# DAYARAM & ORS v. DAWALATSHAH ?!< ORS

- **Citation:** [1971] 3 S.C.R. 324
- **Court:** Supreme Court of India
- **Decided:** 1971-01-08
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dayaram-ors-v-dawalatshah-ors-5197
- **Pages:** 16

## Headnote

Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahal•,
Alienated Lands) Act 1 of 1951-,SS. 3, 14-S. 14 scope of-,Section
on(v .. infenil~d to determine the Proprietary rights in lhe land qua the
State-,-Dhanora-Zamindari-Succession by lineal primogeniture-'Neaf·
4!st male relati,ve' does not mean eldest male re/aiive.
Under the Chanda Patent and the terms recorded in the Wajibul-Arz
the 'Dhanora Zamindari was impartible and on the death
df the holder
it devolved upon his eldest son and in the absence of a legitimate or an
adopted son it devolved upon the nearest male relative. The succession
to the· Zamindari was subject to the power of the Governor to dispossess
a. person found unfi( to observe the conditions of loyalty, good police
11dministration and improvement of the estate. The respondent instituted
an action for possession of certain immovable properties including the
zamindari and for recovery of compensation, in respect of ma/guzari
land•, paid to the appellants in consequence of the enactment of the
· Madhya Pradesh Abolition of Proprietary Rights ·· (Estate,
Mahals,
Alienated Lands) Act, 1951.
They claimed the Zamindari relying upon
the rule of primogeniture and other estates as devisees under a Will. The
trial court decreed the suit and the High Court affirtned the decree with
o.light modifications. In the appeal to this Court the a~~ellants urged that
(I) the Zamindari devolved on the death of the holder on the male relative who is senior most in age and not the eldest member in the senior
line; (2) by the order of the Governor the Zamindari was conferred upon
the first appellant as he was fotind suitable to hold the zamindari and
since the Governor had thC' power to det~rmine inheritance and the right
to remove a person, the holder of the zamindari had merely a life interest;
and (3) the compensation officer had decided by his order under s. 14
-Of the Act that compensation in respect of malqutari land was. payable
to the first appellant and since no suit was filed by the plaintiffs for setting aside that decision within the period specified, the order of the compensation officer bec•me final and conclusive.
HELD : (I) By the 'JSO of the expression "the nearest male relative"
the test of propinquity alone may be applied and when there are two or
more claimants equally teJ110Ved from the common ancestor the eldest
male member in the senior most line will be preferred. The contest between the parties had to be adjudged in the light of the rules of lineal
pdmogeniture governing an impartible estate.
In determining a single
heir according to the rules of primogeniture the class of heirs who would
A
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A
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DAYARAM v, DAWALATSHAH (Shah, C.J.)
325
be entitled to succeed the property if it were partible must be ascertained
first, and then the single heir applying the special rule must be selected.
By the expression "nearest male relative'' it was not intended to confd:
the estate upon the eldest male relative of the Zamindar. The High Court
was, therefore, right in holding that the Zamindari devolved upon the
first respondent to the exclusion of the first appellant. [333 C-F]
(2) The power vested in the Governdr to take extraordinary steps
to protect the interest of tho zamindari by the removal of the,..bqlder did
not restrict the title of the zamindar to a mere life interest. Tiie power
had to be exercised in accordance with the custom of the famjly and an
order by the Governor purf'orting to exercise powers under the Chanda
Patent contemplated a quasi judicial inquiry.
The order does not show
that any lnquiry was made for determining the rights of the contesting
claimants. [334 G]
(3) Section 14 of Act 1 of 1951 does not invest the compensatioo
officer with jurisdiction to determine competing claims of persons claiming proprietary rights to the property vested in the Government by the
operation of s. 3 of the Act. Section 14 is intended to determine only
the proprietary rights in the

## Text

_Characters 0–39,861 of 40,487. This is a partial read: ask again with offset=39861 for what follows._

324
DAYARAM & ORS.
v.
DAWALATSHAH ?!< ORS.
January 8, 1971
[J. C. SHAH, C.J., K. S. HEGDE AND A. N. GROVER, JJ.]
Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahal•,
Alienated Lands) Act 1 of 1951-,SS. 3, 14-S. 14 scope of-,Section
on(v .. infenil~d to determine the Proprietary rights in lhe land qua the
State-,-Dhanora-Zamindari-Succession by lineal primogeniture-'Neaf·
4!st male relati,ve' does not mean eldest male re/aiive.
Under the Chanda Patent and the terms recorded in the Wajibul-Arz
the 'Dhanora Zamindari was impartible and on the death
df the holder
it devolved upon his eldest son and in the absence of a legitimate or an
adopted son it devolved upon the nearest male relative. The succession
to the· Zamindari was subject to the power of the Governor to dispossess
a. person found unfi( to observe the conditions of loyalty, good police
11dministration and improvement of the estate. The respondent instituted
an action for possession of certain immovable properties including the
zamindari and for recovery of compensation, in respect of ma/guzari
land•, paid to the appellants in consequence of the enactment of the
· Madhya Pradesh Abolition of Proprietary Rights ·· (Estate,
Mahals,
Alienated Lands) Act, 1951.
