1. This is plaintiff's second appeal involving interesting points of law. The properties in dispute are agricultural lands survey Nos. 89 and 90 situated in village Sangavi Surya in Taluka Parner. Survey No. 89 measures 3 acres 29 gunthas and is assessed at Rs. 5-2-0. It is a Bagayat land called as 'Malai.' Survey No. 90 measures 12 acres 23 gunthas and is assessed at Rs. 3-12-0. It is a Jirayat land known as 'Wadi'. The plaintiffs are in possession of the suit lands for a number of years. According to them, they and their ancestor have been in possession of the lands for over 60 or 70 years. One Waman Raghunath Kulkarni was shown In the record of rights extracts as the occupant of the said lands. The plaintiffs are shown in the record of rights as tenants of the said lands.
2. The Talathi of the village reported to the Taluka Magistrate of Parner that the occupant Waman Raghunath was not known to be living and the lands were intestate property. The report of the Tala-thi was received by the Taluka Magistrate on July 26, 1960 and the Taluka Magistrate in his turn made a report to the District Judge, Ahmednagar on October 15, 1962 purporting to act under Section 10 of Bombay Regulation VIII of 1827 and Section 58 of Bombay Act IV of 1890. The report was sent by him, through the Sub Divisional Magistrate, Parner Division, Ahmednagar. On October 25, 1962. the Assistant Collector, Parner Division, Ahmednagar submitted a report to the Collector of Ahmednagar with the recommendation that the papers may be forwarded to the District Judge, Ahmednagar for further orders and the Collector, Ahmednagar in his turn on November 3, 1962 forwarded it to the District Judge, Ahmednagar for necessary action. The learned District Judge before whom the report was registered as Parner Intestate Case No. 2 of 1962 passed the following order on November 16, 1962:
'Read report of the Taluka Magistrate, Parner sent under No. WS VI 1078/62 dated 15-10-1962 regarding intestate property belonging to the deceased Shri Warnan Raghunath Kulkarni of Sangavi Surya Taluka Parner.
The Nazir, Civil Court Parner, Is appointed Administrator of the property under Section 10 of the Bombay Regulation VIII of 1827'.
On the same day, he also issued an order directing the Nazir, Civil Court, Parner to take possession of the two lands mentioned above as the Administrator appointed by him under Section 10 of Regulation of 1827.
3. Coming to know of this order on December 7, 1962, the plaintiffs made an application for review of the order before the District Judge and the said review application is still pending. On that review application, the District Judge ordered stay of the recovery of possession and I am told that the plaintiffs are still in possession of the lands in dispute. The plaintiffs also gave a notice under Section 80 of the Civil Procedure Code to the Collector of Ahmednagar and to the Nazir of the suit which they intended to file challenging the validity of the order dated November 16, 1962 passed by the District Judge. In the said notice they contended that they were in possession of the lands from the time of their forefathers for over 60 to 70 years and that they had paid the assessment every year and enjoyed the land as owners openly and without any obstruction, from anybody for many years. They further stated that their names were shown as tenants of the lands and the name of Waman Raghunath Kulkarni was shown as occupant, but they did not know who Waman Raghunath Kul-karni was and his whereabouts or even whether he was living or dead. They, therefore, contended that the entry In the record of rights showing Waman Raghunath Kulkarni as occupant was a bogus entry and the village officer failed to delete it although in an enquiry made by the District Deputy Collector in the year 1945, the village officer was directed to delete the name of Waman Raghunath Kulkarni and enter the names of the plaintiffs. It was also stated in the notice that the conditions precedent mentioned in Sections 9 and 10 of the Bombay Regulation VIII of 1827 did not exist in the case at the date of the order of the appointment of the Administrator and hence the District Judge had no jurisdiction to appoint an Administrator because the properties were already in the actual possession of the plaintiffs.
