1. These two appeals are from an award given on 26th November 1957 by the Jagirdars Debt Settlement Board. The essential facts are as follows :
2. Bankatlal Badruka and Maharudrappa Kheni and others filed their claims against the estate left by Rasul Yar Jung Mustafa Yar Khan. Asgarunnisa Begum and others claimed their debts against the estate of Moin Yar Khan. We are not concerned with the other claims which also were considered by the Board. It appears that Nawab Rasool Yar Jung, who was the jagirdar died leaving Karunnisa Begum as his widow: Moin Yar Khan, Mustafa Yar Khan and Khaja Yar Khan as his sons and also Ahmedunnisa Begum, Mohammadunnisa Begum, Barkatunnisa Begum, Muncerunnisa, Begum and Marijunnisa Begum as daughters. At the time when jagirs were abolished, Moin Yar Khan was living. He died before the Commutation Regulation was brought into force. On the basis of the abovesaid claims preferred by the creditors the Jagirdars Debt Settlement Board, hereinafter referred to as the Board, decided preliminary issues visualised by Section 24 of the Hyderabad Jagirdars Debt Settlement Act of 1952 and after making proper enquiries determined the property of Nawab Kasool Yar Jung and Moin Yar Khan and also the liability of the said two jagirdars, regarding the debts payable to various creditors. After determining the paying capacity of the two jagirdars as equal to 60 per cent of the total value of the property of the said debtors, the Board gave several directions regarding the realisation of the debts in its award dated 26th November, 1957.
3. Dissatisfied with the abovesaid award, Lalta Prasad preferred A. S. 496/57 and Mustafa Yar Khan and others, legal representatives of the debtors-jagirdars, preferred A. S. 253/58. These appeals came for hearing before Umamaheswaram and Chandrasekhara Sastry, JJ. The learned Judges thought that the question involved in the appeals is of great importance affecting a large number of cases pending before the Board. They therefore referred these two appeals to a Full Bench and that is how these cases have come before us.
4. As a result of the arguments advanced before us the following questions pose themselves for our determination.
1. Whether the commutation amount paid to the legal representatives of a jagirdar who died after the passing of the Hyderabad (Abolition of Jagirs) Regulation 1358 Fasli (LXIX of 1358 Fasli) can be proceeded against for the payment of debts due by the jagirdar to the creditors, and if so, to what extent the commutation is available for satisfying the debts for the creditors.
2. Whether the amount claimed by Asgarunnisa Begum wife of Moin Yar Khan, as dower is a debt due from the Estate of Moin Yar Khan. The quantum of the dower as well as the question whether Asgarrunnisa Begum had relinquished her claim to dower also fail for our determination.
3. Whether the debts of the creditors as against Rasool Yar Jung are extinguished and if not, whether the Devdi of Rasool Yar Jung is available for the realisation of debts against him.
We will consider the abovesaid points in the order in which they were argued before us. If was argued by Mr. Bhargava, the learned Advocate for Lalta Prasad, that the Board has erred in allowing half of the commutation amount to be proceeded against for the realisation of the debts. His contention is that, after the death of Moin Yar Khan, the whole of the commutation amount is his matruka property and therefore the creditors can legitimately proceed against the whole of such amount. On the other hand, it is contended by Mr. Jaleel Ahmed, the learned Counsel appearing for the legal representatives of Moin Yar Khan that the commutation amount is an Atiyat grant which after the death of Moin Yar Khan is held by the legal representatives on their own right, and that the commutation amount therefore is not matruka property of Moin Yar Khan. As an alternative he submits that in any case not more than half of the commutation amount can be made available for the payment of the debts of the jagirdars. In order to properly appreciate these rival contentions it is necessary to keep in view some provisions of the Jagirdars Debt Settlement Act, 12 of 1952, hereinafter called Debt Settlement Act. This Act came into force on 18th March, 1952. The intention of the Act as is mentioned in the preamble is to make provision for the settlement of the debts of the jagirdars. The Act defines 'debt' and also 'Jagirdar'. The definition of 'jagirdar' is as follows :
'2(f) 'Jagirdar' includes a Guzarayab and Hissedar as defined in Clauses (c) and (e) respectively of Section 2 of the Hyderabad (Abolition of Jagirs) Regulation, 1358F'.
