MODI, J. - (1.) THIS is a judgment-debtor's appeal in an execution muter and raises an interesting question as to whether the Jagir to which he succeeded on the death of his father was in the nature of personal property, and, therefore, the compensation payable to him in lieu of the resumption of this Jagir was not attachable in execution of a decree passed against him as the son and legal representative of his deceased father.
(2.) THE facts leading up to this appeal lie within a short compass. THE respondent filed a suit for recovery of money against Devisingh, Jagirdar of Narnawas, a scheduled Jagir in the Jalore District. Devisingh died during the pendency of this suit sometime in 1953-Consequently, his son Ambasingh, the present judgment-debtor was impleaded as his legal representative, and eventually a decree for R. 3. 40,356/- including principal and interest was passed against him on the 19th September, 1957, by the trial court, and a direction was given that this decree would be executable against the estate of the deceased Devisingh. An appeal against this decree has been filed by Ambasingh in this Court which is pending but with that we are not concerned. THE decree-holders respondents in the meantime applied for execution of this decree on the 17th December, 1957, and among other property, they prayed for attachment of certain bonds, which, it was alleged, were shortly going to be paid to the appellant in lieu of compensation for his Jagir which had been resumed during the interval. THE executing court thereupon issued an attachment under O. 21, rule 52 of the Code of Civil Procedure. To this, the judgment-debtor appellant filed an objection. His submission was, put briefly, that on the death of his father Devisingh, the jagir of Narnawas which was held by his father had been received by him as a fresh grant in Svt. 2009 (corresponding to some time in 1953) and consequently, the income realised by him from this Jagir as well as the compensation in lieu of the resumption of this Jagir which had been received by him or which was still to be received by him was and would be his own personal property, and it could not be said to be something which he had received as the property of his deceased father Devi Singh or as his son and successor. Reliance was placed in support of this submission on the Marwar Land Revenue Act, 1949 (Act No. XL of 1949) (hereinafter referred to as the Act of 1949) as this Jagir was situate in the former State of Marwar; and this law was still in force at the time the Jagir in question devolved on the appellant. According to the appellant, therefore, the Jagir of Narnawas was his personal property and the decree in question which was executable only against the estate of his father Devisingh could not be executed against the income of the Jagir or anything payable to him in lieu thereof. THE respondents, on the other hand, contended that the devolution of the Jagir on the appellant was not a fresh grant to him and that he had inherited the same as the son and successor of his deceased father Devisingh, and, consequently, any compensation payable to the appellant in lieu of this Jagir could not be his personal property any more than the Jagir itself, and it was, therefore, contended that the respondents' decree was perfectly executable against the bonds which were payable to the appellant in lieu of compensation for the resumption of his Jagir. THE learned Senior Civil Judge, Jalore, who was the executing court, repelled the appellant's objection and held that the appellant had succeeded to the Jagir of Narnawas as the son and successor of his father Devisingh, and that the Jagir was not his personal property, and, therefore, the decree-holders were entitled to realise the amount of their decree from the amount of compensation which was payable to the appellant for this Jagir. Aggrieved by this judgment, the judgment-debtor appellant has come up to this Court in appeal. The important question, which, therefore, arises for determination in this appeal is whether the Jagir of Narnawas held by the appellant was a fresh grant to him, and, therefore, his personal property, or it was the estate of his deceased father to which he succeeded as his son and successor and consequently it is capable of being reached in execution of any decree against the estate of the latter. Now it is admitted that Devisingh, the father of the appellant, was before the latter the last-holder of the jagir of Narnawas. There can also be no dispute that both according to ancient custom, and,j according to law relating to jagirs as enshrined in the Act of 1949. this was and in any case must be deemed to be a grant from his His Highness the Maharaja of Jodhpur who was the Sovereign Ruler of the State of Marwar. That being so, learned counsel for the appellant developed his argument in the following manner. Relying on sec. 170 of the said Act, his submission was that all grants of jagirs were held under His Highness' pleasure. We then referred to sec. 183 which provides that all grants of Scheduled Jagirs were only for the life-time of the holder, and that no person was entitled to succeed to such jagir until his succession was recognised and the grant was renewed in his favour by His Highness. He further submitted that under sec. 