S.H. Sheth, J.
1. The plaintiff filed the present suit for the declaration of her title to the suit properties which consist of a house and an agricultural land situate at Porbandar. She also prayed for possession. The plaintiff made her claim on the following allegations.
2. The suit properties originally belonged to her brother Arjan Laxman. Arjan Laxman died long before 1933 A. D. leaving behind him his widow Rudi who died in 1945. Manki, the daughter of Arjan Laxman and Rudi, succeeded to the estate. She died in 1969 without leaving any children. Her husband is the defendant. In other words, the rival claimants to the suit properties are Arian Laxman's sister on one hand and his son-in-law on the other hand.
3. On 23rd Oct. 1933, Rudi, the widow of Arjan Lamnan, made a will Ex. 26. By that will, she provided that on her death, the suit properties would devolve upon Manki and upon Manki's death, they would devolve upon her children and, if she left no children, surviving her, they would devolve upon her husband, the present defendant. Manki died on 28th Feb. 1969. She was survived by her husband who obtained Letters of Administration on 12th of Nov. 1969. The plaintiff claims the properties on the ground that she is the sole surviving heir of Arjan. She also contended that defendant was not the husband of Manki.
4. The defendant contended in defence that plaintiff was not the sister of Arjan Laxman. He pleaded in support of his claim the will executed by Bai Rudi Ex. 26. The learned trial Judge held that plaintiff was the sister of Arjan and that the defendant was Arjan's son-in-law or Bai Manki's husband. He believed the will and gave effect to the testamentary succession. Therefore, he dismissed the suit.
5. The plaintiff appealed against that decree to the District Court. The learned appellate Judge confirmed the findings that the plaintiff was the sister of Arjan and that the defendant was the son-in-law of Arjan. However, he held that Rudi, the widow of Arjan, had only 'widow's estate' in the suit properties and that, therefore, the will made by her was ineffective. He also held that upon her death, the property reverted to the plaintiff. He, therefore, allowed the appeal and passed decree in favour of the plaintiff.
6. It is that appellate decree which is challenged by the defendants heirs in this second appeal.
7. Before we deal with the contention which has been raised by Mr.Nanavaty on behalf of the defendants, it is necessary to note a few facts about which there is no dispute. The original owner of the property Arian Laxman died earlier than 1933 leaving behind him his widow Rudi and his daughter Manki. Rudi made her will in 1933. She died in 1945. Thereafter Manki entered into possession of the suit properties. She died in 1969. Mr. Nanavaty has contended that under the Land Revenue Code of the former Porbandar State Manki had become the sole and absolute owner of the suit properties in her own right and that, therefore, the defendant, her husband, alone could succeed to those properties. He has invited our attention to three sections of the Porbandar State Land Revenue Code. They are 58, 60 and 64. Section 58, inter alia, provided that if a 'Khatedar' continued without default to pay the land revenue, he would go on enjoying the rights in the land until the time specified, if there was any. It further provided that if there was no time specified during which he could hold the land, he, his heirs and successors would go on enjoying those rights in perpetuity. It further provided that if such a 'Khatedar' was survived by a widow only, the widow would enjoy the rights in the land during her lifetime or until she remarried. Section 58, inter alia, recognized the right of a 'Khatedar' to enjoy an agricultural land in perpetuity if he committed no default in payment of land revenue. It did not deal with the conflicting claims made by rival persons to the succession to the land upon the death of the original holder.
8. Section 60 provided that in case 'of death of a 'Khatedar', his heirs should make an application within six months according to the procedure prescribed by that section. An enquiry would be made by the Mamlatdar into his claim and an appropriate order in the matter of mutation would be made. It further provided that if no such application was made within six months, the land would be liable to be resumed by the State. The second paragraph of S. 60 throws a considerable light upon the controversy which has been raised before us. It provided that the heir of a deceased 'Khatedar' would have no right other than the right of having his name entered in respect of the land in question. Section 60, therefore, clearly laid down that what the State did was to effect a mutation entry and the rights of the 'Khatedar' were recognized to that extent and no more.
9. Section 64, inter alia, provided that the rights of a 'khatedar' were the rights of all the coparceners in the joint family properties. In the case of the death of a coparcener, they would go to his widow who had the means to cultivate the land. It further provided that so long as the land was not partitioned, the heirs would not be recognized to have been separated from each other in estate. It next provided that sharing the produce and establishing separate kitchen would not bring about separation of the joint family properties.