Section 11 of the Act contemplated that any Jagirdar or his creditor can make an application to a Board for settlement of debts due by the Jagirdar. Various other provisions lay down the procedure for enquiring into the applications filed under Section 11, with which we are not concerned for our present enquiry. It is sufficient to say that Section 31 provides that after taking accounts the Board shall determine (1) the particulars of the property belonging to the debtor, (2) the value of the said property, (3) the particulars of any encumbrances on the said property and (4) the paying capacity of the debtor. Section 33 enacts that the paying capacity of the debtor under Section 31 shall be determined by the Board after determining the value of the property and other asserts of the debtor, in determining which, the property or assets which are exempt from attachment in execution of a decree of a civil Court under the Code of Civil Procedure, shall not be taken into account. Similarly the amount of the debts mentioned in Section 3 shall also be deducted and the market value of the lands which under any law are not transferable or alienable except with the previous sanction of the Collector or the Government shall be calculated in the prescribed manner. Section 34 provides that the paying capacity of the debtor shall for the purpose of this Act be deemed to be 60 per cent of the value of all the property of the debtor. Section 36 directs that after determining the amount or debt scaled down in the manner provided by Sections 35 and 37, the Board shall make an award. Section 38 prohibits recovery of amount in excess of debts scaled down and finally Section 42 provides for the manner in which the award is to be executed.
5. From a reading of the abovesaid provisions of the Debt Settlement Act it becomes clear that for the purpose of making an award, what is material is to determine the particulars of the property belonging to the debtor, value of such property and in the light of that the paying capacity of the debtor. Any question with regard to the attachability of any property in execution of the award obviously does not arise at this stage. In order to so determine the property which belongs to the debtor it is nevertheless necessary to find out whether the commutation amount is a property belong to the debtor which can be taken into account for determining the paying capacity of the debtor.
It is not disputed that in this case we are concerned with the estate of Nawab Moin Yar Khan and it is in reference to his debts that we have to examine whether the commutation amount payable to him is his property which can be taken into account for the purposes of determining his paying capacity. It is conceded by Mr. Jaleel Ahmed that the commutation amount falls within the definition of the word 'property'. What he however contends is that the commutation amount does not remain the property of Moin Yar Khan after his death. In order to find out a correct answer to this question we have naturally to closely examine various provisions of the Hyderabad (Abolition of Jagirs) Regulations 1358 F. (LXIX of 1358 Fasli), hereinafter called an Abolition of Jagirs Regulation, and the Hyderabad Jagirs (Commutation) Regulation, 1359 Fasli (XXV of 1359 Fasli), hereinafter called as Commutation Regulation. The abolition of Jagirs Regulation came into force on 15-8-1949. Broadly speaking by this Regulation all jagirs were included in Dewani and from the appointed day the Jagir Administrator took over the administration of all such jagirs. The object of the Abolition of Jagirs Regulation is to abolish jagirs and to provide, pending the determination of the terms of commutation, for the payment to Jagirdars and hissedars of certain interim allowances. The material provisions are as follows:
'2(h) : 'Jagirdar' means the person who immediately before the date appointed under Section 5 was the holder (qabiz) of a jagir and includes the Amir of a Paigah and the Vali of a Samsthan;'
Section 3 provides for the appointment of jagir Administrator. Section 4 is important for the purposes of our enquiry which is in the following terms :
'After the commencement of this Regulation, no person shall be appointed to be, or be recognised as a jagirdar whether in succession to a deceased Jagirdar or otherwise'.