185, a Scheduled Jagir on the death of the last holder was resumable by the Government and to be taken under direct management, though this rule was relaxed where the next claimant or successor was the direct lineal descendent in the male line of the last holder. It was further submitted that no person could succeed to a jagir, even if he was the person entitled to it according to the law of primogeniture which applied to all Scheduled jagirs under sec. 182 of the Act of 1949, until his succession was recognised by His Highness, and a renewal of the grant ordered. In these circumstances, it was strenuously urged before us that when the appellant was recognised as the jagirdar of Narnawas, the jagir which is in question in this case, it was virtually a fresh grant to him, and the said jagir was, therefore, his personal estate and not the estate of his deceased father which as such had come to an end as soon as the latter had died. And if this was the correct position, it was further argued that the decree-holders respondents can have no right to proceed against any income of the jagir in the hands of the appellant that had accrued subsequent to his father's death or against the compensation payable in lieu of the resumption of the jagir, which would be equally his own estate and not that of his father. At the first blush, the above argument has an air of plausibility about it; but on a close and careful analysis of the entire position, we have come to the conclusion that it does not merit acceptance. Before we analyse the position under the Act of 1949, in so far as it bears on the question before -us, we should like to state generally that jagirs in this part of the country under the old feudal system, were held, speaking by and large, on a peculiar tenure. On the one hand, the jargirs descended or were usually allowed to descend from the father to the eldest son by the rule of primogeniture, or, in the absence of such son, to an adopted son, or failing any such son to the nearest collateral within the line of the original grantee of the jagir, and the jagirdar enjoyed the usufruct of the jagir practically without let or hindrance subject to payment of certain, tribute to the State. On the other hand, the Ruler of the State in which these jagirs were situated and who was sovereign in all internal matters in his State always maintained that the jagirs were grants from him or his forefathers, as usually they were, and that such jagirs could be resumed by the sovereign, if such was his pleasure, which, in actual, point of fact, was merely exercised except on grave occasions where the jagirdar was guilty of disloyalty to the State or the similar other misconduct. We may also point out that as the jagirs were deemed to be granted from the sovereign, and they were always held to be resumable by the State in the event of there being no rightful successor, the sovereign always insisted that at the death of each holder the estate do revert to the State, and thereafter an inquiry was to be held as to the rightful successor, and then and then only the jagir was allowed to devolve on such successor after the sovereign had recognised his succession to the jagir and usually a fee which was in the nature of succession-fee was charged on such occasions. It is also pertinent to point out that under this system, land was, broadly speaking, not alienable, and the jagirdar was allowed to assign only a part of his jagir to his lineal male descedants, or, to those of the last holder, who did not succeed to the jagir, only in so far as it was reasonably necessary for the purposes of their maintenance. Again, the power of the jagirdar to grant leases or to mortgage the rents and profits of the estate was recognised within very narrow limits. From what we have stated above, what we wish to emphasize is that while the jagirs were allowed usually to be inherited from father to son or the next of kin provided he was in the line of the original grantee, and the sovereign usually did not interfere in this mode of succession until no rightful successor within the line of the original grantee to inherit the jagir was alive; as a matter of strict theory, the sovereign always insisted that the jagirs were held under his pleasure and that they were for the life-time of the holder and that no person could be held to be entitled to succeed to the jagir until his succession was recognised by him. It is this two-fold strain which runs throughout the texture of the jagir tenure under the feudal system in force in most of the princely States as they existed in our country, which is apt to cause not a little difficulty and perhaps some confusion in a proper decision of the question that we have before us. This brings us to a consideration of the provisions of the Act of 1949 which, to our mind, embody the principles that we have endeavoured to place in their proper perspective above. Chapter X of this Act deals with the creation, devolution and transfer of proprietary interests in land. The opening section under this chapter, namely, sec. 169 lays down that the ownership of all land vested in His Highness, and that all jagirs (the term being used in its most extensive sense) are and shall be deemed to be grants from the Ruler. Then sec. 170 lay down that all grants shall be held by the original grantee or his successor during the pleasure of the Ruler. The phrase "original grantee" has been defined in cl. (vii) of sec. 4 as the person to whom an estate or land was granted otherwise than as successor to the previous holder. We pause here to point out that the word "grant" as used in this context involves a two-fold connotation, namely, (1) a grant to a successor to a previous holder and (2) to a person otherwise than such successor. In other words, a grant where it is to the successor to a previous holder would not really be a fresh grant, although the section further lays down that all such grants shall be during His Highness' pleasure. We pass over a few sections for the moment and come straight to sec. 183. This section reads as under.