AMRIT LAL AND ORS. v. MAHARANI AND ORS. INSC 1249

Before adverting to the question involved, we may notice that the matter was heard by another Bench of this Court. The appellants were asked to file the deed of lease of the disputed property. On the plea that the said deed of lease could not be traced out because the house of the appellants had fallen down due to rain and valuable things including the said deed was destroyed, the same has not been produced. Such a plea had not been taken earlier. The said deed of lease was directed to be produced as the same had not been produced before the courts below. It was absolutely necessary for proving his case.

We had pointedly asked Shri Pandey to show from the records as to when the said lease was granted and what was the date of partition. The learned counsel failed to answer any of the queries. There is also nothing on record to show that the provisions of the Oudh Rent Act would apply. If the Khata No. 908 was the subject matter of an occupancy tenancy, there cannot be any doubt whatsoever that the property would be heritable. Once it is held that the property belonged to mitakshra coparcenary family, Baldi cannot be said to have an exclusive right thereover and, thus, the question of the said property having vested again to the Zamindar of the Village upon his death did not and could not arise. The rule of succession governing the Mitakshra School of Hindu Law would operate.

Mr. Pandey has relied upon a decision of the Board of Revenue in Bijai Sunderji v. Hari Prasad & Ors. reported in 1942 Revenue Decisions

212. In that case, the name of Sarbjit alone was entered in the patwari papers although the name of the plaintiffs had been shown as marfat in the column for tenant-in-chief and in the remarks column and in certain other years they were shown as sub-tenants. It is in the fact of that case and keeping in view the provisions of Section 48 of the Oudh Rent Act, 1886 vis-`-vis Section 3(10) thereof, it was held that when a patta is granted in favour of one member of the family, the same cannot be treated to be a grant made in favour of the entire joint family.

It is not a case where the patta was granted in favour of one of the members of the family. Admittedly, it belonged to a family governed by Mitakshra School of Hindu Law. If for the purpose of collection of revenue or otherwise, the name of Shankar was entered into in the revenue records after the death of Baldi, but the same would not mean that the property vested in him irrespective of the share of the other co-owners. A mitakshra coparcenary being a separate entity; once the property vested in it, the same would continue to vest in it irrespective of the death of one or the other coparceners subject of course to the application of rule of survivorship. Furthermore, upon coming into force of the U.P. Zamindari Abolition and Land Reforms Act, 1951, the right, title and interest of the Zamindar vested in the State. The matter relating to succession and inheritance would be governed by the provisions of the Hindu Succession Act, 1956.

In that view of the matter, the case Bijai Sunderji (supra) cannot be said to have any application whatsoever.

In any view of the matter as has rightly been held by the High Court, there exists a presumption with regard to the continuance of the joint family. It was for the appellants to establish that the joint family disrupted prior to the said purported grant. It has been found as of fact that there has been no pleading far less any proof that Baldi was in possession of the land pursuant to any patta granted by the Zamindar in his individual capacity. On the other hand, the records clearly pointed out that the Khata in question was an ancestral property recorded in the name of late Baldi.

For the reasons aforementioned, there is no merit in this appeal. It is dismissed accordingly with costs. Counsel's fee assessed at Rs.10,000/-.