Section 5 provides that on the appointed date the jagirdar shall make over the management of the jagir to the Jagir Administrator and Section 6 lays down that the jagir from the appointed day shall be included in the Diwani and unless and until included in the district constituted under the Hyderabad Land Revenue Act shall be administered by the Jagir Administrator. From that date the powers, rights and liabilities of the jagirdar in relation to the jagir shall cease to be exercisable and enforceable by or against the jagirdar and shall be exercisable and enforceable by or against the Jagir Administrator. All expenditure incurred by the Jagir Administrator or the administration of a jagir shall be defrayed from the revenue of the State. Sub-section (7) of Section 6 makes the share of a jagirdar or hissedar in the net income of a jagir and the maintenance allowance of Guzarayab inalienable save with the previous sanction of the Government and also declares that not more than one half of such share or allowance shall be liable to attachment and sale in any one year of account in execution of a decree and no part thereof shall be so liable save with the previous sanction of the Government. Sub-section (8) enacts that if a jagirdar or hissedar dies, his share in the net income of the jagir, including his share in the Heq-e-Intezam, shall devolve in accordance with his personal law, provided that in the case of a Muslim jagirdar or hissedar the principle of Hijb Hirman shall not apply and that in the case of a male Hindu Jagirdar his share shall be deemed to be his separate property. Section 7 defines the words 'balance' and' 'net income' of the jagir, whereas Section 8 determines the percentage from the revenue of the jagir which is payable to the Government. In order to determine what amount should be paid from the balance to the Jagirdars Section 8 classifies them into four categories. We are unconcerned with the first three categories in our present enquiry. What is relevant is Sub-section (4) of Section 9 which reads as follows :
'9. For the purposes of payments to be made from the balance, jagirs (other than Paigahs), shall be classified in the following categories, namely :
(1) ............... ............... ...... ...
(2) ......... ......... ...
(3) ......... ......... ......... -
(4) Jagirs in which the Jagirdar dies after the commencement of this Regulation.
Sub-section (4) of Section 10 says : 'In the case of jagirs in category (4) an amount equivalent to the haq-e-intazam shall, as from the year of account following the year in which the the Jagirdar dies, be distributed between hissedar including the heirs of the deceased Jagirdar, in the proportions to which they are under the existing law entitled to the income of the Jagir.'
Section 11 says that in the case of a jagir other than a Paigah, the net income shall be distributed between the jagirdars and hissedars in the proportion to which they are entitled under the existing law. Section 12 also states that from the amount payable to any person under Section 11 there shall be deducted the amount of any maintenance allowance which according to Section 12 (2) is debitable to share of that person. It is Section 14 which determines the character of such payment, from the net income of jagir to the jagirdars. It states that the amount payable to jagirdars and hissedars under this Regulation shall be deemed to be interim maintenance allowances payable until such time as the terms for the commutation of jagirs are determined. Other provisions of the said Regulation are not essential for our purpose.
What becomes clear from a close examination of the entire scheme of the said Regulation is that all jagirs from the appointed day stand abolished. Before such jagirs are merged in the adjacent appropriate revenue districts it is the Jagir Administrator who looks after the administration of such areas and all the expenditure which he incurs is a charge on the State revenue. The jagirdars, who according to the definition are the persons who immediately before the date appointed under Section 5 are the holders of jagirs, may be paid interim maintenance allowance according to a formula defined in the provisions of the said Regulation. These interim maintenance allowances will be continued till commutation amount is determined. It is significant that from the appointed day the jagirdar is completely relieved of the administration of the jagir. Accordingly the powers, rights and liabilities of such jagirdars in relation to the jagirs cease to be exercisable. The share of a jagirdar or hissedar in the net income of jagir as provided in the said Regulation and the maintenance allowances of a Guzarayab are made inalienable save with the previous sanction of the Government and not more than one half of such share or allowance is excluded from attachment and sale in any one year of account in execution of a decree.