4. On the basis of the said notice, the plaintiffs filed on March 6, 1963 a suit in the Court of the Civil Judge, Junior Division against the State of Maharashtra respondent No. 1 and one J. S. Jagtap, Administrator and Nazir and Clerk of the Court, Parner, respondent No. 2. On January 3, 1964. the Civil Judge, Junior Division Parner returned the plaint for presentation to the proper Court and the plaintiffs filed on January 4, 1964 the said plaint in the Court of the Civil Judge, Senior Division, Ahmednagar at Ahmednagar where it was registered as regular civil suit No. 10 of 1964. In the said suit the plaintiffs prayed for a declaration that the order passed by the District Judge, Ahmednagar in Intestate Case No. 2 of 1962 was illegal, ultra vires and void and that, therefore, no person should try to recover possession of the land from the plaintiffs and the plaintiffs also prayed for an injunction restraining the defendants from taking possession of the land or interfering with the possession of the land by the plaintiffs.
5. Respondent No. 1, State of Maharashtra, resisted the suit by filing written statement Ex. 20 contending that it was not true that the plaintiffs were in possession of the lands for over 60 or 70 years as owners. They were in possession as tenants, but the fact was that the plaintiffs were in possession as tenants of Waman Raghunath till 1943-44 and after his death, they surreptitiously got their names entered in the record of rights as cultivating the lands as owners in 1944-45 though Waman Raghunath died intestate without any heirs sometime in 1943-44 and hence the lands escheated to the State Government. Defendant No. 1 further contended that the entry of the year 1944-45 showing the plaintiffs as owners did not give the plaintiffs any better title to the lands and hence the Taluka Magistrate made a report to the District Judge in accordance with the facts as observed by him and the District Judge in his turn appointed defendant No. 2 as Administrator in accordance with law and hence the plaintiffs' suit liable to be dismissed with costs. Defendant No. 2 filed a Purshis at Ex. 22 adopting the written statement of defendant No. 1.
6. On the evidence, the Civil Judge, Senior Division, Ahmednagar held that the plaintiffs proved that they were the owners of the suit lands as the plaintiffs and their ancestors were in continuous possession of the land for over 60 or 70 years without paying rent to anybody. He regarded the entries in the name of Waman Raghunath as hollow and held that there was sufficient reason in the case to believe that the plaintiffs were cultivating the lands as owners for over 60 or 70 years. He also held that there was no evidence to show existence of any person by the name Waman Raghunath Kulkarni. He, therefore, declared that the appointment of defendant No. 2 as the Administrator of the suit lands was not legal and restrained the defendants from recovering possession of the suit lands from the plaintiffs.
7. The defendants filed an appeal in the District Court at Ahmednagar. The learned District Judge allowed the appeal, set aside the decree passed by the trial court and dismissed the suit with costs. He held that the plaintiffs failed to prove their title to the suit lands and their possession for over 60 years as owners thereof, observing as follows:
'The onus lay on the plaintiffs to prove their subsisting title to the suit lands by lawful origin. They did not allege in the plaint that they acquired title to the lands by adverse possession for more than 12 years against the rightful owner Waman Raghunath Kulkarni and in absence of a pleading of adverse possession we will have to restrict ourselves to the plaintiffs' case of their title by lawful origin and their case of continuous possession for the last 60 years as owners. They did not produce any title deed to show that they or their predecessors-in-title purchased the suit lands or got them in partition. At no point of time they or their predecessors-in-title were shown as owners or Kabjedars in Record of Rights. On the other hand Waman Raghunath Kulkarni and his predecessors-in-title were continuously shown as Kabjedars in Record of Rights. But these entries which had presumptive evidentiary value were ignored by the trial court, on the excuse that the Government did not prove that a person named Waman Raghunath Kulkarni at all existed. The plaintiffs did not allege in the plaint that Waman Raghunath Kulkarni was an imaginary person or that such a person was never born and it was not theircase that the entry in the name of Waman Raghunath Kulkarni in Record of Rights was in the name of fictitious person'.
The learned District Judge relying on the various entries in the record of rights held:
'Defendants proved beyond doubt that the lands were owned by Waman Raghunath and that the plaintiffs cultivated them as his tenants at least till his death in about 1945.'