They claimed the Zamindari relying upon
the rule of primogeniture and other estates as devisees under a Will. The
trial court decreed the suit and the High Court affirtned the decree with
o.light modifications. In the appeal to this Court the a~~ellants urged that
(I) the Zamindari devolved on the death of the holder on the male relative who is senior most in age and not the eldest member in the senior
line; (2) by the order of the Governor the Zamindari was conferred upon
the first appellant as he was fotind suitable to hold the zamindari and
since the Governor had thC' power to det~rmine inheritance and the right
to remove a person, the holder of the zamindari had merely a life interest;
and (3) the compensation officer had decided by his order under s. 14
-Of the Act that compensation in respect of malqutari land was. payable
to the first appellant and since no suit was filed by the plaintiffs for setting aside that decision within the period specified, the order of the compensation officer bec•me final and conclusive.
HELD : (I) By the 'JSO of the expression "the nearest male relative"
the test of propinquity alone may be applied and when there are two or
more claimants equally teJ110Ved from the common ancestor the eldest
male member in the senior most line will be preferred. The contest between the parties had to be adjudged in the light of the rules of lineal
pdmogeniture governing an impartible estate.
In determining a single
heir according to the rules of primogeniture the class of heirs who would
A
B
c
D ,
E
F
G
H
A
B
c
D
E
F
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DAYARAM v, DAWALATSHAH (Shah, C.J.)
325
be entitled to succeed the property if it were partible must be ascertained
first, and then the single heir applying the special rule must be selected.
By the expression "nearest male relative'' it was not intended to confd:
the estate upon the eldest male relative of the Zamindar. The High Court
was, therefore, right in holding that the Zamindari devolved upon the
first respondent to the exclusion of the first appellant. [333 C-F]
(2) The power vested in the Governdr to take extraordinary steps
to protect the interest of tho zamindari by the removal of the,..bqlder did
not restrict the title of the zamindar to a mere life interest. Tiie power
had to be exercised in accordance with the custom of the famjly and an
order by the Governor purf'orting to exercise powers under the Chanda
Patent contemplated a quasi judicial inquiry.
The order does not show
that any lnquiry was made for determining the rights of the contesting
claimants. [334 G]
(3) Section 14 of Act 1 of 1951 does not invest the compensatioo
officer with jurisdiction to determine competing claims of persons claiming proprietary rights to the property vested in the Government by the
operation of s. 3 of the Act. Section 14 is intended to determine only
the proprietary rights in the land qua the State. (339 D-E]
C1VIL APPELLATE JURISDICTION: Civil Appeal No. 2433 of
1966.
Appeal from the judgment and decree dated August 2, 1965
of the Bombay High Court, Nagpur Bench in Appeal No. 113 ct.
195 9 from original decree.
V. S. Desai, v. N. Swamy, K. Rajendra Chaudhuri and K. R.
Chaudhuri, for the appellants.
M. N. Phadke and A. G. Ratnaparkhi, for the respondeints.
The Judgment of the Court was delivered by
Shah, C.J. Dawalatshah and Ranwirshah-sons of PrataP"
shah-instituted an action in the Court of the Additional District
Judge, Chanda, for a decree for possessi'ln of property immovable
(including the Zamindari of Dhanora) and movable specified in
the Schedules annexed to the plaint, and for an order for payment
of mesne profits and also for recovery of the amount of compensation in respect of certain lands received by the defendants from
the Government of Madhya Pradesh and for an order dedaring
326
SUPREME COURT REPORTS
[1971]3 S.C.R.
their right to receive the balance of compensation remaining to
be paid.
The plaintiffs relied upon the fqllowing genealogy :
Niru
Thakur .
Sitaram
Thakur
Bhakta
Thakur
Tanba
Thakur
Nilkanthshah
Pratapshah
Gangashah
I
Sakru
Thakur
; Daw~ltshah
(Platff.
Ranwirshah Gutab
(Platff.
Shah
No. 2) (dead)
Hanmantrao
Diwakarrao
(Die•J Sept.,
8, 1932)
No. I)
An1arshah Bao;u
Died Dec. 9,
1950)
Chandarshah
(dead)
Ball•rshah
Kajur.
Thakur
Chatturshah
(dead)
Lallshah
(•lead)
Karanshah
(dead)
Karansl"'ah
Day2ran1
(Deft. dt. No, 1)
Indershah
(Deft. No. 2)
Govinda
Bud ha
Raju
Thakur
Niranshah
I.axman
(dead)
A
B
c
D
E
F
G
The plaintiffs claimed that the property in
suit originally u
belonged to Gangashah. Gangashah had· five sons : Hiru, Bhak:ta,
Sakru, Kajur and Raju.
The branches of Sakru and Kajur
became extinct a long time ago.