It is pertinent to remember that according to the Regulation if a jagirdar or hissedar dies, his share in the net income devolves in accordance with his personal law. The principle of. Hijb Hirman is not made applicable and in case of a male Hindu his share is considered to be his separate property. Even in regard to the payment of interim maintenance allowances from the balance of the jagir income, the Regulation makes a provision that in case any jagirdar dies after the abolition of Jagirs Regulation has come into force the amount mentioned in Section 10(4) be distributed between hissedars including the heirs of the deceased jagirdar in the proportions to which they are under the existing law entitled to the income of the jagir, and the existing law undisputably includes personal law. These provisions therefore clearly indicate that the jagirs get abolished and interim maintenance allowances are made immediately payable until such date when the commutation amount is determined, The jagirdars no more enjoy the status of a jagirdar. Nothing like jagir continues and the interim allowance is treated as the personal heritable property of jagirdar. From the definition of 'jagirdar' and the above said different provisions very little doubt is left that from the appointed day the institution of jagirdars came to an end. Section 4 completely prohibits the appointment or recognition of any person as a jagirdar whether in succession to a deceased jagirdar or otherwise. There is therefore no question of re-granting the jagir and the fiction that on the death of every jagirdar the grant returns to the grantor who can make or refuse to make any grant and that in case of regrants it is considered to be a fresh grant, has undoubtedly come to an end from the appointed day.
In this case it is admitted that Nawab Moin Yar Khan died on 22nd November, 1949 after the Abolition of Jagirs Regulation came into force. In his lifetime from the appointed day the jagirs were abolished and it is he who was considered as a jagirdar falling within that definition. The interim maintenance allowances became payable _ to him until the commutation amount is determined. It is therefore idle to contend that the compensation of the jagir which was taken over by the Government had not become payable during the life time of Moin Yar Khan, or that his legal representatives take the compensation on their own right. What is ignored in making such submission is that under the said Regulation the legal heirs who were getting the interim maintenance allowance and then commutation, they get it not on their own right, but only as heirs of the deceased Moin Yar Khan, these legal heirs have not been considered the jagirdars for the purposes of the said Regulation. They derive their right to get the amount not because the jagir was re-granted to them. They get the amount exactly like any other property left by the deceased. There is nothing which goes counter to this conclusion in the Commutation Regulation. The Commutation Regulation came into force on 25th January, 1950 within few months of the Jagir Abolition Regulation. Its purpose is clear from its preamble. It is to provide for the termination of the interim allowances payable under the Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli and for the determination of the terms of commutation of jagirs. All the words and expressions defined in the Abolition of Jagirs Regulation are adopted for the purposes of this Regulation also Sections 3, 4 and 5 lay down the method of determining the commutation sum. Section 6 provides for the distribution of commutation sum. It is to be distributed between the jagirdars and hissedars in the like proportions as the net income was distributable under Sections 11 and 12 of the Abolition of Jagirs Regulation. Section 7 declares that from 1st April, 1950 the interim maintenance allowances shall cease to be paid and the payment to a jagirdar or jagir shall constitute the final commutation. Section 9 puts a restriction on alienation and attachment of the commutation sum. It declares that a share of a jagirdar or hissedar in the commutation sum for a jagir and the maintenance allowance of Guzrayab shall to inalienable save with the previous sanction of the Government and not more than one half of such share or allowance shall be liable to