Decided on March 30,1960

KAMPOORI Respondents


- (1.)THIS is an appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as 'the Act') against an order of the Additional Com-missioner Jagir dated 30. 4. 59, whereby respondent No. 1 was held to be a co-sharer to the extent of one-third in the jagir grant of the appellants.
(2.)WE have heard the learned counsel for the parties and have examined the record as well. Shri P. D. Kudal, appearing for the State Government, stated before us that he was not interested in the result of the appeal being one way or the other. Hence the term 'respondent' in this judgment would refer to the contesting respondent Mst. Kampoori.
The village of Raghuvanshi was granted to Dewan Baldeo Singh by the former ruler. ; of the Karauli State as 'bapoti' Muafi. The Muafa was resumed on 1. 1. 55 under the Act. When resumption took place Dewan Mangilal, the Tikayat and several other co-sharers and family members including Mst. Kampuri, the respondent, were living. Dewan Mangilal after resumption filed a statement of claim under sec. 31 of the Act. In this claim he did not include the name of the respondent in the list of co-sharers. The respondent on her own behalf filed an application claiming to be a co-sharer and not a maintenance (older. The dispute was heard and decided by the learned Addl. Jagir Commissioner. The learned Addl. Jagir Commissioner received evidence produced by the parties and held by his order dated 30. 4. 59 that the respondent was a co-sharer and entitled to receive compensation in that capacity under sec. 29 of the Act.

Shri J. P. Jain arguing on behalf of the appellant has laid stress on two points, namely (1) Smt. Kampoori Bai being a widow has been treated as a maintenance holder in the family according to the family usage and (2) even if there was any right of a co-sharer subsisting in her in accordance with any law or custom, she has lost the same by operation of sec. 28 of the Limitation Act. As Shri Jain's second point is purely one of law we shall examine it first. Sec. 28 of the Limitation Act reads as follows: - "28. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Mr. Jain's argument is that in order to establish her title to a share in the property, the respondent should have instituted a suit for possession of the property when the title or the interest of a co-sharer devolved on her, i. e. on the demise of her minor son Jawahar Singh in 1932. Since she has failed to do so within the prescribed period of limitation, she has lost this right. We have given our earnest consideration to this point, but we find the argument has no force in it. The reason is simple. The property here is a State grant held in Bapoti tenure which has and is admittedly been declared as impartible and is sanctioned in the name of the Tikayat who holds it on behalf of all other co-sharers. No co-sharer is entitled to sue for division or possession under the clear orders of Ijlas-i-Khas Alija, 1927, dated 2. 4. 1927. This order was passed on an application of the appellant himself who in 1927 was anxious to get the property partitioned between the four co-sharers who were fixed in equal shares in an earlier attempt to divide the property in 1916. But it was clearly ordered on both these occasions that the land will not be partitioned and only its income. Therefore the utmost which the respondent could do was to file a suit for the payment of her full amount of the income of her share and could not institute a suit for possession. Since the very nature of tenure of the grant prohi-bited a suit for possession the respondent's failure to institute such a suit cannot result in the penalty of sec. 28 of the Limitation Act, i. e. no right of her's has been extinguished, and accordingly we hold that if in accordance with any existing law, custom or usage having the force of law the respondent possessed or acquired the status of a co-sharer, it still subsists in her.

The general principle is that limitation bars only the remedy and does not extinguish the right itself. Sec. 28 is, however, an exception to this general principle, As the wordings of the section show, it is applicable to a suit for possession of immovable property. It can hardly have any relevancy to the proceedings which have commenced under the provisions of the Act. The question as to whether any person is or is not a co-sharer in a jagir is one relating to title, right or interest in jagir land and as such is covered by sec. 37 of the Act. If such a question has not already been decided by a competent authority, it has to be decided by the Jagir Commissioner. Sec. 29 of the Act lays down that any co-sharer of the Jagirdar who under any existing Jagir law, is entitled to receive any share out of the income of any jagir land, shall be paid such amounts every year from the annual instalment of compensation and rehabilitation grant payable under this Act as bears to the total compensation and rehabilitation grant the same proportion which his share of the income bears to the total income of the jagir land. The actual payment of compensation is laid down in sec. 35 of the Act. Matters required to be settled, decided or dealt with by any officer or authority under the Act, have been placed out of the jurisdiction of Civil or Revenue Court. The learned advocate for the appellants has based his contention on the assumption that the proceedings for a share in compensation and rehabilitation grant partake in essence the nature and character of a suit for possession of property. It is on this assumption that sec. 28 of the Indian Limitation Act is pleaded. As pointed out above; there is no basis whatsoever for this assumption. These proceedings are under the provisions of the Act and must be heard and determined in accordance with the provisions contained therein. It is a piece of a special enactment and should not be confused with suits for recovery of possession or mesne profits. There is thus no force in this contention.