The branch of Hiru (who was
A
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G
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DAYARAM V. DAWALATSHAH (Shah, C./.)
327
the eldest among the five sons of Gangashah) because extinct with
the death of Amarshah on December 6,
1950. The plaintiffs
claimed the Zamindari held by Amarshah relying upon the rule
of primogeniture, and the other estate of Amarshah as devisees
under the will of Amarshah executed on December 3, 1950. They
submitted that the Dhanora Zamindari was granted to Sitaram
ancestor of Amarshah as an impartible estate, devolv~rig by the
rule of primogeniture; that the Zamindari on that account devolved on the death of Amarshah upon Pratapshah and that on
the death of Pratapshah and Zamindari devolved upon the first
plaintiff.
The plaintiffs also claimed that the other property including Malguzari lands devolved upon
them under a will
executed on December 3, 1950 whereby Amarshah devised his
estate in their favour.
Accordingly the first
plaintiff claimed
that he was entitled to the Zamindari on the death of Pratapshah
on January 27, 1951 and the plaintiffs claimed the other estate of
Amarshah as devisees under his will.
The plaintiffs submitted
that Dayaram the first defendant took wrongful possession of the
Zamindari and other property,
movable and immovable of
Amarshah.
The defendants by their written statement maintained that the
genealogical table set up by the. plaintiffs was incorrect, that by
the order of the Governor of Madhy11. Pradesh dated November
9, 1951, the Zamindari was conferred upon the 1st defendant
Dayaram as he was found suitable to hold the Zamindari and the
decision of the Governor was bidding upon the plaintiffs; that the
decision of the Compensation Officer regarding Malguzari lands
which vested in consequence of the enactment of the Madhya
Pradesh Abolition
of Proprietary Rights
(Estates, Mahals
Alienated Lands) Act 1 of 1951, had become binding and conclusive against the plaintiffs because no suit challenging the decision was instituted within two months from the date thereof andthe plaintiffs were on that account not entitled to claim the compensation paid or payable in respect of the Malguzari lands; that
Amarshah did not execute the will set up by the plaintiff~ and
that Amarshah had made a will dated December 8, 1950 under
which his estate was devised in favour of the defendants.
The Trial Court held that the Dhanora Zamindari was impartible and was governed by the rule of primogeniture and Pratap,
shah father of the plaintiffs being the eldest member of the seniormost branch from among the descendants of the cc:nmon ancestor
Gangashah was entitled to the Zamindari; that the plaintiffs were
entitled to receive compensation in respect of the Malguzari lands
and the decision of the Compensation Officer did not operate to
deprive the plaintiff of the right to those lands or compen~ati~n
payable in respect thereof; that the will >et up by the plamttffs
32S
SUPREME COURT REPORTS
[1971]3 S.C.ll.
dated .Decen_iber ~, 1950 was genuine and the plaintiffs . were
A
under. the will entitled. to the estate devised in their favour by
Amarshah; that the will dated December 8, 1950, set up by the
defendants was "a fabricated will" and conferred no right or title
upon the. defendants; and that the genealogical table set up by
the plamttffs represented the true relationship between the descendan~s of Gangashah.
B
In appeal jJy the defendants, the High Court of Bombay confirmed the decree of the Trial Court with a slight modification.
Th~ l;ligh Court held that the gen~alogical table set up by the
plamttffs was correct, that accordmg to the custom governing
succession Dhanora Zamindari devolved upon Pratapshah on the
C
death of Amarshah, and on the death of Pratapshah the fir~tplaintiff became entitled to the Zamindari, that the order of the Governor recognising Dayaram as Zamindar was not binding and conc:usive, for it was not shown that in making the order the Governor had acted in exercise. of the power conferred by the Chanda
Pat~nt; that the order was contrary to the customs and the law
governing the Zamindari; that the decision of the Governor did
D
not oust the jurisdiction of the the Civil Court; that the will dated
December 8, 1950·set up by the defendants was not genuine and
the will set up by the plaintiffs dated December 3,
1950, was
genuine; anci that the plaintiffs' suit with regard to Malguzarl
lands was not barred by the decision of the Compensation Officer.
The High Court accordingly confirmed the decree passed by the
E
Trial Court in respect of the Zamindari replying upon the rule of
inheritance incorporated in the Wazibul-Arz of the Ch<.aua District and by succession under the will dated December 3, 1950
in respect of the other property except as to certain occupancy
lands held by Amarshah.
With certificate granted by the High Court the defendants
F
have appealed t'J this Court.
Certain concurrent findings on which not much argument was
advanced at the Bar may first be set out. The High Court agreeing
with the Trial Court on appreciation of evidence held: that the
2enealogy set up by the plaintiffs represented the true relationship
G
between the parties.
Again the High Court agreeing with the
Trial Court held that the will dated December 3, 1950 set up by
the plaintiffs .was genuine while the will dated December 8,
1950 set up by the defendants was not genuine.
The argument
that the High Court did not give due weight to certain important
circurnstances in reaching \their conclusion relating to the will set H
up by the plaintiff is with9~t
~ubstance.