attachment and sale in any one year of account in execution of a decree. These two Regulations which constitute FASCICULUS concerning the Abolition of Jagirs leave no doubt in our mind that from the appointed day all jagirs were extinguished and integrated with the Divani and the compensation of such abolition of jagirs became payable to the jagirdar as defined in the Abolition of Jagirs Regulation i.e., the person who held the jagir at the time of the commencement of the Abolition of Jagirs Regulation who is considered to be entitled to receive such compensation. All insignia of jagir became extinct from that day onward. It therefore follows that the interim maintenance allowance paid first and then commutation, which was payable to the jagirdar, is his property, and after his death it descends to his heirs like any other property left by the deceased. It is not disputed that in the case of a jagir grant, the jagirdar holds it as Atiyat property and not as a matruka, as pointed out by the Supreme Court of India in Civil Appeals Nos. 193 and 199 of 1950, D/- 6-12-1954 (SC), that there is no succession in the legal sense to the Atiyat property, but what takes place on the death of the last owner of the jagir is a re-grant and that being so, whatever becomes due and is received by the heirs after the death of the former grantee is received by them in their own right. Thus in law every re-grant of a jagir to the heirs of the deceased is a new grant and there is no question of any succession thereto. As discussed above the commutation amount does not partake of the character of a jagir, as it lacks in alt the essentialities which a jagir contains. The contention that there is no provision in that Com-mutation Regulation similar to the one regarding the character of the interim maintenance allowance payable to a jagirdar or a hissedar in the Abolition of Jagirs Regulation is not correct. It is true that Sub-section (8) of Section 6 of the Abolition of Jagirs Regulation makes the net income payable to a jagirdar heritable in accordance with the personal law. Section 6 of the Commutation Regulation however provides an answer to that according to which the commutation sum is to be distributed in like proportions as the net income was distributable under Sections 11 and 12 of live Abolition of Jagirs Regulation, which would naturally attract the provisions of Sections 6(8) and 10(4) of the Abolition of Jagirs Regulation.
6. Mr. Jaleel Ahmed however argues that the character of jagir is retained even after the abolition of jagirs for the purpose of commutation inasmuch as the Hyderabad Atiyat Enquiries Act has brought the commutation sums within the definition, of 'Aliyat grants'. It is true that the definition of Atiyat grants' was amended in 1956, which definition after the amendment stands as follows:
2(1)(b) Atiyat grants mean.........
1. in the case of jagirs abolished under the Hyderabad (Abolition of Jagirs) Regulation 1358 Fasli (LXIX of 1358 Fasli) the commutation sums payable in respect thereof under the Hyderabad Jagirs (Commutation) Regulation, 1359 F. (XXV of 1359 Fasli);
This is not the only change which has been brought about by the Amending Act of 1956. In order therefore to correctly understand why the commutation sum was brought within the definition of 'Atiyat grants' for the first time in 1956 it becomes necessary to refer to other provisions which were also brought in along with the amendment in the definition of 'Atiyat grants'. Section 3 was substituted. Section 3-A however is of materiality which is in the following terms:
'3-A (1) In the case of Atiyat grants specified in Sub-clause (i) of Clause (b) of Sub-section (1) of Section 2 Atiyat enquiries and enquiries as to any right, title, or interest therein shall, notwithstanding anything contained in the Hyderabad (Abolition of Jagirs) Regulation, 1358 F. (LXIX of 1358 Fasli) be held in Atiyat Courts in accordance with the provisions of this Act and in the course of such enquiries, Atiyat Courts shall also be competent to enquire into claims to succession arising in respect of such grants;
Provided that claims to succession arising after the completion of Atiyat inquiry of any such grant shall not be entertained in any Atiyat Court and all such claims shall be filed in and decided by the competent Civil Court.'