- "all grants of Scheduled jagir are only for the life-time of the holder and no person is entitled to succeed to such jagir until his succes sion is recognised and the grant is renewed in his favour by His Highness. " Learned counsel for the appellant places his principal reliance on this section to ask us to hold that the jagir held by the appellant on the death of his father being a scheduled jagir is a fresh grant, in as much as according to this section, the grant held by his father before him was only for his life-time and further because no person could be held entitled to succeed to such a jagir until his succession was recognised and the grant renewed in his favour by the Ruler. This section must, however, be read in the context of the other sections and not in isolation from them, and from this stage we go back to sec. 172. Sec. 172 reads as follows: "subject to the provisions of this Act, and of any other law for the time being in force, suecession to all estates or proprietary or subproprietary interests in land, hereinafter in this Chapter called grants, shall be in accordance with the personal law to which the deceased land-lord or sub-proprietor was subject. " It is clear from this section that the mode of devolution of jagir from the last holder to the next one is by succession and that this right of succession will be governed by the personal law to which the deceased landlord was subject. It is true that this right of succession, according to the personal law, has been made subject to the provisions of the Act and of any other law for the time being in force. Thus under the Hindu law, as it was applicable at the relevant time all lineal descendants in the male line of the last holder would be equally entitled to hold the jagir. But sect. 182 lays down that succession shall be governed in the case of Scheduled Jagirs by the rule of primogeniture, and, therefore, only the eldest son would succeed to such a jagir to the exclusion of the other son or sons who would be only entitled to a grant for purposes of maintenance from the holder of the jagir. Then sec. 173 provides for the escheat of heirless grants to the Ruler, and this section comes into operation, in so far as it is relevant for our present purposes, only in the absence of a person "entitled to succeed", or where no claim to succession is made within one year of the death of the last holder. Then we come to sec. 175 which enacts that a grant may be resumed by the Ruler at any time if it is held by a person who was not entitled so succeed to the grant as an heir, and there is a proviso to this section which says that no succession shall be called in question under this section more than sixty years after its recognition, except on the ground of fraud. The next important section is sec. 176 and, among other provisions, it lays down that no person who is not a natural lineal descendant in the male line of the original grantee shall be entitled to succeed to a grant as heir whether by adoption or otherwise. Sec. 177 then provides for succession by adoption, and, inter alia lays down that among persons equally related to the person making the adoption, the latter may adopt any of them at his discretion. Sec. 178 deals with the power of a widow to adopt a son to her husband where he has died without having adopted any one entitled to succeed to the grant. Then omitting the other Sections, to some of which we have already drawn attention above and others which are not relevant for our present purposes, we come to sec. 184 which runs as follows: - "subject always to His Highness' pleasure, the grant of a Scheduled Jagir, on the death of the holder, shall be renewed in favour of the entitled to succeed him in accordance with the provisions of this Act. " This section talks, subject of course to His Highness' pleasure, of the renewal of the jagir in favour of the person entitled to succeed the last holder in accordance with the provisions of this Act. This, in our opinion, does not amount to fresh grant where such renewal is made. "we should like to make it clear at this juncture that once the jagir is so renewed, the grant will date back from! the death of the last holder, and the next following jagirdar conies in by succession according to the law subject to the provision of this Act or of any other law in force as provided under Sec. 172. Learned counsel for the appellant, however, submitted that all this was subject to His Highness' pleasure, and that His Highness might not renew the grant in favour