10. Mr. Nanavaty has argued that these rules recognized the succession to agricultural estate of a 'Khatedar'. We are unable to uphold that argument of Mr. Nanavaty.
11. Nothing has been shown to us from the Land Revenue Code of Porbandar State which dealt with conflicting claims of succession to an agricultural land by rival claimants. The Land Revenue Code recognized only the relationship between the State and the holder of the land. It did not deal with conflicting claims made by rival claimants to the devolution of the properties upon the death of the original holder. Secondly nothing has been shown to us from the Land Revenue Code of Porbandar State which shows that its provisions supplanted the provisions of Hindu Law of Succession or had overriding effect upon them. What the Land Revenue Code did was to establish and regulate the relationship between the State on one hand and the holder of the land on the other hand and to ensure systematic and regular collection of land revenue. It is erroneous to think that the Land Revenue Code of Porbandar, State laid down rules of inheritance or regulated succession to the estate of a holder of an agricultural land upon his death. The test in such a case is this. If the holder of a land died and if two persons laid conflicting claims to his estate and if the State recognized one of them for the purposes of Land Revenue Code and if another filed a civil suit and obtained a decree in his favour, would the decree in the civil suit be given effect to in preference to what was recognized under the Land Revenue Code? Mr. Nanavaty has not been able to show us anything from which we can come to the conclusion that what the State recognized for the purpose of Land Revenue Code could not be set at naught by the decree of the Civil Court. Therefore, it can never be said that the recognition accorded by the State to a particular person in the matter of the inheritance of agricultural lands destroyed or negatived the rights of others who made a rival claim to it and whose contention would be the. subject-matter of a civil suit
12. In this connection Mr. Nanavaty has invited our attention to the referring judgment recorded in Second Appeal No. 122 of 1967 by a Division Bench of this Court of which I was a member dated 18th and 19th Nov. 1970. The observations made in that referring judgment do not have the binding value because, by that referring judgment, two questions were referred to the Full Bench. Those two questions remained undecided because before the Full Bench could decide those two questions, the appeal abated, Tentative observations made by Division Bench in a referring judgment which is not final and conclusive cannot, and do not have any binding value. Therefore, we are unable to make any use of the observations made in that judgment. Secondly, that judgment cannot be marshalled by Mr. Nanavaty to his aid because the subject-matter of that interim judgment was the Land Revenue Code of Junagadh State and not the Land Revenue Code of Porbandar State. Para. 2 of that interim judgment shows that the Division Bench had assumed that succession to agricultural land in Jungagadh State was governed by the Junagadh State Land Revenue Code and not by the personal law of the parties. We have examined three sections of Porbandar State Land Revenue Code to which Mr. Nanavaty has invited our attention and we find no justification whatsoever for making the assumption which the Division Bench in that judgment made in relation to Junagadh State Land Revenue Code. In fact, the material expression used in Junagadh State Land Revenue Code which is in the form of a non obstante clause does not find place in the Porbandar State Land Revenue Code. The non obstante clause in the Junagadh State Land Revenue Code laid down:
''................notwithstanding anything contained in any local law or any practice or rule of the caste.'
The interim judgment framed two questions resulting from the conflict between two judgments of the High Court of Bombay at Rajkot in First Appeal No. 109 of 1956 decided by Mr. JudKoe D. V. Vyas and Mr. Justice D. V. Patel on 28th Jan. 1958 and Second Appeal No 119 of 1957 decided by Mr. Justice Vyas on Jan. 8, 1958. In order to complete the narrative we may state that the two questions which were framed in that referring judgment were as follows:
'(1) Upon conferment of occupancy rights on the existing holders (including widows) was the estate, inherited by widow from her husband, merely enlarged or was an independent right conferred upon her?
(2) What is the line of succession to the occupancy rights conferred on her ?'
After having analysed the provisions of the Porbandar State Land Revenue Code, we are of the opinion that these two questions do not arise in the instant case.
13. Mr. Nanavaty has further tried to argue that with the introduction and application of the Bombay 4 Land Revenue Code to the State of Saurashtra, independent rights were conferred upon Bai Man1ii in 1950 when she was in possession of the land after the death of her mother Bai Rudi in 1945. The notification dated Ist March 1950 read as follows:
' ... ... ... ... The Government of Saurashtra has been pleased to order that occupancy rights as provided for in the Bombay Land Revenue Code 1879, as adapted and applied to Saurashtra, be conferred upon the existing holders of the Khalsa lands without charging any price with effect from the date the said Code has come into force in Saurashtra.'
