- (1.) THE appellant has filed this appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 against the order of the Deputy Collector, Jagir, Jalore dated the 15th December, 1962.
(2.) BRIEFLY, the facts are that the appellant was granted a succession certificate under sec. 38 of the Jagir Act on the death of the Ex-Jagirdar of Galifa being the widow of the deceased. This succession certificate was granted at the time when the Ex-Jagirdar died after the resumption of his Jagir. Against this order the respondent filed a review petition before the Deputy Collector, Jagir who accepted it on the ground that he committed an error apparent on the face of the record by applying the provisions of Hindu Succession Act, 1956 and deciding the succession to the deceased jagirdar on that basis. In the Deputy Collector's opinion the succession should have been decided according to the provisions of sec. 182 of the Marwar Land Revenue Act, 1949 and accordingly the Deputy Collector ordered further enquiry in the matter. Aggrieved by that order the appellant has filed the present appeal. A preliminary objection was raised by the learned counsel for the respondent that the previous order dated the 4th October, 1961 in favour of the appellant recognising her as the successor to the deceased jagirdar was only set aside by accepting the review petition of the respondent by the Deputy Collector, Jagir and no final order was passed by him. Thus there was no order before the Board of Revenue under sec. 38 of the Jagirs Act in favour of one party or the other which was appealable under sec. 39 of the Jagirs Act. In fact the counsel argued no one has been declared as the heir of the deceased Jagirdar so far as the position stands upto date. The learned counsel for the appellant's reply to this preliminary objection was that it is an admitted fact that the appellant was the widow of the deceased jagirdar and respondent was his brother and the Deputy Collector, Jagir in accepting the review petition had already made up his mind that the law of primogeniture in the case of scheduled jagirs of Marwar under the Marwar Land Revenue Act applied to this case and there was an error in applying the provisions of Hindu Succession Act to this matter. There was no question, therefore, of taking further evidence in this matter. The order as far as the appellant was concerned was final in all respects. We have considered the arguments advanced from both sides and perused the record. The question before the Deputy Collector was whether the succession to the ex-Jagir of Galifa was governed by the provisions of the Hindu Succession Act or by the provisions contained under the Marwar Land Revenue Act sec. 182 on the basis of primogeniture. There is no doubt that the Deputy Collector, Jagir did make up his mind in the order appealed against that to this succession the provisions of the Marwar Land Revenue Act applied and not the provisions of Hindu Succession Act, but at the same time the Deputy Collector, Jagir did not pass the final order in this matter which could have been a proper order for appeal before this Court. There is great force in the preliminary objection raised by the respondents that this appeal was not maintainable as no final order has been passed by the Deputy Collector Jagir holding one party or the other to be the rightful heir and successor to the deceased Jagirdar. We, therefore, reject this appeal of the appellant as not maintainable on the ground that no final order has been passed under sec. 38 of the Jagirs Act, but at the same time direct the Deputy Collector, Jagir that the question of the application of the provisions of Hindu Succession Act as well as the Marwar Land Revenue Act to govern the succession to this case should be kept open and the decision should be only taken after the parties have been fully heard. In fact he should decide which law will apply to this case. If he came to the conclusion that the Hindu Succession Act did not apply to the present case then alone the question of proving the custom and usage under the personal Hindu Law or the law of primogeniture under the Marwar Land Revenue Act could be considered and evidence admitted on those points after clearing the pleadings of the parties in this enquiry. .;