Amar Singh & Anr. v. Asstt. Director of Consolidation & Ors.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2791 of 1988. From the Judgment and Order dated 28.1.1986 of the Allahabad High Court in Civil WFit·Petition No. 9502 of 1980.· Satish Chandra and D.K. Garg for the Appellants.- 'Mahabir Singh, N.S. Malik.and ·P.D. Sharma ·for the Respondents. The Judgment of the Court was· delivered by SHARMA, J. The question involved in this case is whether a Bhumidhar with transferable rights while bequeathing his Bhumidhari right in favour of certain beneficiaries can subject it to a life estate in : G favour of another beneficiary, and if he is held to be so authorised, whether the interest of the life estate holder shall continue to be" a life estate or shall get enlarged defeating the bequest in favour of the other beneficiaries. 2. The Bhumidhar of the. disputed land Chukkhan executed a . H [1988] Supp. 2 S.C.R. A will directing that life esta.te will tie vested in his wife Mst.

Gilia and the vested remainder in their daughters-present respondent nos. 6 & 7. Smt. Gilia entered in possession of the land on Chukkhan's death and executed a will in favour of the present petitioners. On her death a dispute arose in a proceeding under the Consolidation of Holdings Act as to whether the petitioners should be recognised as Bhumidhars or B the respondent nos. 6 & 7. The Consolidation Officer, respondent no. 3 herein, accepted the claim of the respondents nos. 6 & 7 but the decisiqn was reversed in appeal by the Settlement Officer. The matter was, thereafter, taken in revision before the Assistant Director of Consolidatioq., respondent no. 1 who agreed with the Consolidation Offi'cer and ~l:storerl his order. The petitioners challenged this judge men\ by a writ' applic~tion under Article 226 of the Constitution before the ~llahabad Higj:i Court. By the impugned decision the writ application ~as been dismissed. Special leave is granted. 3.

The question for decision has been inaccurately formulated in the Special Leave Petition as to whether the provisions of the Hindu D Succession Act or any other personal law can over-ride the provisions of the U .P. Zamindari Abolition & Land Reforms Act, 1951 (hereinafter referred to.as 'the Act'). 4. Mr. Satish Chandra, the learned counsel for the appellants contended that the Act has by section 171 laid down the rule of succes- IE sion and it is not permissible to apply any other law for determining the heirship to a Bhumidhar. Reliance was placed on Ramji Dix it & Anr. v. Bhrigunath & Ors., [196,8] 2 SCR 767 and Prema Devi v. Jt. Director, Consolidation, AIR 1970 Allahabad 238. The learned counsel placed the scheme of the Act before us for showing that the personal law applicable to a Bhumidhar must be held to be excluded by the provisions of the Act dealing with succession exhaustively.

Our attention was drawn to the provisions of sections 155 & 156 restricting ihe right to create a mortgage or lease and it was contended that Bhumidhari right is not consistent with limited interest therein and whenever such a right vests in a person he becomes the absolute owner and any attempt to limit his interest must be repelled. We do not find any substance in the argument. 5. The main fallacy in the stand taken on behalf of the appellants is in assuming that Mst. Gilia got the limited interest of a Hindu widow as recognised under the Hindu Law. What was bequeathed by her husband was a life estate as understood under the English Law. The H, holder ofa Hindu widow's estate is not a limited owner in that sense- AMAR SINGH v. ASSTI. DIRECTOR OF CONSOLIDATION [SHARMA, J.) 527 she is the owner of the property subject to certain restrictions on alienation. The whole estate is for the time vested-in her, and she ·represents· it completely (see Moniram Kolita v. Keerry Kolitany 7 Indian Appeals 115).

As observed by the Privy Council in Janaki. Ammal v. Narayanasami Aiyer, [1916) 43 Indian Appeals 207, her tjght is of the nature of a rightof properly, her position is that of an owner and so long as she is alive no one has any vested interest in the succession. That is not the position here. Mst. Gilia did not enter into Q~sses­ sion as an heir. She got the land under a will. The right of a Bhumidhar with transferable rights to bequeath his holding or any part thereo~ by a wiil Is expressly recognised by section 169(1) of the Act. It is manifest that in the present case the petson!il law applicable to Chukkhan and his wife does not come in the pictuue at all. So· far sections, 155 & 156 _are concerned they are confined to cases of mortgage and lease and are not relevant in the present context. 6, The dedsion in Rainji Dixit & Anr. v. Bhrigunath & Ors. (supra) has no application in the present case.

In· that case, on the death of the owner of the land ;Raf:Kishore, the lands devolved upon his wife Sanwari as a Hindu wicfow's estate and a dispute arose about her right of alienation. In tlie Allahabad case also Smt. Prema Devi whose title was in dispute acquired certain-right in the capacity of· a Hindu widow. The cases ate therefore clearly distinguishable. 7. The case of Batbhadra v. Board of Revenue, [ 198 li Allahabad' Law Journal 781 was similar to the present-case and the view taken by the learned Single Judge there, appears t<:>.be correct. Accordingly, we find no merit in.this appeal which is dismissed with costs. P.S.S. Appeal dismissed. · F