The conferment of occupancy rights upon the holders of the lands was an act of establishing permanently the relationship between the State on one -hand and the holders of the land on the other hand. It was meant for the Purpose of the Land Revenue Code, That notification did not and could not decide rival claims to succession between rival claimants. It is, therefore, wrong to contend that what was done by that notification had the wider effect of destroying the claims of a rival claimant if he had any and finally and irrevocably recognizing or conferring them upon one of them The attempt which. Mr. Nanavaty has made. To bring into play the Provisions of the Porbandar State Laud Revenue Codeis, in our opinion, thoroughly misconceived. The Code has nothing to do with law of succession. It does not lay down the rules of succession nor does it decide conflicting claims of the rival claimants to the estate of a deceased holder of a land.
14. Now, Arjan, the original owner of the property, died before 1933, Under the Hindu Law, his widow, Rudi got 'the widow-s estate'. She could not get anything more. She died in 1945 before the Hindu Succession Act came into force in 1956. Obviously, therefore, she could not have executed the will and tried to bring about the testamentary disposition of the Properties. The will must, therefore, fail. The property was bound to revert to her husband's heirs. The suit Property upon her death reverted to Manki who was the only heir of her father. This takes us to the examination of the estate which Manki inherited and the course of its devolution upon her (Manki's) death.
15. Manki inherited it in 1945 when Rudi died. Para 13 in Sir Dinshaw Mulla's Hindu Law, 14th Edition, states that in Bombay State the daughter as the heir of her father took father's property. Elsewhere she took a 'woman estate', with rights of survivorship. Now since we have held that the will executed by Rudi was ineffective, Manki succeeded to the estate of her father, not by virtue of the will of Bai Rudi but as on intestacy and took absolute interest therein. In 1956 Hindu Succession Act was enacted. She died in, 1969r. See. 15 Of the Hindu Succession Act, 1956 lays down general rules of succession in case, of female Hindus. Since Manki inherited the property from her father, upon her death, succession to her estate was governed by subsec (2) of S. 15 and not by subsection (1). Clause (a) of sub-section (2) of Section 15 provides as follows:
'(2) Notwithstanding anything contained in sub-see. (I):-
(a) any property inherited by a famale Hindu. from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the, children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father.'
It is, therefore, clear that though she took absolute interest in the property of her father when she succeeded in 1945uponthe death of her mother Rudi whatever was left in her hands at the time of her death, devolved not upon her heirs, but upon the heirs of her father, as whose heir she had inherited in 1945. That renders it necessary, for us to determine who in 1969 was the heir of her father.
16. Section 8 lays down general rules of succession in the case of males. The Schedule specifies two classes of heirs. There was under Class I no heir to her father. We have therefore, got to go to Class TI. Amongst the heirs of her father specified in class 11 her father's sister was the only heir. She is the plaintiff in this case. It is clear therefore that in 1969 when Manki died, the plaintiff, her father's sister, was the only heir of her father to whose property she could succeed. Obviously, therefore, the defendant who is Manki's husband did not have any devolutionary interest in the property of Manki's father.
17. Mr. Nanavaty has argued that the suit property belonged to Manki in her own, right. Therefore, upon her death, her husband would succeed to the estate as laid down in clause (a) of sub-sec, (1) of S. 15 of the Hindu Succession Act, 1-956. This argument is based upon the assumption that with the application of the Bombay Land Revenue Code to the State of Saurashtra and the recognition of her rights in the suit lands, she came to be the sole and exclusive owner of the property in her own right and that her rights had no relationship whatsoever with her father's rights. We have already stated that Land Revenue Code regulates the relationship between the State and the holder of the land and does not determine conflicting claims to succession by rival claimants. Therefore, we are unable to read in the recognition of Marik's rights to the suit land by the State of Saurashtra anything which is derogatory to the plaintiff's claim or to conflicting claims to inheritance by rival claimants under Hindu 'Succession Act, 1956. The learned appellate, Judge was, therefore, justified in passing the decree in favour of the plaintiff. We see no infirmity whatsoever therein.
18. The appeal, therefore, fails and is dismissed with costs.
19. Appeal dismissed.