M.G. Mukherjee, J.@mdashThe predecessor-in-interest of the petitioners, one Khudi Sheikh was admittedly; the bargadar against whom a
proceeding u/s 18(1) (a) and 18(2) of the Land Reforms Act was filed by the predecessor-in-title of private respondents viz, Siddique Hoasain,
Farooque Hossain, Raosan Adjani and Abul Kalam Azad, claiming owners'' share of bhag produce for the years 1386 & 1387 B.S. amounting to
Rs. 12658/15/6 in respect of ka Schedule properties. They also prayed that the names of the petitioners nos. 1 to 4 be deleted from the category
of bargadars in respect of the lands under schedule and the deceased Khudi Sheikh be treated as bargadar in respects thereof. The case of the
private respondents before the Trial authority, i.e. the Bhagchas Officer under Sub-section (1) of Section 18 of the West Bengal Land Reforms.
Act had been that Khudi Sheikh who had been a bargadar under them, assigned his interest in favour of his four sons who claimed to have
partitioned the lands in between themselves though such bargadar''s interest was neither assignable nor partible. That apart the four sons of Khudi
Sheikh got their names collusive and surreptitiously recorded as bargadars exparte without notice to the private respondents in Operation barga,
though each brother was claiming a different portion of the original land cultivated by their father Khudi Sheikh. Their case further was that they
provided manure and seeds and hence they were entitled as owners to 50% of the porduce in their share. The case was registered as Case No. 5
of 1980-81. The case was contested by the said Khudi Sheikh as also the petitioners nos. 1 to 4. After recording the deposition of some of the
witnesses, on 30.7.81 the trial authority held inter alia that the land was cultivated by Khodabaksh Sheikh alia Khudi Sheikh till his death in April,
1981. His sons (petitioners nos. 1 to 4) had been helping their father to cultivate the suit land. Their names were recorded as bargadars on
misrepresentation so as to avoid future litigation apprehending.trouble after the death of their father. The petitioner no. 4 was a minor at the time of
recording his name as bargadar. He ordered a fresh recording cancelling the previous recording. Regarding delivery of produce, he held that the
respondents were entitled to owners'' share of the produce for 1386 & 1387 B.S. But he directed the assessment to be made on report of
concerned B.D.O. He also called for the local market price of the crops and asked the Block Tahsildar for assessment of production as well as
market price of the crops. On 17.9.81 the said report of Block Tahsildar was submitted. A. D. M. (L. R.) intervened into the matter. At this stage,
as per Memo dated 20.8.81 he sent the file to J. L. R. O. Murshidabad L. R. Cricle. On 19.10.81 the owners i.e. the private respondents
informed the Officer concerned trying the matter, to whom the case stood transferred, that Khudi Sheikh died in April 1981 and beside his four
sons, who were already on record, some more heirs and legal representatives were to be added as parties defendants to whom notices are to be
served. On 7.11.81 after due notices were served and the petitioners were duly represented, the matter was adjourned to 16.11.81 for judgment
and order. It is indeed true that none of the heirs and legal representatives of Khudi Sheikh, the erstwhile bargadar came with any application
within the meaning of Section 15A of the Land Reforms Act for determination of any one of them as bargadar in the place and stead of the
deceased Khudi Sheikh. However evert bereft of such an application, when an application for substitution was filed before the trial authority with a
prayer for addition of other heirs and legal representatives as parties defendant to the said proceeding, even if some contrary pleadings were taken
up by some of the sons of deceased Khudi Sheikh that they were bargadars bereft of their status as sons of Khudi Sheikh, it was the duty of the
Officer concerned to intervene in the matter and apprise all the heirs and legal representatives of the deceased bargadar about their legal rights to
choose one of them as the successor to Khudi Sheikh as a bargadar in respect of the suit land. It should never be forgotten that this case has some
peculiar features of its own, where the owners themselves admitted Khudi Sheikh as bargadar and Khudi Sheikh did net disclaim his status as
such, though some of his sons, being impleaded in the proceeding, might have taken a stand contrary to that of the father. That apart, the Officer
concerned has also the power, independent of an application, to choose and select one of the heirs and legal representatives of Khudi Sheikh as
the legal representative of the deceased Bargadar to step into his shoes as successor to the bargadar. The attitude taken by the Officer concerned
that in the absence of any application, the interests of bargadar would go by default; though the heirs as such would be liable to pay the alleged
liability of the deceased Khudi Sheikh seems to be opposed to the spirit of law in a social we if are state like ours. Law is well-settled that if an heir
does not get the property of the person whom he inherits, he cannot be called upon to pay the debts and obligations of the deceased. The parties
not being Hindus, the theory of moral obligation of every Hindu to pay off the debt of the deceased father also is not applicable.