of the person entitled to succeed the last holder in accordance with the personal law read with the provisions of this Act. It seems to us that such a case would be extremely rare where there is a person entitled to succeed to the last holder according to law and still His Highness may not renew the grant. But fully granting that such a possibility cannot be ruled out as a matter of strict law, we fail to see that where His Highness does renew the grant, he does so irrespective of the consideration whether the next claimant is entitled to succeed the last holder or not, and we think that the succession was recognised in such cases for no other reason than that there was a person entitled to succeed to the last holder in accordance with law. Now, when such succession is recognised, the principle to which we have referred above, namely, that the renewal dates back to the point of time when the last holder died, will still fully come into force, and what in this manner will come into the hands of the succeeding jagirdar would be estate of his ancestor who was the last holder. In other words, it would be erroneous, in our opinion, to predicate of such a renewal that it is a fresh grant, or, what we might call, a grant to an original grantee within the meaning of clause (vii) of sec. 4 to which we have already referred above. We may further add in this connection that, assuming that the renewal of the jagir in favour of the person entitled to succeed to the last holder is a matter in the absolute pleasure of His Highness and such renewal is not; made in favour of the person entitled to succeed, then it is clear that the jagir will not devolve by succession on to the next heir at all, and the Ruler may choose not to grant it to anyone or to grant it to some one else. In such cases, no devolution of liability with respect to the deceased's estate can possibly arise on his next of kin in so far as the jagir is concerned. The point we wish to emphasize is that where renewal was allowed by the Ruler in favour of the person entitled to succeed to the last holder in accordance with law, then the correct position is and must be that such renewal has the effect of continuing the estate of the deceased holder into the hands of his son or successor, and such estate must be held to be not personal to him but as having devolved on him from his ancestor. We are reinforced in the view which we have taken above by sub-section (3) of sec. 185 which lays down that where the grant of a jagir is resumed and taken under direct management on the death of the last holder, and then it is renewed in favour of his successor, the income realised by the Government from such jagir shall be paid to him after deduction of the expenses of management and of any fees and dues in respect of succession of mutation. We have no doubt that if what really happens on such resumption is a fresh grant, then such grant should take effect from the order by which succession is recognised, and in such a case there should be no occasion for paying the income realised by the Government from such jagir during the period the jagir has remained under the direct management of the State back to the successor. There is yet another aspect of the matter which leads us to the same conclusion, and it is this. Under sec. 191 of the Act of 1949, jagirs are not transferable except to the extent provided in the Act. Then secs. 192 and 193 provide that a jagirdar can grant lease of his estate or may mortgage the rents and profits thereof provided the period of such lease or mortgage does not exceed 24 years. Sec. 194 then provides that when such a lease or mortgage has remained in force for 24 years, it must operate as a full discharge of the debt for which the lease or mortgage was made, which in other words, necessarily means that on the expiry of such period the mortgaged or leased estate must go back from where it came, the encumbrance having discharged itself. Now,it may very well happen that after a few years, say five or ten, of the lease or the mortgage having been made, the jagirdar, who made it, dies. The question at once arises on the view that the jagir reverts back to the State on the death of the alienor, and the renewal of the jagir in favour of his son and successor operates as a fresh grant by the Ruler to him in the eye of law, what is going to happen to such a lease or mortgage? If what the succeeding jagirdar truly gets is a fresh grant from the Ruler, then we have no doubt that the lease or the mortgage must come to an end, and the successor jgirdar would not be liable for allowing the lessee or the mortgagee to remain in enjoyment of the jagir or its income and profits after the death of the last holder irrespective of the consideration that such usufruct has not been enjoyed for the full period of 24 years. If that was the true character of the interest received by the jagirdar from His Highness after the death of his ancestor who was the last holder of the jagir ; we have no doubt that the provisions of secs. 192 to 194 would have been cast in a different mould. As these provisions stand, however, it seems implicit to us that, under the contemplation of the Legislature the continuity of the estate remains in tact from father to son or the next of kin, once the succession of the succeeding jagirdar to the estate of his ancestor who was the last holder or is recognised by the Ruler, and such an estate must be held in its essential character to bear the character of the estate of the deceased and not the personal estate of the succeeding jagirdar.
