C.P. Sen, J.
1. By this Judgment the connected First Appeal No. 88/1972 (Smt. Dinoobai v. State of M. P.) is also disposed of as identical questions arise in both these appeals. Though these 2 appeals arise out of 2 different suits by 2 sisters but the suits were consolidated and common judgment has been passed. These suits are for declaration under Section 11 (5) of the M. P. Ceiling on Agricultural Holdings Act, 1960, (hereinafter referred to as the Act) to have the orders passed by the competent authority set aside.
2. It is not in dispute that late Cowasji, who died in the year 1948, owned 718.20 acres of lands in different villages of Murwara Tahsil of Jabalpur District. He left behind his widow Gulbai, 3 sons Timrasji, Bejanji and Dorabji and 2 daughters Dhanbai and Dinoobai. It is also not in dispute that they are Parsis and governed by the provisions contained in Chapter III of Indian Succession Act, 1925. Two Revenue cases Nos. 74 (A-90). B-III of 63-64 (State v. T. C. Bajan Malguzari Accounts Katni) and 82 (A-90) III of 63-64 (State v. Bejonji) were started in respect of these 718-20 acres of lands by the Sub-Divisional Officer, Katni, who is the competent authority appointed under the Act. After the draft statements were prepared under Section 11, objections were preferred by the 2 daughters claiming their 1/10 share in the property left behind by Cowasji. The Competent Authority by his 2 separate orders dated 13-3-1967 disallowed the objections holding that the 2 daughters have failed to prove that they have any interest in the property and their objections are an afterthought so as to take out some lands out of the ceiling cases. Aggrieved by these orders, the 2 daughters filed separate suits, Dinoobai filed Civil Suit No. 27-A/67 and Dhanbai filed Civil Suit No. 28-A/67. In each suit the State of M. P., the mother, 3 brothers and the other sister were made defendants.
3. The plaintiffs' case is that after the death of Cowasji, under Chanter III of the Indian Succession Act the following persons inherited the property left behind by Cowasji to the extent shown hereunder:--
(i) Smt. Gulbai widow of Cowasji ... 1/5 share,
(ii) Timrasji s/o Cowasji. ... 1/5 share,
(iii) Bejanji s/o Cowasji. ... 1/5 share,
(iv) Dorabji s/o Cowasji. ... 1/5 share,
(v) Dhanbai d/o Cowasji. ... 1/10 share,
(vi) Dinoobai d/o Cowasji. ... 1/10 share.
However, for better management ofthe lands and for making necessaryimprovements, with the implied consent of all the holders, a partnershipof the four holders, namely Smt. Gulbai, Timrasji, Bejanji and Dorabji, wasformed and an area of 480.74 acreswas given to this partnership. Thesaid Firm was styled as 'T. C. BejanMalguzari Account' and in addition tothe four holders, Shri Kaikhusroo, uncle of Cowasji, was also made a partner on account of his experience andelderly age. It was decided that all the5 partners would be entitled to 1/5share in the partnership lands. So faras the remaining 237.46 acres of landswere concerned, they continued to remain joint though nominally recordedin single or joint names of the holders.These lands were never divided bymetes and bounds. Both the plaintiffsare entitled to 1/10 shares in the totalarea of 718.20 acres left behind byCowasji and their share has to beworked out of the remaining 237.46acres still remaining joint with thefamily. Each of the plaintiff is, therefore, entitled to hold 71.82 acres ofland, i.e. both together are entitled tohold 143.64 acres of land, out of 237.46acres of land, but the Competent Authority has overruled the claim of theplaintiffs. The order is contrary tolaw and is not based on any reasoning and is utterly superficial and,therefore, liable to be set aside.
4. The State of M. P. alone opposed the claims in these suits, the other defendants have supported the claims of the plaintiffs. The State submitted that the suits were not maintainable being barred by Section 11 (4) of the Act as there is no dispute regarding title of the plaintiffs and, therefore, the order of the Competent Authority has become final and conclusive and is binding on all the parties. The State contended that the 2 daughters not being partners in T. C. Bejan Malguzari Account, they have no claim in 480.74 acres of lands belonging to the firm. The only 5 partners i. e. Smt. Gulbai, Timrasji, Bajanji, Dorabji and Kaikhusroo alone have 1/5 share each in the lands belonging to the firm. Even in respect of the remaining lands area 237.46 acres, these lands were never recorded in the name of these 2 daughters. The remaining lands were recorded in the names of the widow and 3 sons, besides other lands were recorded in the individual names of these 4 persons. The plaintiffs never applied for correction of revenue records showing their interest in these lands. Since the plaintiffs are not holders of land under the Act, they are not entitled to any share therein. The Competent Authority has rightly rejected the objections raised by the 2 daughters. The plaintiffs should have paid ad-valorem court fees instead of seeking mere declaration.