2. The trial authority by judgment and order dated 16.11.81 held all the heirs and legal representative liable for owner''s share of produce for 1386
& 1387 B. S. assessed at Rs. 948671 in four equal annual instalments., the first of which shall be paid on or before 1st January 1982. He also held
that the petitioners nos. 1 to 4 (respondents O. Ps. nos. 2 to 5 in the said proceeding) be hot determined bargadars u/s 18(2) of the West Bengal
Land Reforms Act. He however granted the liberty to the heirs of the owners of the land whose land the deceased bargadar Khudi Sheikh
cultivated to file application before the authority u/s 18(1) of the West Bengal Land Reforms Act for nominating one of the heirs of the deceased
bargadar under Rule 2A(2) of the West Bengal Land Reforms Rules 1956. He however acted illegally and with material irregularity and failed to
exercise a jurisdiction vested in him by law in not deciding for himself with due notice to all the heirs and legal representatives of Khudi Sheikh,
who were all before him, to determine who amongst them should be chosen as the successor to the deceased bargadar Khudi Sheikh u/s 15A(2)
of the Land Reforms Act 1956. However this judgment was affirmed on appeal by the appellate authority i.e. Deputy Magistrate & Deputy
Collector, Lalbagh, Murshidabad by his judgment and order dated 28.6.84 with a modification of the amount payable by the petitioners as heirs
and legal representatives of Khudi Sheikh., deceased. The appellate officer held that unless plough and cattle were supplied along with seed and
manure, the owners were not entitled to 50% of the produce and he restricted the claim of the owners to 25% of the produce in respect of the
crops for 1386 and 1387 B. S. which came to a total amount of Rs. 511126.
3. I have seen the reasoning that weighed with the appellate authority as regards the lack of jurisdiction of the Bhagchas Officer to entertain an
application for correction of entires in the record of rights but he averted the issue by holding inter alia that it the said question did crop up while
deciding other issues, he could validly determine the same in a legal manner. This Court has time and again held that only a finally published record
of rights has a statutory presumption in the eye of law. If the records are finally published, every aggrieved party who feels prejudicially affected
thereby, can pursue the course of action determined by Chapter VII of the Land Reforms Act by adopting the procedure as envisaged by Rules
22 to 29 of the West Bengal Land Reforms Rules. There is no statutory clothing to the procedure called Operation Barga and certificates granted
in favour of the petitioners nos. 1 to 4 in this regard called Barga Certificates have also no statutory recognition. However just because the
petitioners were armed with such certificates as weapons of defence, and claimed to have an independent status bereft of that of a succession to
their father, the Bhagchas Officer being the Trial authority should not have failed to exercise a jurisdiction otherwise vested in him by law to decide,
on the basis of his own finding that Khudi Sheikh was a bargadar in respect of the disputed, lands, as to who amongst the heirs, in view of the
claim by each of the petitioners nos. 1 to 4 to be a bargadar, was lawfully entitled to come into the place of the deceased bargadar,under Section
15A of the Land Reforms Act. It was incumbent on the part of the said Appellate Authority to intervene into this question when the trial authority
granted only an opportunity to the heirs of the original owners to have the same determined but did not grant such an opportunity to the heirs and
legal representatives of Khudi Sheikh inter semore so when all of them were before him in the proceeding impugned.