(3.) IN this connection, we may refer to a bench decision of this Court in Thakur Akhey Singh Vs. Mahaveer Chand (1 ). The facts of this case were that D. , a Jagirdar in the former State of Jodhpur, leased two of his jagir villages to the plaintiff for a period of 24 years. The plaintiff came in possession of the villages in July, 1941. D's jagir was, however, taken under the Court of Wards in February, 1942, and so the plaintiff was dispossessed from these villages. This jagir was, however, released from the Court of wards, and the jagirdar got back into possession. Thereafter the plaintiff filed a suit for possession of the leased villages against the son and successor of the lessor jagirdar, D. IN these circumstances, one of the pleas raised by the defendant was that his father D was not competent to make the lease which would enure beyond his life-time. Reliance was placed on behalf of the defendant on sec, 183 of the Act of 1944 according to which all grants of Scheduled Jagirs are for the life-time of the holder. This plea was repelled, and it was pointed out that if the intention was that a lease,-whatever may be its term, would come to an end when the lessor dies, it should have been very easy for the Legislature to provide for it by adding a proviso to sec. 192. Reference was made to what are called the Bhoglawa Rules of 1914 vide the Marwar Gazette dated the 17th October, 1914, at page 17. According to rule 8 of these Rules, as they were originally framed, no jagirdar was permitted to mortgage his land for more than 20 years and it would be a condition of the mortgage that, after the period of 20 years was over the land would revert to the mortgagor or his heir free from all encumbrance. By a sub-sequent amendment of rule 8 which appears in the Marwar Gazette dated the 2nd October, 1915, at page 14 thereof, the period of 20 years was raised to 24 and it was provided that after the period of 24 years was over, the land would revert to the mortgagor or to his heirs, and the encumbrance would be wiped out. IN the premises it was held that the jagirdar would be within his bounds in making the mortgage for a period of 24 years as the maximum, and that if he died within this period, the mortgage would remain valid after his death for the stipulated period, and his heirs would then get back the property, and it was further held, therefore, that the lease did not come to an end at the death of jagirdar D. We respectfully agree with this view and may add that a lease or a mortgage by a jagirdar with respect to his jagir or any part thereof for a period of 24 years could be enforced against his son for the said period only if the estate which he receives from his father in his hand is not a fresh grant from the Rule but which has devolved on him from his deceased father by succession. The true principle which is thus deducible from a critical analysis of the totality of the provisions contained in Chapter X of the Act of 1949 is that while fully accepting that all grants of jagirs were held by the original grantee or his successors during the pleasure of the Ruler in the former State of Jodhpur, and that the grant of Scheduled Jagirs was only for the life-time of the holder, and that no person was entitled to succeed to such jagirs until his succession was recognised and the grant was renewed in his favour by the Ruler, the moment the grant of such jagir on the death of the last holder was renewed in favour of the person entitled to succeed to the last holder in accordance with law, then such renewal must relate back to the point of time when the last holder died, and the jagir which so devolved on the succeeding holder was not a personal or a fresh grant to him by the Ruler but was a grant in respect of the estate of the deceased to which he was entitled according to the personal law readwith the provisions of this Act. We hold accordingly. This being the correct state of law, as we think it is, it must follow that the compensation payable to the appellant in this case in respect of the jagir in question must bear the same character as the jagir itself if it were still in the hands of the appellant. The result is that the decree holders respondents are justified in executing their decree against the compensation money payable to the appellant in lieu of the resumption of his jagir which money the appellant is entitled to get as being the successor of the estate of his deceased father. It was next argued by learned counsel for the appellant that even if this Court came to the afore-mentioned conclusion, the rehabilitation grant allowed to the appelant could not be attached in any case. The phrase "rehabilitation grant,' has not been defined in the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (Act No. IV of I952 ). Sec. 38 A of this Act provides that there shall be paid to every Jagirdar to whom compensation is payable under this Act a rehabilitation grant on the scale specified in the Third Schedule, and then there is a proviso with which we are not