~he c_ircumstances
relied upon are that the wntmg mstrument with which the ix?dY
of 1he will was written and the writing instrument with which
••
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1.
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DAYARAM v. DAWALATSHAH (Shah, C.J.)
329
Amarshah, it was claimed, signed or executed the will were different, that the will ..vas not registered, that the appearance of the
will was suspicious, that the will was unnatural because it devised
the estate in favour of the plaintiffs after giving a life interest in
favour of the testator's widow Ratnabai, that the will haq not
been produced before the revenue authorities and before the Compensation Officer when disputes in relation to the estate of Amarshah were pending before those authorities, and that it was produced for the first time nearly seven years after the death of
Amarshah, and that the scribe who wrote the will did not belong
to the village to which Amarshah belonged.
The Trial Court and
the High Court have reached the conclusion that on the circumstances no suspicion as to the genuineness of the will dated December, 1950 arose. It may be noticed that the plaintiffs were, at
the date of their father's (Pratapshah's) death minors, and soon
after Pratapshah's death, their mother abandoned them and remarried.
Thereafter ~o one attended to the pending litigation.
Failure to produce the will before the revenue authorities was·
therefore not a circumstance in the view of the
High Court,
which militated against the genuineness of the will.
In the view
of the Courts absence of registration, appearance of the will, the
contents thereof, the dispositions, thereunder, and the fact that
the writer of the will belonged to another village did not in the
circumstances of the case give rise to any suspicion.
We do not
think that sitting in appeal we would be justified in interfering
with the conclusion recorded by the Trial Court and confirmed
by the High Court on what is essentially a conclusion on a question of fact.
The will set up by the defendants is not proved to be a genuine
will executed by Amarshah.
This again is a concurrent finding
of the two Courts and must be accepted in this · Court. No
argument has been advanced to pursuade us to take a. different·
view. The rights of the parties must be adjudged i11 the light of
these findings.
The dispute between the parties relates to three set of properties-
(a) Dhanora Zamindari
(b) Malguzari lands;
( c) Occupancy lands and movables.
The ancestors of the parties held an extensive Zamindari in
the Chanda District.
After the advent of the British rule, in !!lat
region, the ~eyenue authorities commenced settlement op:ratio~s.
An inquiry was held by the Settlement Officer in connechon with
the lands held by the family of the. parties and statements of some
330
SUPREME COURT REPORT~
[1971]3 S.C.R.
members were recorded.
Chattarshah s/o Kajur stated th:1t the
Zamindari of Dhanora was standing in the name of his cousin
Sitaram and that all the members of the family were joint and
maintained themselves out of the income from the Zamindari. In
his statement Sakru admitted that the rule of primogeniture prevailed in the family.
He stated that Hiru was his eldest brother
and Sitaram was the son of Hiru and the Zamindari was recorded
in the name of Sit~ram according to Awwal Haqq i.e. rule of
primogeniture from ancient times, even though he was senior in
age, and that there was no quarrel between him and Sitaram and
that he and Sitaram were living jointly and were taking the income
from the Zamindari.
The Settlement Officer made an order on November 2, 1867
that the "Zamindari is of ancient tenure and the present Zamindar
Sitaram Thakur has proved his right to be Zamindar.
Subject to
A
B
c
the conditions to be embodied in patent of proprietary right.
I
·confer proprietary right in the Zamindari of Dhanora on Sitaram
Thakur".
The Settlement Officer observed that conferment of
proprietary rights was subject to conditions to be embodied in a
D
patent qf proprietary rights.
It may reasonably be inferred that
a formal grant was made in favour of Sitaram.
The form of the
grant which is known as "Chanda Patent" is reproduced in
Aitchison's "Collection of Treaties, Engagements and
Sanad<;"·
Vol. II, pp. 573-574.
Under the Chanda Patent it was declared
that the tenure shall be indivisible, and non-transferable (save to E
to the nearest male heir the transfer in such case being subject to
the app:uval of the Chief Commissioner) the land shall be held
by one person, the Zamindar or Zamindarin for the time being
and shall be held on conditions of (i) loyalty (ii) good police
administratioQ and (iii) improvement and cultivation
of
the
estate.
Clauses V, VI, VII of the grant relating to succession to
F
the Zamindari held under the Patent :
"V. Subject to the provisions contained in Clause
VI, tbe-order of succession shall be as under:-
On the death of the Zamindar,
the estates shall
devolve upon his eldest son. · In default of a son,
and when adoption has not taken place, the succession should preferably devolve on the nearest
male 'kinsman, the widow
receiving
a suitable
riiaintenance.
VI. In the event of the first in order of succession
being, in the opinion of the local Government, unfit to
carry out -the conditions of Clause IV, the Zamindaree
shall devolve upon the nearest heir who possesses the
required qualification.
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DAYARAM V. DAWALATSHAH (Shah, C.J.)
