenue papers as is held in AIR 1926 PC 100 and SA. 31/79 referred to earlier.
12. On the admitted facts, therefore, question is whether Ramkunwarbai acquired any right or title or interest in the property. Reference was also made to Section 82 of the Indore Tenancy and L. R. Act. However, Section 82 has no reference to the present case'. The relevant date for taking into consideration is the date of death of Bhagirath and Jagannath. Reliance is also placed on AIR 1959 SC 577, Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and ors. where word 'possessed' has been stated thus :
'The opening words 'property possessed by a female' obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. That possession might have been either actual or constructive or in any form recognised by law, but, unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word 'possession' in its widest connotation, when the Act came into force the section would not apply.'
13. Shri Bhagwat, learned counsel for the plaintiff-respondent submitted that the law applicable would not be law of survivorship, but law of inheritance. He stated that Ramkunwarbai being the only surviving member of the family of Bhagirath, after the death of Jagannath would be entitled to the half share which Bhagirath would have received on the death of Bondar. He stated that the plaintiff being the daughter of Class-I heir would be entitled to inherit properties. He relied on AIR 1931 Bom. 25. He also relied on Mulla's Hindu Law Article 43 and places strong reliance on Hindu Law (Amendment) Act, 1929. He stated that some property can also devolve on the plaintiff as well as the respondent. Therefore, the co-parcener alone would not be entitled to inherit property. He did not dispute the position that the death of Jagannath took place long back, in any case, much before 1956.
14. Shri Bhagwat learned counsel for the respondent submitted written arguments after hearing. He strongly pleads that there was obstructed heritage. Relying on passage from Mulla's Hindu Law Articles 218 and 230 he states that the property was separated in the year 1931 and under circular No. 13 of 1908 would apply to the interest of tenure holder would devolve by inheritance. As regards the property being separate there does not appear to be any evidence. As such, the argument of the learned counsel is misconceived and cannot be allowed to be raised for the first time in second appeal.
15. As regards the argument relating to only if there was no one to claim the property as a co-parcener by survivorship. In the instant case it is found that the property devolved by survivorship immediately after the death of Jagannath. In this view of the matter, this argument of the learned counsel for the respondent also fails.
16. He raised yet another point that the appeal abated as Ambaram died on 8-4-1987 as he was not brought on record. However, it is admitted fact that the fact having come to knowledge, this court on 15-11-1989 directed that L. Rs. of Ambaram may also be brought on record. In view of this matter all the L. Rs. are on the record. It was submitted by the learned counsel for the respondent that no person can be brought on record as legal representatives until an application has been made. He strongly relied on AIR 1965 SC 1049, Dayaram and ors. v. Shy am Sundar and ors. It is also submitted that all the parties were joined within the period of limitation. In my opinion there has been no abatement of the appeal as all the L. Rs. are on record. The argument of the learned counsel that unless an application is made, even if the L. Rs. are brought on record, the appeal would be incompetent. I do not agree with the said proposition.
17. As regards the proposition that Ramkunwarbai would succeed by virtue of mutation of her name in the year 1953, in the revenue papers, and that law of inheritance would be applicable, it should well be remembered that mere mutation does not confer title and the law applicable was personal law prevalent in Holkar State. It is needless to say that a new case cannot be allowed to be made out in the second appeal. When parties had all along been contesting on the basis of the property was joint family property new case could not be set up. A reference may be made to evidence of Salagram P. W. 2, who has categorically stated that the property was joint family property.
18. No inference of joint possession could be drawn by the lower appellate court for the reason that Ramkunwarbai could not be treated as co-parcener and possession of defendants could not be held to be of a co-parcener for and on behalf of all members of the joint family. Further it is incorrect to say that there was a partition. No partition can be inferred on the basis of Ex. D. 1 and Ex. D. 2 as is arrived by the lower appellate court.
19. Having considered the argument, I am of the view that both the courts below fell in error in respect of the law applicable to the parties. Since the parties are Hindu, law of survivorship would apply and on the admitted fact, the defendant-appellants alone succeeded to the property of Bondar. This appeal therefore succeeds and is accordingly allowed with costs. The judgment and decree passed by the courts below are set aside. Counsel's fee as per schedule, if certified.