Sub-section (2) is not relevant, Section 7 enacts that subject to the provisions of this Act, succession to Atiyat grants shall, after the commencement of this Act, be regulated by the personal law applicable to the last holder. Similarly Sub-section (2) of Section 12 was inserted by the Amending Act of 1956 which says that if in the course of any enquiry as to claims to succession, any dispute arises involving questions of succession, legitimacy, divorce or other questions of personal law, the Atiyat Court shall direct the parties to get the dispute decided in the competent Civil Court and on the final decision of the Civil Court, the Atiyat Court shall give effect to such decision. Section 16 was similarly inserted. Section 16(a) with which we are concerned is as follows :
'16. The provisions of this Act, shall cease to be applicable:
(a) to an Atiyat grant specified in Sub-clause (i) of Clause (b) of Sub-section (1) of Section 2, when the commutation sum has ceased to be payable;'
It seems to be plain from the over-all scheme of the Amending Act that although jagirs were abolished, cases of 'inam enquiry in respect of several jagirs were yet to be completed; and payment of commutation sum naturally depended on the completion of such enquiries. It was obvious that in view of the nature of the grants such enquiries should be held in Atiyat Courts. The Legislature therefore thought it desirable to bring such enquiry within the purview of the Atiyat Enquiries Act. It is also _ clear that in the course of such enquiries if any claims to succession arose, the Atiyat Court should be competent to enquire into such claims, but it has been made plain that any claims to succession arising after the completion of inam enquiry ought to be filed in and decided by the Civil Courts under Section 21(2) of the Abolition of Jagirs Regulation and not by the Atiyat Courts. It is also manifest that if in the course of any enquiry as to claims to succession any dispute involving questions of legitimacy; divorce or other questions of personal law arises, the Atiyat Court shall direct the parties to get it adjudicated in the competent civil Court. It is only in view of these considerations that the Amending Act was given retrospective effect. This reading of the Amending Act is well-supported by the statement of objects and reasons of the Bill introduced to the Legislature. It therefore follows that although the commutation sum has been brought within the definition of 'Atiyat grant', it is only for the purposes of making inam enquiry of such jagirs, the inam enquiry of which has not been completed on the date of the abolition of jagirs. This is not the case as far as the present case is concerned. It is nobody's case that the inam enquiry relating to the jagir held by Moin Yar Khan was yet to be completed. Even after bringing the commutation sum within the definition of Atiyat grant, there is no indication anywhere in the Atiyat Enquiries Act to suggest, even remotely, that the attributes of jagir were in effect continued. On the contrary the scheme of the Amending Act referred to above unmistakably points out that the personal law is made applicable according to which succession and inheritance is determined and any dispute arising in reference to them is to be finally adjudicated upon by a competent civil Court. It is therefore incorrect to say that because commutation sum has been defined as Atiyat grant even after the death of Moin Yar Khan, his legal representatives continue to get the commutation sum as an Atiyat grant i.e., jagir. The scope of the Atiyar Enquiries Act must be kept in view. It is more or less a procedural Act which authorises the Atiyat Court to continue and adjudicate cases regarding the inam enquiries which were pending or to be instituted in reference to certain jagirs, whose inam enquiries were not completed. The Act has nothing to do with the continuation of jagir. It does not go in any sense counter to the Abolition of Jagirs Regulation. Apart from general reading of the provisions of the Abolition of Jagirs Regulation and Commutation Regulation. Sections 3(h), 4 and 10(4) of the Abolition of Jagirs Regulation provides a complete answer to the argument now advanced before us in that, the jagirs are extinct from the appointed day and no one can be recognised or appointed as jagirdar thereafter. The definition of Atiyat grant therefore cannot be called in aid for suggesting that its effect is to continue the jagir in the hands of the legal representatives of Moin Yar Khan. This argument is fallacious from another point of view also. The Abolition of Jagirs Regulation makes it abundantly clear that the jagirs were taken over by the Government on the appointed day and in lieu of that the jagirdars were to be paid commutation sum. The legislative intention of paying the commutation sum is manifest from Section 14 of the Abolition of Jagirs Regulation. The only thing which the Abolition of Jagirs Regulation does is to postpone the determination of the quantum of commutation. Nevertheless in the meanwhile the jagirdars are paid interim maintenance allowances according to the formula enunciated by the Abolition of Jagirs Regulation. It is thus clear that the commutation sum although the quantum of it was not determined, became payable on the appointed day. The liability to pay commutation sum was unmistakably accepted by the Government in the Abolition of Jagirs Regulation. The payment may have been postponed; the manner in which the quantum of commutation sum will be determined may have been the subject of a later legislation: yet the fact remains that the jagir was abolished and commutation was declared to be paid. From this the conclusion is inescapable that the commutation sum may have been called as 'Atiyat grant' for the purposes of Atiyat Enquiries Act, but it does not necessarily follow from that that it (the grant) continues to partake of the characteristics of a jagir. There is no foundation or any scope for such argument. The argument that as the share in jagir income or the commutation amount has been specifically made inalienable and a portion of it is made unattachable, the com-mutation amount continues to partake of the character of a jagir, may look attractive but certainly it has no force. These provisions were conceived in the interests of jagirdars who were facing financial difficulties in view of the abolition of jagirs. It is only to give them some relief that these provisions were inserted in the Act and subsequently for the same purpose the Debt Settlement Act also enacted. These steps hardly_ indicate that their position as jagirdars was continued or the jagirs which they held continued as jagirs in the form of commutation.