331
VII. The Zamindar, in the case of gross misconduct, shall be liable to removal by the local Government; and if such removal be ordered, the succession
shall take place as if the Zamindar removed had died.''
Tenure of the grant is entered in
the
Wajibul-arz.
The
relevant recitals in the Wajibul-arz are as follows :
PART-I
Rights and liabilities of Zamindar in relation to Government.
(1) Watan
Zamindar's Watan is not partible and it cannot be given to
anyone other than quite close (the nearest) male heir.
Changes
taking place in this way should have sanction of the Governor-inCouncil.
The Zamindari shall be in the name of only one person
and the Zamindari has been granted to the Zamindar in pos!liession at present on the conditions of this remaining Joyal to the
Government, managing his estate properly and improving
the
cultivation.
(2) Heirs
On the death of Zamindar the estate shall devolve upon his
eldest son. If there is no legitimate or adopted son, it shall
devolve upon a very close (the nearest) male relative. If there
arises a dispute regarding right of inheritance, the Governor-inCouncil will decide it in accordance, with the custom in that
family.
If the Governor-in-Council finds that the first heir is
unable to abide by the conditions stated in BAB (clause). the
Zami11dari shall be granted to a quite close (the nearest)
male
heir possessing the necessary qualifications.
( 3) Dispossessing the Zamindar and forfeiting his rights.
Governor-in-Council may dispossess the Zamindar on account
of his behaviour and bad administration.
Such dispossession may be for a few days or permanent. If it is for a
few days, the Deputy Commissioner will manage the Zamindari
on behalf cf the Zamindar and if the order of dispossession is
permanent, the Zamindar shall so to say be deemed to have died
and the heir will get the right." The entries in the Wajibul-ar~
substantially reproduce the terms of the Chanda Patent as set out
in Vol. II of Aitchison's "Collection of Treaties, Engagements
and Sanads".
One Major C. B. Lucie Smith made a report relating to the
Land Revenue settlement of the Chanda District, Central Pro·
vinces, 1869.
At pp. 179 to 180 Major Lucie Smith has referred
to the Zamindarees of the Chanda District.
He has stated under
the heed "Zamindarees".
332
SUPREME COURT REPORTS
[1971 J3 s.c.R.
"The Zamindarees were settled by me; and in order
to explain the principles of settlement adopted i( will be
n~cessary to touch first upon the questions of tenure and
history.
The weight of testimony goes to show that the
Zamindars are the descendants of men on whom were
conferred tracts of country, more or less wild with the
object of their being brought under cultivation and
order maintained.
Naturally, .... while the law was
weak and its administrators distant. the Zamindar, as
the lord on the spot, exercised large powers but powers
apparently never recognised by either the Gond or the
Maratta Government.
He was undobutedly regarded
as a noble, bound to furnish a small contingent when
required by his sovereign; but there is nothing to warrant
to the supposition that he possessed an absolute right
in the. soil; indeed, as far as my experience goes, such a
right is foreign to the ideas of the races of this part
of India.
The rulers of the day evide'.ltly made and unmade
Zamindars at their pleasure; . . . . . .
Under these circumstances it appeared
that
the
Chanda Chiefs, though the Nobles of the Country,
possessed no absolute rights in the soil, and ttiat it rested with Government to confer it; and in conferring it,
to prescribe such conditions as might be deemed fitting.
A scheme of conditions to be embodied in the patent of
proprietary right, and in the administration paper of the
Zamindarees, was therefore drawn up, based upon the
usages actually existing from ancient times; and, with
one exception, the proposed arrangements were sanctioned in their entirety by the Government of India, who
directed that they were to be taken as a generai model
for those to be applied to the Zamindarees of the Bala
ghat district and to the non-feudatory Zamindarees of
Chutteesgurh.
The provision not approved as that on the death of
a Zamindar, the estate should in default of a son,
devolve upon his widow.
This code of succession has
obtained among the Chanda Chiefs from time immemorial, and is the rule not only among them but among
. all olasses of landholders
in
the
district.
It suits
especially the character of the Gond women, ...... .
Government, however, after weighing the arguments
urged, decided that it was conducive to the interests of
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DAYARAM v. DAWALATSHAH (Shah, C.J.)
333
A
the Zamindarees that the succession should devolve only
upon a male member of the hmily, and the clause was
altered accordingly."
Pratapshah and the 1st defendant Dayaram were descendants
of Gangashah and they were related to Gangashah in the same
degree.
But Pratapshah was the descendant of Bhakta, and
B Dayaram was the descendant of Raju. Bhakta was the elder of the
two brothers. It is recited in the Wajibul-arz that the Dhanora
Zamindari is impartible, that on the death of the holder it devolv·
es upon his eldest son and in the absence of a legitimate or an
adopted son it devolves upan the nearest male relative. Devoluti0\11 of the Zamindari closely resembles the traditional _rule of
c lineal P!i?10£~1)iture. If the holder dies leaving him surviving no
son legitimate or adopted, the Zamindari devolves upon a descendant from the common ancestor of the nearest degree and in
the event of there more d11scendants from the common ancestor
being in the same degree, the descendant in the senior line is
preferred.
