BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner challenges the order passed by the Board of Revenue Ajmer, dt. 26.12.1996 (Annexure-6) in Appeal No. 69/96/Ceiling/Nagaur affirming the order passed by the Additional Collector, Nagaur dt. 18.3.96 (Annexure-5). The review against the order of Board of Revenue was also dismissed on 1.10.97 at the stage of admission which is also under challenge. In the case of petitioner initially Ceiling Authority under Chapter III-B of the Rajasthan Tenancy Act found that the petitioner does not hold land in surplus of the ceiling area and dropped the proceedings. However, the proceedings u/s. 15(2) of Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 were initiated for the purpose of determining ceiling area in the case of petitioner under Chapter III-B of the Rajasthan Tenancy Act by order dt. 20.10.1982. Apart from other grounds it was claimed by the petitioner that father of petitioner had died in 1945 during the life time of his grand-father. At the time of death of his grand-father Jait Singh, his mother and widow of pre-deceased son of Jait Singh was alive and she was entitled to a share in the property held by Jait Singh. Ofcourse the petitioner alleged that the property in question was ancestral. However, Additional Collector rejected this claim by holding that since Smt. Rasal Kanwar had been given 43.10 bighas of land for her maintenance, she is not entitled to any further share in the property, notwithstanding on the death of Jait Singh, she has also an equal share. Thus by not taking into account the land which would pass to Smt. Rasal Kanwar in succession on death of Jait Singh in 1957, the entire land was held to be of the petitioner on succession and on that basis 33.4 bighas of land was held to be in excess of the ceiling limit in the hands of the petitioner. The claim of Sajjan Singh and Ratan Singh to be members of the family as on the relevant date 1.4.66. The Board of Revenue relying on its earlier decision and also a decision of High Court particulars of which have not been disclosed, holding that Jagir land cannot be treated as ancestral land held that in these circumstances provisions of Hindu Succession Act would not apply and accordingly Smt. Rasal Kanwar, who had been given 43 bighas of land by Jait Singh cannot claim any further rights. The review has been rejected inter alia on the ground that no new grounds have been raised.
(3.) THE perusal of three orders disclose an apparent ignorance of the law on succession by Ceiling Authorities. THE succession opens on the death of an incumbent and takes place immediately on the death of the holder of the property. THE interest of the deceased in the property devolves immediately in accordance with personal law of succession. THE holdings of land in any capacity by the deceased Jait Singh will not make any difference on the right of legal heirs to succeed the property as heir of deceased on intestate succession cannot be denied on the ground that he had been given any property by way of maintenance. Right of maintenance is independent of right to succeed. Smt. Rasal Kanwar widow of Khangar Singh was one of the Class I female heir on the death of Jait Singh as widow of predeceased son of Jait Singh. It is also not in dispute that Jait Singh had died in 1957 after commencement of Hindu Succession Act, 1956. THE Hindu Succession Act recognises widow of predeceased son amongst Class I heir of any male Hindu dying intestate. It is true before commencement of Hindu Succession Act, a female was not an heir to a male Hindu in the presence of a male heir. In some circumstances she could acquire a limited estate in the property with the right of reversioners to ultimately succeed to such property on the death of such limited owner. Hindu Succession Act made a deviation. By enacting Sec. 14 it enlarged the existing limited interests of the females to full ownership, except where such limited interest was created under an agreement or by a testamentary instrument. So also it deviated from the Shastric Hindu Law in recognising females as heirs of deceased having equal share with males, including right to succeed to the undivided share of deceased male Hindu in the co-parcenery to a class of female heirs. It has been envisaged under Section 6 of the Hindu Succession Act that when a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshara co-parcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenery and not in accordance with the Act, provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara co-parcenery property shall devolve by testamontary or interstate succession, as the case may be, under this Act and not by survivorship. In clause 1 of Schedule the name of widow of pre-deceased son appears. Thus in the presence of Rasal Devi on the death of Jait Singh intestate, his interest in the co-parcenery property shall not be governed by principles of Mitakshara. But under Sec. 6 if the property is held to be ancestral Smt. Rasal Devi will be entitled to succeed in her own right as one of the heirs to the undivided interest of Jait Singh, which he is deemed to hold at the time of his death in co-parcenary property and such share shall be determined as notionally falling to his share had partition taken place immediately before his death. This right to succeed on death of Jait Singh cannot be affected because during lifetime of Jait Singh she was given contain land in lieu of her right to maintenance against the property of co-parcenery. ;