7. For the reasons given above it follows that the commutation sum due to a jagirdar is not paid to him in his con`tinued former capacity as a jagirdar and in any case where such a sum is due to a jagirdar who had died after the Abolition of Jagirs Regulation came into force, it would become payable to his heirs in accordance with the personal law, that is to say ordinary law of inheritance. There is no provision in any one of the enactments referred above indicating a contrary intention.
8. We were referred to a decision of a Division Bench of this Court given in Appeal No. 63/1 of 1955 and C. M. A. No. 1 of 1958 (AP) the learned Judge no doubt decided that :
'In both these appeals the short point for determination whether the jagir commutation amount is a matruka. The question whether the jagir commutation amount is matruka has been set at rest by a decision of the Supreme Court in Civil Appeals Nos. 193 and 199 of 1950 (SC) between the same parties and it has been held that the jagir income accruing due after the death of defendant 1 (jagirdar) would be treated as the property of the legal representatives themselves'.
The learned Judges thought that they were bound by the decision of the Supreme Court. In order therefore to find out what the Supreme Court has decided in that case it is necessary to examine closely that decision. Mehr Chand Mahajan, C. J., who spoke for the Court, mentioned at the ontset in the judgment:
'......The legal representatives of defendant I, who had died during the pendency of the appeals, be brought on record, and that the appeals be transferred 'to Delhi to be heard there. The legal representatives had no objection to a decision being given against the estate of the deceased defendant and they then stated that they did not wish to fight out this matter.'
In the course of the judgment the learned Chief Justice observed:
'The income received by his heirs that accrued due after his death cannot however be described as part of his estate and his Matruka: as it is well settled that there is no succession in the legal sense to the Atiyat property. What takes place on the death of the last owner of the jagir is a re-grant and that being so, whatever becomes due and is received by the heirs after the death of the former grantee is received by them in their own right.'
It is only in the light of these observations that in the concluding part of the judgment the learned Chief Justice said:
'.........the legal representatives of defendant 1 nly be liable to the extent of the estate of defendant 1 that may have come into their hands. There will be no order as to costs of these appeals. The jagir income accruing due after the death of defendant 1 would be treated as the property of the legal representatives themselves'.