Succession to the Zamindari is subject to the power
D of the Governor to dispossess a person found unfit to observe the
conditions of loyalty, good police administration and improve•
meint and cultivation of estate. But if the nearest in the line ct
succession is not selected the. estate must be given to the nearest
heir who has the prescribed qualifications and is a successor to the
Zamindar.
When the Zamindar is removed, succession takes
place as if the Zamindar so removed had died.
By the use of the
E expression "nearest male relative" the test of propinquity alone
may be applied and when there are two or more claimants equally
removed from the common ancestor the eldest male member in
the senior r .. ost line will be preferred. · In adjudging the plaintiffs claim the Court must determine whether Pratapshah-fathor
of the plaintiffs, was the ne.arest male relative of Amarshah.
F
On the death of Amarshah there were two male relatives :
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they were Pratapshah father of the plaintiffs and the 1st defendant Dayaram. The contest between them had to be adjud$ed in
the light of the rules of lineal primogeniture governing an 1mpartible estate which are well-established :
Succession is governed by the rules which governs
succession to partible property subject to such modifications only as flow from the character of the impartible
estate; the
only
modification
which
impartibi!ity
suggests in regard to the right of succession is the existence of a special rule for the selection of a sing1e heir
when there are several heirs of the same class who would
be entitled to succeed to the property if it were partible
under the general Hindu law; and in the absence of a
special custom, the rule of primogenitur" furnishes a
ground of preference.
.3.34
SUPREME COURT REPORT~
[1971 ]3 s.c.R .
Subramanya Pandya
Chokka
Talawar v.
Siva Subramanya
A
Pillai ( 1).. In determining a. single heir according to the rule of
pnmogemture the class of helfS who would be entitled to succeed
to the property if it were partible must be ascertained first, and
then the single heir applying the special rule must be selected.
Counsel for the first defendant submitted that under the terms
B
of the Chanda Patent the Zamindari devolves on the death of the
holder on the male relative who is the senior most in age, and not
on the eldest member in the senior line.
There is nothing in the
Chanda Patent which supports that contention.
By the use of
the expression "nearest male relative" the rule of primogeniture
is prescribed, it is not intended to confer the. estate upon the c
eldest male relative of the Zamindar.
Counsel also submitted that under the terms of the Chanda
Patent and the terms recorded in the Wajib-ul-arz the Governor
having the right to determine inheritance and the right to remove
a person who is no~ loyal or does not manage the property or does
not improve the cultivation or ,who is guilty of bad behaviollr or D
bad admi.nistration, it must be. assumed that the holder of the
Zamindari has merely a life interest and on the death of the
holder, the Governor re-grants the land consistently with the rules
of succession according to the law and custom amongst the memebers of the family but subject to the dominant purpose of good
administration and loyalty to the Government.
Counsel for the
E
first defendant relied upon certain circumstances which he claimed established that the interest of the Zamindar was restricted to
hi~ life and on his death there was resumption and re-grant of the
Zamindari by the
Governor.
Counsel
submitted
that
the
Zamindari was impartible and develoved upon the nearest male
heir, that the sanction of the Governor was necessary for transfer,
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and also for recording inheritance, that loyalty, good management and improvement of cultivation were the conditions for
holding the lands and that if the behaviour of the Zamindar was
found unsatisfactory or that he was not capable of good administration he was liable to be removed.
On that ground, said
Counsel, the Government alone was competent to decide a dispute arising out of inheritance.
But the power to take extraG
ordinary steps to protect the interest of the Zamindari by the
removed of the holder does not restrict the title of the Zamindar
to a mere life interest.
The incidents of the tenure are restrictions on the. estate of the Zamindar, but those restrictions do not
make him a mere life-tenant.
Under the Chanda Patent the lands of the Zamindari held by B
the family were confirmed in 1867 in favour of Sitaram.
On his
(1) J. L. R. 17 Mad. 316 at p. 325.
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DAYARAM v. DAWALATSHAH (Shah, C.J.)
335
death they devolved upon Hanmantrao.
There is no evidence
that any fresh grant was made.
On the death of Hanmantrao the
lands devolved npon his son Diwakarrao who died on September 8, 1932.
On the death of Diwakarrao dying without leaving any male descendant there arose a dispute between Pratapshah and Amarshah.
Pratapshah claimed to be the adopted son
of Diwakarrao and on that ground entitled to take the Zamindari.
An inquiry was held and it was decided that Pratapshah failed to
prove the adoption set up by him.
On the death of Amarshah
again without leaving any male lineal descendant disputes arose.
The evidence is not clear as to whether any formal grant was
issued in favour of Sitaram.
There is no evidence that recognition of the heirs of the successive Zamindars was accompanied
by the issue of fresh patents or. grants.
Succession was merely
1ecognised by the revenue authorities.