4. The proviso to sub-section (1) of Section 15A of the West Bengal Land Reforms Act makes it clear that whore the lawful heirs of the bargadars
omit or fail to make determination as required by sub-section (1), the officer or authority appointed under sub-section (1) of Section 18 may
nominate one of the lawful heirs of the bargadar, who is in a position to cultivate the laid personaly, to continue the Cultivation thereof. Sub-section
(2) to Section 15A stipulates that the lawful heir of the bargadar, who is determined or nominated for the cultivation of the land, shall cultivate the
land-subject to such terms and conditions as may be prescribed. Hence it was indeed duty of the trial authority who was vested with jurisdiction in
this regard to make a determination within the meaning of Proviso to Sub-section (1) to Section 15A to nominate one of the lawful heirs of the
deceased bargadar, Khudi Sheikh who was in a position to cultivate the land personally, so as to continue cultivation thereof.
5. Though in sub-section (3) to Section 15A it is provided inter alia that where the officer or authority appointed under Sub-section (1) of Section
18 also omits or fails to nominate, within the prescribed period, any lawful heir of the deceased bargadar for the continuation of the cultivation of
land and the lawful heirs of the bargadar themselves also fail to determine the heirs by whom cultivation of the land will be continued, cultivation of
the land may be continued by such persons, whether an heir of the deceased bargadar or not, as may be nominated by the persons whose land
was cultivated by the deceased bargadar. That has also not been done in the instant case. In that view, of the matter a remand to the trial authority
on this score alone is justified in the circumstances.
6. Both the trial authority as well as the appellate authority on a sifting of the evidence reached a concurrent finding as to non-delivery of the
owner''s share of produce for 1386 B. S. As regards the year 1387 B. S. is concerned the factum of non-delivery was more or less admitted
before the authorities below.'' I do not find any cogent reason for interference in respect of the finding of fact as arrived at by both the authorities
below in this regard and I affirm the finding of the appellate authority that the total due from the petitioners is to the tune of Rs. 5111|2o''. A sum of
Rs. 3000[- has already been paid by the petitioners pursuant to my orders dated 23.8.84 and 8.3.85. I grant liberty to such of the petitioners who
will be nominated u/s 15A of the Act, to pay off the balance amount of Rs. 211126 in two yearly instalments of Rs. 105563 each, to be payable
by 1st January, 1986 and'' 1st January, 1987 respectively.
7. For ends of justice let a writ in the nature of Mandamus issue calling upon the State respondents to decide through the Bhagchas Officer
competent in this regard, as to who amongst the heirs and legal representatives of Khudi. Sheikh should be determined as a bargadar in place of
the deceased Bargadar, Khudi Sheikh, upon notice to all of them. Only if they disclaim their rights in this regard, that the authority below would be
competent to hold that none of the heirs being interested, the owners are to treat the lands as without any bargadar and would otherwise be free to
make their own arrangements accordingly. Let such a determination be done within a period of two months from today. On this limited point alone,
there should be remand.
8. I must make it clear that pursuant to my orders dated 23.8.85 and 8.3.85 the petitioners have already deposited a sum of Rs. 3000/- out of
total dues of Rs. 5111|26. I gave liberty to the respondents nos. 5 to 11 to withdraw the said amount deposited by the petitioners without
prejudice to the rights and contentions of the parties. I am however of the further view that in case the petitioners, despite being held to be the heirs
of the deceased bargadar Khudi Sheikh are found not to have actually inherited any of the properties of the said Khudi Sheikh besides the barga
land, they have no liability under the law to repay the amount found due. Without deciding such objections which could be raised by the heirs and
legal representatives of the deceased Khudi Sheikh at the time of execution of the amount under award, I make it clear that if any one of the heirs
be nominated under 15A of the Act he should on such an event, be liable for the amount under award. This is in consonance with doctrine that an
heir of a deceased bebtor is not bound to repay debts of the deceased if he can show to the satisfaction of the court or quasi-judicial authority that
he has not inherited any property from the deceased, but he would be so liable in the event he succeeds to any property including the barga interest
of the deceased. With such observations as made hereinbefore the Rule is made absolute in part. Let appropriate writ in the nature of Mandamus
and or Certiorari issue accordingly. There will be no order as to costs.