Mr. Jaleel Ahmed relying upon the concluding portion of the judgment extracted above submits that defendant 1, who had died after the Abolition of Jagirs Regulation during the pendency of the appeal, could not have derived any income from the jagir except the commutation amount. He therefore contends that the concluding observation of the learned Chief Justice of the Supreme Court that the jagir income accruing due after the death of defendant No. 1 would be treated as the property of the legal representatives themselves, would apply with full vigour to the commutation amount of this case. We are unable to read any such thing in the judgment From a careful reading of the whole of the judgment it becomes clear that the Supreme Court was not considering the nature of the commutation amount in the light of the Abolition of Jagirs Regulation and the Commutation Regulation, nor that point was specifically raised before the Supreme Court. It must be remembered that in that case the legal representatives of defendant 1 had conceded that the property left by the deceased could be proceeded against for the realisation of the debts, which defendant 1 had undertaken to pay under an agreement. Jagir income cannot be equated by any stretch of imagination with that of the commutation. Commutation is, in a way, compensation of the jagir taken over by the Government. The argument may have carried some weight if it had been merely confined to the interim maintenance allowance, which was paid out of the net income of the jagir, but, without deciding that, we may only say that the question does not arise in this case. There is therefore no scope for any argument that the observation extracted above relates to commutation, or that the Supreme Court decided that the commutation amount partakes of the characteristics of a jagir and that it is a self-acquired property in the hands of the legal representatives on their own right and not by way of succession to the property of the deceased. The meaning which is tried to be attributed to the decision can hardly be gathered from a close reading of the judgment. That being so, we are unable to share the views expressed by our learned brother in the abovesaid Bench case. The Supreme Court was dealing with a case instituted long before the Abolition of Jagirs Regulation was brought into force. It could not have therefore been possible to decide that case in the light of subsequent enactment. The concluding observation of the learned Chief Justice, if read in the light of the earlier observations extracted above, makes it clear that what the learned Chief Justice wanted to convey was that the income received by the heirs of the deceased accrued due after his death cannot be described as part of his estate or his matruka, as it is well-settled that there is no succession in the legal sense to Atiyat property. It was made clear earlier in the decision in reference to this very question that what takes place on the death of the last owner of the jagir is a regrant and that being so, whatever becomes due and is received by the heirs after the death of the former grantee is received by them on their own right. As discussed above there is no question of re-grant as far as the commutation amount is concerned. It the concluding observations of the Supreme Court are read in the light of the abovesaid earlier observations, it leaves no doubt that their Lordships were mainly concerned with a situation as it existed prior to the Abolition of Jagirs Regulation came into force and not with a situation as it arose after the jagirs were abolished. We will be doing violence to the language used in the judgment if we clothe ft with a meaning which cannot be read into it. In this connection our attention also was drawn to a decision given by our learned brother, Bhimasankaram, J. in Mustafa Yar Khan v. Asgharunnisa Begum, (1958) 1 Andh WR 192. The said judgment proceeds more or less on the same lines and reaches the same conclusion to which we have reached.
9. For the reasons which we have endeavoured to give we have no hesitation in coming to the conclusion that for the purpose of Sections 31, 33, and 34 of the Debt Settlement Act the whole amount of commutation will have to be taken into account as it is a property left by Moin Yar Khan and it is only after taking the entire amount of commutation into account that the paying capacity of Moin Yar Khan will have to be determined. Consequently to that extent the liability to pay the debts will go up. The Board will calculate the liability keeping in view the entire commutation amount of the jagir and modify the award accordingly. The argument of Mr. Jaleel Ahmed therefore that the entire commutation amount being an Atiyat grant cannot be considered as the property of the deceased, cannot be accepted as correct.
10. The only point which survives in this respect is whether the entire commutation amount is available for the purpose of paying the creditors as is urged by Mr. Bhargav, or it is only half of the commutation amount which can be attached for realising the debts as is put in the alternative by Mr. Jaleel Ahmed. As stated at the outset this is not the stage where we can decide this point. Although therefore the learned Judges who referred the case to the Full Bench posed the question whether the commutation amount can be proceeded against for the payment of debts due by the jagirdars to the creditors and the arguments addressed to us were on similar lines and we also formulated first question for determination at the outset of our judgment based on the arguments accordingly, in our judgment, in the light of Sections 31, 33, 34 and 36 of the Debt Settlement Act, this is not the stage and it is not necessary for making an award to decide the question whether the whole of the commutation amount can be attached or it is only the half which is available for the payment of debts. It wilt be open to the parties to raise the question when the award is to be executed under Section 42 of the Debt Settlement Act. The true question which falls for determination at this stage is whether the entire commutation amount can be taken into consideration for determining the paying capacity. As we have come to the conclusion that it is a property of the deceased, we do not consider it necessary to decide the question whether the whole of it is attachable or only the half, as any decision at this stage for the purposes of making an award is premature and uncalled for. We are sitting in appeal which is preferred against an award given under Section 36 and it is desirable to limit our considerations to the questions which are necessary for the making of an award only.