The argument. that the
grant was for life of the grantee is therefore not supported by the
turns of the Chanda Patent, nor by the entries in the Wajib-ularz. nor by the history of the Zamindari. The right to determine
inheritance it is true vests in the Governor but the power is exercisable in accordance with and not in violation of the custom of
the family.
In determining the heir the Governor is not granting
afresh the Zamindari; he merely determines the successor
in
accordance with the custom of the family.
The right of the
Governor to remove a holder who is disloyal or does not manage
his estate properly or does not improve cultivation or is otherwise of "bad behaviour" or guilty of bad administration, does not
involve a conditlon that the interest of the Zamindar is only for
his life.
When a holder of the Zamindari is removed, the Governor is bound to hand over the Zamindari to the next heir in the
crder of succession if the Zamindar removed had died and the heir
will get the right.
Counsel, then contended that in any event the decision of the
Governor in 1950 declaring Dayaram to be the successor on the
death of Amarshah was binding and conclusive and. could not
be reopened.
Counsel urged that Pratapshah and the 1st defendant Dayaram were related to the common ancestor in the same
degree, and it was open to the Govurnor to select one of the two
members of the family related to the last holder in the same
degree, even though the person selected did not oolong to the.
senior-most line.
But if succession to the Zamindari is govemed by the rule of lineal primogeniture, selection of a member of
a branch in preference to a member of the senior branch would
be plainly illegal.
Again, the evidence does not warrant the view
that the
Governor purported to pass any order in pursuan17 of the pro~
sioM of the Chanda Patent or the rules of succession rewrded m
336
SUPREME COURT REPORTS
. [1971 ]3 s.c.R.
the Wajib-ul-arz.
The order of the Governor is in the form of
a memorandum address~ to the Deputy Commissioner, Chanda,
dated November 9, 1951 and it states that :
'"Government are pleased to recognise Shri Dayaram Bapu son of Ballarshah Bapu Raj Gond as the
Zamindar of Dhanora Zamindari in
the
Carchiroli
tahsil of the Chanda District till the date of vesting of
the Zamindari in the State Government".
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There is no evidence that the Governor made any enquiry to
determine the successor of Amarshah.
An order by the Governor purporting to exercise powers under the Chanda Patent contemplates a quasi-judicial inquiry. The order does not show c
that any inquiry was made for determining the rights of the c,rintesting claimants or that any notice was issued to them or that
they were heard before the Governor decided the issue.
There
is nothing in the pleadings in that behalf.
The Governor is
invested with quasi-judicial power, and if there be a dispute, the
dispute must be decided after holding an inquiry, and the decision must be reached consistantly with the rules of natural justice
D
and in accordance with the custom of the family.
A bald statement that the "Government are pleased to recognise Dayaram
Bapu son cf Ballarsjlah Bapu as the Zamindar of Dhanora
Zamindari" does not di~close the reason for rejecting the claim of
Pratapshah who according to the custom of the family was "the
nearest male relative".
There is no evidence on the record that · E
the Governor was even aware that there were other claim9.!lts and
if he was aware what their claims were and that the Governor had
considered those claims before recognizing the claim of Dayaram.
In the absence of any evidence that the order was made by the
Governor in exercise of the power conferred by the Chanda
Patent it is unnecessary to consider whether any order made by r
the Governor is iin exercise or the powers Of the patent e:itcludes the
jurisdiction of the civil court.
The decision of Governor was
apparently reached without any inquiry and was plainly. co~trary
to the rules of. Hindu Law and the custom of the family m the
light of which alone the Governor was by the express mandate
competent to adjudicate the claim.
G
It is true that there were 'mutation .proceedings in regard· to
the Zamindari before the N aib Tahsildar Garchiroli Tahsil. The
Naib Tahsilda~ by his order dated May 9, 1951 held that the dispute relating to the mutation was raised by Pratapshah, that
Amarshah had died issueless, that the genealogical tree set up by
Daulatshah son of Pratapshah was incorrect being unsupported
H
by reliable evidence, that copies of settlement of 1867 were mere
statements of interested persons, that the genealogical tree filed
by Dayaram resembled the genealogical tree filed by Pratapshah
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DAYARAM v. DAWALATSHAH (Shah, C.J.)
337
and was held to be genuine, that Amarshah had clearly admitted
in his statement that Dayaram was entitled to succeed to the
Zamindari after him and that Dayaram was the nearest male
kinsman to the deceased Amarshah. This decision of the Naib
Tahsildar proceeded upon a genealogy produced by Dayaram
which on the findings of the Trial Court as well as the High Col,\tt
in this case is incorrect.
The decision of . .the Naib Tahsildar
in a mutation proceeding even as a piece of evidence has. little
evidentiary value when it is founded on a material piece of evidence which was untrue.
The proceedings were carried in appeal
before the Deputy Commissioner. The Deputy Commissioner
confirmed the order by his decision dated August 8, 1951. He
also accepted the genealogy set up by Dayaram and held that
there were no other nearer male descendants in the branch and
that Pratapshah was one degr>~e more removed 1than Dayaram. In
view of the infirmity atta'chin~ to the genealogy relied upon by
the Revenue Officer that decision has also little evidentiary v•lue.