He further held that the mere fact that the plaintiffs had not paid any rent to Waman Raghunath was not sufficient to hold that the plaintiffs cultivated the lands as owners; and the fact that the plaintiffs had paid assessments of lands for some years was not sufficient to confer ownership on the plaintiffs, particularly because it appeared from some of the entries in Exs. 8 and 43 that they paid these assessments under the terms of the lease. In view of these findings, the learned District Judge concluded that the action taken under Section 10 of the Bombay Regulation VIII of 1827 by the Taluka Magistrate was proper and the order appointing defendant No. 2 as the Administrator was also legal and proper, observing:
'After the District Judge passed an order it was for the plaintiffs to put forth their claim for enabling the District Judge to decide it; but instead of doing so they made a review application. In fact there was no question of any review. Had the plaintiffs proved their claim before the District Judge, the order appointing defendant No. 2 as administrator would have been vacated. Such an order did not decide the question of title and it was for the plaintiffs to get their title established in a Civil Court'.
He was, therefore, of the view that the proper remedy for the plaintiffs was to file a suit for the declaration of their title to the land and not a suit for a declaration that the order passed by the District Judge was illegal.
8. Feeling aggrieved by the said judgment and decree passed by the District Judge the plaintiffs have filed the present second appeal. It is patent that both the Courts below have not considered the proper law applicable to the facts of the case. The general law for the appointment of administrators and managers of intestate properties is contained in Chapter II of Bombay Regulation of 1827. The relevant provision in that Regulation is contained in Section 10 which is as under:
'10: First: Whenever any person dies intestate, and without known heirs, having property, the Judge, within whose jurisdiction the property is, shall appoint an administrator for the management thereof, and shall issue a proclamation in theform contained in Appendix C, calling upon the heir of the deceased or any person entitled to receive charge of the property, to attend and prefer his claim.
Second: The proclamation shall be published, and if the deceased was a resident of any district or country without the limits of the Court's jurisdiction, and the property is of the value of rupees one thousand (1,000) or upwards, the proclamation shall also be published in the Official Gazette.
Third: If any person appears and satisfies the Judge of his right to the possession of the property or any part of it as heir, executor, administrator or otherwise, it shall be delivered up to him, after deducting the necessary expenses of management.
Fourth: But, if no person appears and establishes his right, the Judge, on the 31st December next after the completion of twelve months from the appointment of the administrator, shall make a report of the circumstances of the case to the Sadar Diwani Adalat, accompanied by an inventory and valuation of the property; and it shall be lawful for the Sadar Diwani Adalat either to direct the property to continue for a further period under the management of the administrator, or to be sold by him under the authority of the court, and the proceeds to be deposited in the public treasury for the eventual benefit of all concerned.'
The Regulation, therefore, requires in the first instance an administrator to be appointed and a proclamation to be issued. Thereafter the District Judge must hear objections, if any; and then, after waiting for a period of 12 months ending with 31st December, he must make a report to the Sadar Diwani Adalat which is now the High Court.
9. It does not appear anywhere on the record of this case that the proclamation was issued as required by Section 10 or published in the gazette. The District Judge appears to have merely acted on the report sent by the revenue authorities without applying his mind to the legal requirements of Section 10 and the procedure to be followed thereunder which is laid down in paragraph 264 at page 88 and paragraph 267 at page 89 of Volume I of the Civil Manual issued by the High Court of Judicature, Bombay which run as under:
'264: When an administrator is appointed under Section 10 of Regulation VIII of 1827, a proclamation in the Form contained in Appendix C of the said Regulation shall be prepared by the Nazir and issued under the signature and seal of the Judge.
267: Whenever any Magistrate is of opinion that property of interstates without known heirs should be sent to the District Court he should report direct to theJudge, in the form prescribed below in this Chapter, who in the event of his concurring with the Magistrate, will order the Nazir at once to take possession, or, in the event of his differing, will direct the property to be returned, or left with the party having original possession. (See also Section 84 of Bombay Act VIII of 1951)'.
10. In the present case, no proclamation has been issued as required by these provisions and yet, the administrator has been called upon to take possession. It Is surprising that the village officer who made the original report has not cared to refer to the claim of the plaintiffs who were in possession of these lands and whose possession as tenants was shown in the record of rights entries. If the village officer had reported about these facts, the District Judge would not have proceeded to pass the order appointing an administrator without giving a notice to the plaintiffs.
