SHAH - (1.) DAWALATSHAH and Ranwirshah-sons of Pratapshah-instituted an action in the Court of the Additional District Judge Chanda, for a decree for possession 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 protests and also for recovery of tile amount of compensation in respect of certain lands received by the defendants from the Government of Madhya Pradesh and for an order declaring their right to receive the balance of compensation remaining to be paid. The plaintiffs relied upon the following genealogy: JUDGEMENT_358_1_1971Image1.jpg
(2.) THE plaintiffs claimed that the property in suit originally belonged to Gangashah. Gangashah had five sons: Hiru, Bhakta, Sakru, Kajur and Raju. THE branches of Sakru and Kajur became extinct a long time ago. THE branch of Hiru (who was the eldest among the five sons of Gangashah) became extinct with the death of Amarshah on 9/12/1950. THE plaintiffs-sons of Pratapshah 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 3/12/1950. THEy submitted that the Dhanora Zamindari was granted to Sitaram ancestor of Amarshah as an impartible estate, devolving 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 the 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 3/12/1950 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 27/01/1951 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 Madhya Pradesh dated 9/11/1951, 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 binding 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 and the 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 plaintiffs; and that Amarshah had made a will dated 8/12/1950 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 Pratapshah father of the plaintiffs being the eldest member of the senior-most branch from among the descendants of the common 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 compensation payable in respect thereof: that the will set up by the plaintiffs dated 3/12/1950 was genuine and the plaintiffs were under the will entitled to the estate devised in their favour by Amarshah; that the will dated 8/12/1950, 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 plaintiffs represented the true relationship between the descendants of Gangashah.
(3.) IN appeal by the defendants, the High Court of Bombay confirmed the decree of the Trial Court with a slight modification. The High Court held that the genealogical table set up by the plaintiffs was correct, that according to the custom governing succession Dhanora Zamindari devolved upon Pratapshah on the death of Amarshah, and on the death of Pratapshah the first plaintiff became entitled to the Zamindari, that the order of the Governor recognising Dayaram as Zamindar was not binding and conclusive, for it was not shown that in making the order the Governor had acted in exercise of the power conferred by the Chanda Patent; that the order was contrary to the customs and the law governing the Zamindari: that the decision of the Governor did not oust the jurisdiction of the Civil Court that the will dated 8/12/1950 set up by the defendants was not genuine and the will set up by the plaintiffs dated 3/12/1950 was genuine; and that the plaintiffs suit with regard to Malguzari lands was not barred by the decision of the Compensation Officer. The High Court accordingly confirmed the decree passed by the Trial Court in respect of the Zamindari relying upon the rule of inheritance incorporated in the Wazib-ul-arz of the Chanda District and by succession under the will dated 3/12/1950 in respect of the other property except as to certain occupancy lands held by Amarshah. With certificate granted by the High Court the defendants have appealed to this Court.;