5. The learned Additional District Judge by a common judgment has dismissed both these suits, but he has held that the suits are maintainable and the claims for mere declaration can lie and, therefore, proper Court-fees has been paid. However, on merits the learned trial Judge has held that the plaintiffs have failed to prove that late Cowasji owned 718.20 acres of lands at the time of his death and that each of the plaintiff is entitled to 1/10 share therein. Even if there is no specific denial on this question by the defendant-State, but since issues have been framed on this question the burden was on the plaintiffs to prove their title. The plaintiffs have not proved their title to these lands nor produced any document to show that Cowasji owned these lands. Both the plaintiffs have not entered the witness box. Their two brothers Dorawji (P. W. 2) and Temras Kawji (P. W. 3) appeared as their witnesses but they have no personal knowledge as to how all these lands were acquired by Cowasji. The plaintiffs have also not examined the uncle of their father Kaikhusroo who was the best person to throw light on this subject. Though the plaintiffs have got documentary evidence in support of their claims, those documents have not been produced. Clearly, therefore, the cases of these 2 plaintiffs are got up one in order to save some land from the Act. The impugned orders of the Competent Authority are, therefore, not erroneous.
6. First of all it will be proper to take the preliminary objections regarding competency of the suits and about the payment of court-fees. The learned trial Judge in his judgment has observed that these 2 questions were not pressed by the counsel for the State. This apart, there is no substance in the objections raised by the State. The relevant provisions are contained in Sub-sections (3), (4), and (5) of Section 11 of the Act which are as under:--
S. 11 (3) The draft statement shall be published at such place and in such manner as may be prescribed and a copy thereof shall be served on the holder or holders concerned, the creditors and all other persons interested in the land to which it relates. Any objection to the draft statement received within thirty days of the publication thereof shall be duly considered by the competent authority who after giving the objector an opportunity of being heard shall pass such order as it deems fit.
(4) If while considering the objections received under Sub-section (3) or otherwise, the competent authority finds that any question has arisen regarding the title of a particular holder and such question has not already been determined by a Court of competent jurisdiction, the competent authority shall proceed to enquire summarily into the merits of such question and pass such orders as it thinks fit:
Provided that if such question is already pending for decision before a competent Court, the competent authority shall await the decision of the Court. (5) The order of the competent authority under Sub-section (4) shall not be subject to appeal or revision, but any party may within three months from the date of such order, institute a suit in the Civil Court to have the order set aside, and the decision of such Court shall be binding on the competent authority, but subject to the resuit of such suit, if any, the order of the competent authority shall be final and conclusive.'
Clearly, in the 2 cases objections were filed by the plaintiffs claiming their 1/10 share in the lands owned by late Cowasji. The title of these 2 plaintiffs was very much in issue and was decided against them and, therefore, the order of the competent Authority has been rightly challenged in these 2 suits under sub-sec. (5). Since the only question to be decided by the Civil Court was about the title of the objectors the plaintiffs have rightly filed suits for mere declaration of their title. It was not necessary to claim any other relief. The suits are, therefore, competent and proper court-fee has been paid.
7. Now regarding merits of the cases: The learned trial Judge misconstrued the pleadings and erroneously assumed that issues have been framed regarding title of late Cowasji and, therefore, the plaintiffs should have proved the title of Cowasji over 718.20 acres of lands. In para 3 (a) of the plaint it has been pleaded that 718.20 acres of lands were previsouly held by Cowasji who died in the year 1948. The parties being Parsis, his property was inherited by his widow, 3 sons and 2 daughters. In its reply the State in Para 2 (a) stated that the allegations in para 3 (a) are not admitted as the answering defendant has no knowledge about it. This denial for want of knowledge amounts to an admission. The Supreme Court in Jahuri Sab v. D. P. Jhunjhunwala, AIR 1967 SC 109 at p. 111 has held:--
'Facts taken to be admitted -- Denial of facts -- To say that defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of fact, not even an implied denial.'