concerned. Sub-sec. (2) provides that the rehabilitation grant payable shall be due as from the date of resumption. Sec. 38b then lays down that every jagirdar whose jagir land has been resumed shall, within two months of the date of the notification under sec. 21, apply in writing in the prescribed form to the Jagir Commissioner for determination and payment of the rehabilitation grant. By sub-sec (2) of this section, the Jagir Commissioner is required to determine the quantum of this grant after making such inquiry as he deems fit. By sec. 38c, it is provided that where compensation payable to a Jagirdar under Chapter VI is not sufficient for the payment of any amount under clause (e) of sub-sec. (1) of sec. 22, that is, for arrears of revenue due in respect of any jagir land from the jagirdar for any period prior to the date of resumption including any sum due and all loans advanced by the Government and other things mentioned in that clause, and for the other payments referred to in sec. 32 such as the amount of actual maintenance allowance payable to persons entitled to such allowance under sec. 27, then the same may be deducted from the rehabilitation grant payable to the jagirdar. Then sec. 38e provides for the payment of additional rehabilitation grant to jagirdars whose gross income from jagir lands calculated in accordance with the provisions of the Second Schedule does not exceed five thousand rupees. We may next refer in this connection to the provisions of the Rajasthan Jagirdars' Debt Reduction Act, 1956 (Act No. 9 of 1957 ). This Act provides for the scaling down of debts of jagirdars whose jagir lands have been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. Such debts may be secured or unsecured. Sec. 3 provides for the reduction of secured debts at the time of the passing of a decree where a suit on the basis of such a debt is pending. Sec. 4 gives similar power to the executing court to reduce a secured debt where a decree has already been passed before this Act came into force. Sec. 6 provides that where the amount has been reduced in accordance with the provisions of sec. 4, the decree to the extent of the reduction so effected shall be deemed for all purposes to have been duly satisfied. Then follow secs. 7 and 8. These sections clearly indicate that decrees against a jagirdar whose jagir has been resumed can be executed both against the compensation money as well as the rehabilitation grant according to certain formula prescribed therein. Sec. 8 appears to be applicable in this case. It provides that where a decree to which this Act applies relating to other than a secured debt is sought to be executed by attachment and sale of the bonds granted to the judgment-debtor on account of compensation or rehabilitation grant for his jagir lands, the court executing the decree shall, notwithstanding anything in any law, enter satisfaction in accordance with the formula given in Schedule III. Sechedule III provides that for every one rupee of the face value of the bond sold, satisfaction shall be entered for an amount which shall be 5/3 times thereof. Having regard to these provisions, it seems to us that the bonds granted to a jagirdar both on account of compensation or rehabilitation grant for his resumed jagir must stand on the same footing, and execution can be levied against both and when it is so levied, the court has been placed under a duty to enter satisfaction in accordance with the formula given in Schedule III as already stated above. In these circumstances, we find it difficult to hold that the appellant is entitled to any special consideration so far as the decree against him is sought to be satisfied by attachment of bonds for the rehabilitation grant. If the Legislature had intended that bonds for rehabilitation grant as contradistinguished from those for compensation, as such, were immune from attachment and sale in execution of decrees against expropriated jagirdars then, for one thing, we should have expected an explicit provision to that effect. Again, in any case, if that was so. the legislature need hardly have provided for the satisfaction of the debts due against a jagirdar by sale of the bonds available to him as a rehabilitation grant, apart from the bonds for compensation money payable to him, for which a clear provision appears to us to have been made under S. 8 of this Act read with Schedule III thereof. These considerations, in our opinion, more than outweigh the general argument relied on by learned counsel for the appellant that a rehabilitation grant bears a distinctly separate character from the compensation money payable to a jagirdar on the resumption of his jagir and is in the nature of his personal estate, being something allowed to him to re-establish himself after he has been expropriated. This might have been a good ground for exemption from attachment and sale of such bonds if the Legislature had made a suitable provision to that effect. But of that we find no indication in any provisions contained in the Rajasthan Jagirdars' Debt Reduction Act, 1956, and indeed such bonds have been made saleable in payment of the debts of jagirdars as we have already discussed above. For these reasons we think on the whole that this contention has no force either, and we overrule it. ;