The orders passed by the Governor and the revenue authorities do not exclude the jurisdiction of the civil c;ourt to decide the
question of kinship.
In that view we agree with the High Court
that the Zamindari originally confirmed in favour of Sitaram must
according to the tenure as recorded in the Wajib-ul-arz devolve
upon the first plaintiff Dawalatshah to the exclusion of the first
defendant Dayaram.
The right in Malguzari land was since the,death of Amarshah
extinguished by the Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951. The
Malguzarl lands are by the devise contained in the will dated
December 3, 19SO given to the plaintiffs.
Compensation in respect of the lands would therefore belong to the plaintiffs.
But it
1s urged that notwithstanding the devise, because of the order of
the Claim Officer under Section 14 of Act 1 of 19Sl, the plain·
tiffs were not entitled to agitate the question of heirship. It is
enacted by s. 3 of the Act that on and from a date to be specified
by a notification by the State Government in .that behalf, all proprietary rights·in an estate, mahal, alienated viJlage or alienated
land as .the case may be, in the area specified in the notification,
ve,sting m a propr~etor of such es!ate, mahal, alienated village,
a~1enated land, or m a person havmg interest in such proprietary
nght 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. Section 4 sets out of the ccinSequences o~ the. ves!ing of the land in the ~ovemment by virtue
of the nottficatton issued under s. 3.
Section 8 provides for
assessment of compensation payable to every proprietor, who 'is
3-L807SupCI/71
338
SUPREME COURT REPORTS
[1971 J3 S.C.R.
divested of proprietary rights.
The compensation is to be determined in accordance with the rules contained in Sch. I.
Section
12 ·requires that a proprietor who is divested of proprietary rights
by virtue of a notification issued under s. 3 shall,
within such
period as may be prescribed, file a statement of claim in the prescribed form and specify
the
particulars mentioned therein.
Section 13 authorises the Compensation Officer to determine the
amount of compensation.
Section 14 provides :
" ( 1 ) If during the course of an enquiry by the Compensation Officer, any question is raised regarding the proprietary
right
in
any
property
divested under Sec. 3 and such question has not
already been determined by a court of competent jurisdiction. the Compensation Officer shall
proceed to enquire summarily into the merits
of such question and pass such orders
as he
thinks fit."
( 2) The order of the Compensation Officer under
sub-section ( 1) shall not be subject to any
appeal or revision, but any party may, within
two months fo•m the date of such order. institute a suit in the civil court to have the order set
aside, and the decision of such court shall be
binding on the Compensation Officer, but subject to the result of such suit, if any, the Compensation Officer shall be final and conclusive".
Counsel for Dayaram urged that the Compensation Officer had
decided by his Order dated August 30, 1951 that compensation
in respect of the M alguzari land was payable to Dayaram and
since no suit was filed by the plaintiffs for setting aside that decision. the order of the Compensation Officer became final
and
conclusive and could :not be reopened in a suit filed more than
six years after that date.
We are unable to accept that contention.
The Compensation Officer is entitled to decide a question
only regarding the proprietary right in the property divested
under s. 3.
He is not concerned with determination of any question relating to a private dispute between two or more persons
who make competing clailllS in the matter of compensation, relying upon their respective titles.
A question regarding the proprietary rights may in ordinary course be raised only in a claim
against the State, and if that claim be decided against the claimant in a summary inquiry held by the Compensation Officer,
a suit to set aside the decision must be filed within two months
from that date and if no suit is filed, the order becomes final and
conclusive.
S. 14 was enacted with a view to put an end to disputes with regard to the claims to proprietary rights which by
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DAYARAM v. DAWALATSHAH (Shah, C.J.)
339
virtue of the notilication issued under s. 3 are extinguished.
It
is not intended by an Order under section 14 to determine complicated questions of title by the adjudication of a revenue officer
in a summary inquiry without even a right of appeal and to make
his adjudication conclusive unless a suit be filed within two
months from the date of the order.
That is also clear from the
terms of s. 35(7) of Act 1 of 1951 which provides:
"The payment of compensation under this Act to
the creditors of a proprietor or to the proprietor in
accordance with the prescribed manner shall be a full
discharge of the State Government from all liability to
pay compensation for the
divesting
of proprietary
rights, but shall not prejudice any rights in respect of
the said rights to which any other person may be entitled by due process of law to enforce against the person
to whom compensation has been paid as aforesaid".
The Civil Court is declared competent to determine disputed
questions with regard to title to compensation.
We agree ·with
the High Court thats. 14 of Act 1 of 1951 does not invest the
Compensation Officer with jurisdiction to determine competing
claims of persons claiming proprietary rights to the property
vesting in the Government by the operation of s. 3 of the Act.
Section 14 is intended to determine only the proprietary rights in
the land qua the State.
Finally it was urge,d that the Trial Court granted Rs.