There being no specific denial, it has to be taken that the defendant-State has admitted that Cowasji owned 718.20 acres of lands at the time of his death. The issues framed in the case have been quoted in para 7 of the judgment. It may be mentioned that there is no issue framed regarding title of Cowasji over 718.20 acres of lands. The only issue on the question of title is whether each of the plaintiff inherited 71.82 acres as her 1/10 share. There being no issue, proviso to Order 8 Rule 5 C. P. C. has no application. The parties being Parsis they are governed by Chapter III of the Indian Succession Act. Under Section 51 the property of a male Parsi dying intestate shall be divided amongst his widow and children so that the share of each son and widow shall be double the share of each daughter. Cowasji left behind his widow, 3 sons and 2 daughters. The 2 daughters together would get a share equal to that of their mother or brother, i. e. each of the daughters inherited 1/10 share in the property left behind by Cowasji. On the death of Cowasji, the title of the 2 daughters vested in the property left behind by him to the extent of 1/10 share each. Mere fact that the plaintiffs took no step to get their names mutated or made any demand from other heirs to separate their shares can have no effect on their title. The other heirs have supported the case of the plaintiffs and they never asserted any hostile title to the exclusion of these 2 daughters.
8. Even otherwise also the plaintiffs have duly proved that late Cowasji owned 718.20 acres of lands at the time of his death. The plaintiffs have produced 8 title deeds which have been duly proved under Ex. P, 5 which is a relinquishment deed dated 10-6-1937 Cowasji acquired 69.73 acres of land. Under sale-deed, Ex. P. 6, dated 12-3-1934 Cowasji purchased 27.94 acres of land. Under sale-deed, Ex. P. 7, dated 3-1-1931 Cowasji purchased 19.65 acres of land. Similarly, under sale-deed, Ex. P-8, dated 3-8-1931 he acquired 19.65 acres of land. Under sale-deed, Ex. P.9, dated 14-2-1933 he purchased 1.40 acres of land. Under sale-deed, Ex. P. 10, dated 27-10-1931 Cowasji purchased 2.09 acres of land. Under sale-deed, Ex. P.11, dated 16-8-1929 he purchased 24.62 acres of land. Under sale-deed, Ex. P.13, dated 30-4-1938 Cowasji acquired 0.80 acre of land. Ex. P.13 has been proved by Janki Prasad (P. W. 6) who is one ol the transferors. In respect of the other title deeds Jagmohan Prasad (P. W. 5} and Janki Prasad (P. W. 6) have deposed that the executors and attesting witnesses of these documents are either dead or they are not traceable. Chintaman Singh (P. W. 4) has proved that the documents Exs. P.5 to p. 9 have been executed by his father Muratsingh, who is dead. He has also stated that documents Exs. P. 10 & P. 11 have been executed by Darbarilal, a friend of his father, who is also dead. The signature of Darbarilal has also been proved by Janki Prasad (P. W. 6) in Ex. P. 7 Dadulal (P. W. 7) has proved Ex. P. 5 in which he is an attesting witness. It is true that none- of the plaintiffs has entered the witness box but they have examined their brothers Dorawaji (P. W, 2) and Temras Kawji (P. W. 3). When their brothers have been examined, it was not necessary for the plaintiffs to enter the witness box and no adverse inference could have been drawn. Similarly, the trial Judge was not justified in drawing an adverse inference for non-examination of Kaikhusroo, uncle of Cowasji. Both Dorawaji and Temras Kawji (P. Ws. 2 & 3) have stated on oath that their father Cowasji owned 718.20 acres of lands at the time of his death. Some of the lands were purchased by their father in the names of his sons but he remained the owner of all these lands. This fact has not been controverted nor the defendant-State has led any evidence to the contrary. In fact, no witness has been examined on behalf of the defendant-State. So even if 8 title deeds do not cover the entire land of area 718.20 acres, still in view of the categorical statement of the plaintiffs' two witnesses coupled with the non-denial of the pleading on this point by the State, it has to be held that late Cowasji held 718.20 acres of lands. After his death, his legal heirs gave 480.74 acres of land to the partnership firm T. C. Bejan Malguzari Account in which the widow, 3 sons and uncle of Cowasji, Kaikhusroo had 1/5 share each. This position has been accepted by the Competent Authority in his impugned order. So 237.46 acres of land remained in balance with the joint family out of which each of the plaintiff is entitled to 1/10 share each i.e. 71.82 acres.
9. The appeals are, therefore, allowed with costs throughout, the judgments and decrees passed in Civil Suit Nos. 27-A and 28-A of 1967 are set aside and it is declared that each of the plaintiff has got 1/10 share out of 718.20 acres of lands left behind by late Cowasji and each of the plaintiff is entitled to 71.82 acres of land out of 237.46 acres of land which is in joint possession of the family. Consequently, the impugned orders dated 13-3-1967 in Revenue Case Nos 74 (A-90) B-III of 63-64 and 82 (A-90) III of 63-64 are set aside and the Competent Authority is directed to decide these cases afresh in the light of this judgment. Counsel's fee as per schedule, if certified.