We now proceed to examine the other issue in the case namely, whether Mst. Kampoori is a co-sharer in the jagir and is entitled to a share in the compensation and rehabilitation grant or whether she is entitled to a maintenance allowance only. The learned lower court has examined the point exhaustively in its carefully written judgment. The evidence documentary and oral has been fully referred to in that judgment. It is an admitted fact that no rules or regulations touching the specific points at issue were in existence in the former Karauli State. But as sec. 2 (d) of the Act places any custom or usage relating to jagirdars at par with rules, resolutions etc. , it has to be ascertained as to what was the custom or usage in the former Karauli State on the point. The first decision with regard to this jagir given by the Ijlas Council of the former Karauli State on 11. 9. 1960 leaves no room to doubt that a widow was entitled to a share in the jagir grant and she was entitled to receive her share of the income for her maintenance. The incomes of each co-sharer were clearly defined and fixed. There was another decision of the State Council on 2. 4. 1927 and the right of a widow to be a co-sharer was also recognised therein. Another order of the Karauli State Council dated 9. 1. 1926 has been produced in the case which also shows that a widow was entitled to a share in the State Grant. On 29. 1. 46 Dewan Mangilal appellant while working as Revenue Member of former Karauli State gave a decision in an appeal filed by Raghubir Singh against Hira Singh and it is also stated therein that a widow of the jagirdar was entitled to a share as long as she was alive and during her lifetime no co-sharer could trespass upon her rights. These instances have not been denied by the appellants, who have not been able to cite other instances as may be establishing a contrary custom or usage.

Taking us through the Ijlas Alija Council O. 1916, Mr. Jain has invited our attention to the fact that when the partition took place a lady, i. e. widow of Shri Hiralal was living and that she was only given maintenance allowance of Rs. 12/- per month which was later to be increased to Rs. 115/- per month. He also mentioned one or two instances of ladies receiving maintenance allowance only but admitted there was no document or record in respect of these instances. The only recorded instance is that of the widow of Hiralal. We have perused this document carefully and we find that this document also does not support the claim put up by Mr. Jain. The document specifically mentions that the maintenance allowance fixed for the widow was in lieu of her share of the income of the jagir and this allowance having been fixed, in future she will have no right to any share in the income. To our mind the document fully recognised the widow's right to a share - though its satisfaction was arrived at in a different way, i. e. by means of fixing a maintenance for her and the lady accepted the arrangement.

On behalf of the respondent a mutation decision of another Muafi Khata of the same family has been filed which is Ex. D/1. In this mutation the respondent has been granted a specific share in her own name as well as the appellant. Therefore it cannot be said that in this family the practice was to allow the widows only a maintenance and not a share. On the contrary, it establishes that the State did recognise or at any rate did not place any bar on a widow succeeding to a share or interest of the co-sharer.

Something may be stated about the accounts maintained by the appellants recording payments made to Mst. Kampoori. In this connection it has to be remembered that Dewan Magilal was by Common consent of all the co-sharers the Manager of the grant and was in that capacity maintaining the accounts of the income and expenditure. Mst. Kampoori being a widow of the family could not be expected to insist that the accounts should be maintained in a manner as to reflect the correct rights and interests of the co-sharers. In fact she could hardly be expected to have any proper appreciation of the correct position. Her only concern appears to have a source of income and this was not denied to her. However, one thing is clear from the accounts. Throughout the various shares of the co-sharers have been shown in them. In Ex. 9 which is the account for Smt. 1989, the opening word is "guzara Hissedaran ko". It would clearly mean that the co-sharers were recognised and some of them were given various shares of the income for their maintenance. A maintenance allowance given under these circumstances is definitely distinct from a mere maintenance allowance which has no relation to a share in the income of the grant. In this year the mother, and the widow of Tikam Singh were paid for their maintenance at a particular rate and besides this some amount was also given to the creditors for liquidation of the debts outstanding against the deceased Tikam Singh. In the case of a pure maintenance holder such an arrangement would have been inconceivable; for there could have been no liability of the person paying the allowance for clearing the debts outstanding against|the maintained person. This procedure was adopted in Smt. year 1990 (Ex. 10) and 1994 Ex. (Ex. 11 ). Thus on a perusal of these accounts it would appear that it cannot be definitely stated that throughout Mst. Kampoori was treated as a maintenance holder. On the contrary, she is recognised as a co-sharer and has been given maintenance allowance in that capacity, besides her debts being cleared off out of this income.

(3.)TO conclude, therefore, we hold that the documentary evidence led by the parties leads to the irresistible conclusion that Mst. Kapoori had throughout been recognised as a co-sharer of one-third in the State grant and that she is accordingly entitled to a proportionate share in the compensation and rehabilitation grant payable under the Act. The decision of the learned Additional Jagir Commissioner is, therefore, perfectly correct and calls for no interference. We accordingly hereby reject the appeal. .

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