11. Apart from these defects in the procedure preceding the order passed by the District Judge, I find that the District Judge who passed the impugned order as well as both the Courts in this case have ignored the proper principles of Hindu Law applicable to the case. Waman Raghunath being a Hindu dying without any known heirs or presumed to be dead without leaving any known heirs, defendant No. 1, the State of Maharashtra, would undoubtedly take his properties by escheat under the rules of the Hindu Law as they existed prior to the Hindu Succession Act if he died before June 17, 1956. If he died thereafter, the Government would take the property under Section 29 of the Hindu Succession Act which is as under :--
29: 'If an intestate has left no heir, heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government, and the Government shall take the property subject to all the obligations and liabilities to which an heir would have become subject'.
The heirs would in the present case take subject to the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 whatever be the date of death of Waman because the plaintiffs are now held to be in possession of the said lands continuously as tenants of the said lands. These aspects are not at all considered by the District Judge when ordering the administrator to take possession of the said lands. The right of the Government under Section 29 of the Hindu Succession Act or under the general law prior to the Hindu Succession Act is not higher than that of an heir who can inherit the estate, sub-subject to the liabilities and obligations of the heirs.
12. Apart from this, there is something more fatal to the order passed by the District Judge in Parner Intestate Case No. 2 of 1962 because Waman. Reghunath Kulkarni whether to be treated as dead or presumed to be dead, had merely occupancy rights in the said lands. Section 72 of the Bombay Land Revenue Code 1879 lays down as follows:
72: 'If an occupant who is either a Hindu, a Mahomedan, or a Buddhist dies intestate and without known heirs, the Collector shall dispose of his occupancy by sale, subject to the provisions of this Act or of any other law at the time in force for the sale of forfeited occupancies in realization of the land revenue, and the law at the time in force concerning property left by Hindus, Mahomedans or Buddhists, dying intestate and without known heirs shall not be deemed to apply to the said occupancy but only to the proceeds of such sale after deducting all arrears of land revenue due by the deceased to the Government and all expenses of the said sale'.
This section was enacted in the Land Revenue Code to enable the Collector to dispose of the occupancy of an occupant dying intestate and to stay the operation of the general law regarding the property left by persons dying intestate until the occupancy was sold and arrears due to Government secured. The effect of the section is that the occupancy rights in agricultural lands of a Hindu, Mahomedan or Buddhist who dies intestate and without known heirs instead of being managed and eventually sold by the administrator appointed by the District Court is sold by the Collector; and the net proceeds are made over by the latter to the administrator for credit to the deceased's estate. In short, the intention is to prevent the occupancy of persons dying intestate coming under the management of the District Court's administrator.
13. In my judgment, this section being a provision contained in a special legislation overrides the general provisions of law contained in Section 10 of the Bombay Regulation VIII of 1827. All that the Collector can sell under Section 72, however, is the right, title and interest of the deceased occupant and the subordinate rights are not affected by such a sale. The right, title and interest of the deceased must be sold by the Collector for what it will fetch. The Collector takes the place of the Administrator appointed by the District Court under Regulation VIII and now the Collector's duty is to realise by the sale of the deceased's right, title and Interest whatever he can for securing land revenue and for the benefit of the estate.
14. When an occupant dies without heirs, his occupancy does not lapse or become forfeited or liable to resumption by Government but the case is provided for in the Land Revenue Code by provisions of Section 34 of the Maharashtra Land Revenue Code, 1966 which, of course, will not be applicable to the facts of the present case but which provides that the Collector shall take possession of the occupancy rights and may lease it for a period of one year at a time. The section in the new Act gives a power to the Collector to keep any claimant in possession of the occupancy. In view of these provisions under the Land Revenue Code, it is clear that the revenue authorities erred in reporting the intestacy in respect of the occupancy rights in the suit lands under Section 10 of the Bombay Regulation VIII of 1827 to the District Judge and the District Judge acted without jurisdiction in passing an order appointing an administrator.
15. As stated above, the review application filed by the plaintiffs is still pending before the District Judge and he may, therefore, return the report to the Collector for taking proper action under the Land Revenue Code and the provisions of the Bombay Tenancy and Agricultural Lands Act.
16. In the result, the decrees passed by both the courts are set aside and it is hereby declared that the orders passed on November 16, 1962 in Parner Intestate Case No. 2 of 1962 are null and void and it is also ordered that the defendant shall be restrained from recovering possession of the suit land from the plaintiffs under the said orders. As the grounds on which this appeal is decided are grounds not urged in the lower courts, there shall be no order as to costs. Appeal allowed.
17. Appeal allowed.