Allahabad High Court
Gulab Singh And Others vs D.D.C. And Others on 6 February, 2020
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Reserved Court No. - 9 Case :- WRIT - B No. - 20306 of 2004 Petitioner :- Gulab Singh And Others Respondent :- D.D.C. And Others Counsel for Petitioner :- Pankaj Tripathi,H.S.N. Tripathi,R.K. Ojha,Ramesh Chandra Singh,Vinod Kumar Singh Counsel for Respondent :- C.S.C.,A.R. Dubey,Arvind Kumar Shukla,Chandan Sharma,Hari Shanker Mishra,Onkar Dutt Malviya,Shailendra Singh Hon'ble Anjani Kumar Mishra,J.
Heard Sri R.C. Singh for the petitioners. Respondents had been heard on the previous occasion.
The instant writ petition arises out of an objection under Section 9-A (2) filed by Naresh Bahadur Singh, respondent no.4, claiming co-tenancy to the extent of 1/4th share, on the ground that he was the daughter's son of Mst. Dashraja. It was the case in the objection that the land in dispute was ancestral acquisition of Bal Karan Singh, who had four sons and that Smt. Dasraja was widow of one of the four sons, namely, Bhanu Pratap Singh. Bhanu Pratap Singh left behind, apart from his widown, a daughter, Dittan and Naresh Bahadur Singh is the son of Dittan.
It appears that another objection was filed but the same appears to be of no consequence, in so far as this writ petition is concerned. Therefore, the same is not being adverted to.
In the basic year record, the land in issue was recorded in the name of Sita Saran, Gulab Singh and Birendra sons of Rudra Pratap and Kallu son of Ram Pratap.
The Consolidation Officer vide order dated 25.08.1982, allowed the objection of Naresh Bahadur regarding khata no.14 and 185 of village Mishirpur as also regarding khata no.5 of village Nagwari. It was however, rejected with regard to khata no.5 and 154 of village Mishirpur and regarding khata no.85 of village Nagwari.
The objector did not prefer any appeal.
However, four other appeals were filed, including an appeal by the petitioners. All the appeals are stated to have been dismissed vide order dated 23.01.1985. In so far as the appeal filed by the petitioners is concerned, the same was dismissed as not pressed by recording that the lawyer, Madsudan Dubey had made a statement that he had no instructions in the matter.
It is submitted that Madsudan Dubey was not Counsel for the petitioner. Therefore, a restoration application was filed which was dismissed, vide order dated 26.10.1985, by a wholly non-speaking order.
The petitioners thereafter, filed a revision which has been dismissed on merits vide order dated 06.04.2004. Hence this writ petition, challenging the impugned orders of the three courts below which grant co-tenancy to Naresh Bahardur Singh, respondent no.4, in two khatas of village Mishirpur and one khata of village Nagwari.
The submission of counsel for the petitioners is that it is admitted position that the tenancy of the land in dispute was a fixed rate tenancy. It is also contended that the dispute relates to the share of Bhanu Pratap, one of the four sons of Bal Karan Singh. Bhanu Pratap Singh died on 10.03.2026 and his widow Smt. Dasraji is alleged to have died in the year 1935. It is submitted that the date of death of Bhanu Pratap is material and that on that date, the Agra Tenancy Act was applicable. The observation to the contrary made in the order of the Deputy Director of Consolidation that the U.P. Tenancy Act was applicable is factually, incorrect.
He has referred to Section 12 of the Agra Tenancy Act, which defines a fixed rate tenancy and also provides that such tenancy is heritable and transferable and that succession to such land is to be governed by personal law. It is also submitted that under the provisions of the Agra Tenancy Act, succession is governed by Section 24 but therein, a fixed rate tenancy, is specifically excluded.
On the strength of the afore-noted, it is submitted that the widow of a fixed rate tenant would not inherit his share as per the personal law and in holding to the contrary, the courts below have committed manifest illegality. Therefore, the impugned orders are liable to be set aside to the extend they grant co-tenancy in favour of respondent no.4.
The contention of counsel for the respondent is that the dates of death of Bhanu Pratap and his widow are both incorrectly mentioned in the impugned orders. In so far as the widow is concerned, he submits that a supplementary affidavit has been filed mentioning therein that she died in the year 1944. He also submits that it is inconceivable that Bhanu Pratap died in the year 1926 because his daughter Dittan was born on 24.04.1928. A categorical finding has been recorded by the Consolidation Officer in this regard, relying upon the birth register extract as also statements of Jai Mangal and Dev Narayan, aged 85 and 87 years respectively.
Counsel for the respondent lastly submits that Section 35 of the U.P. Tenancy Act makes it clear that widow of a fixed date tenant will inherit his share and therefore, the orders impugned call for no interference.
In rejoinder the contention of Sri R.C. Singh, counsel for the petitioners is that his argument still remains the same and that a fixed date tenancy, even under the provisions of U.P. Tenancy Act, 1939, was heritable, but under personal law.
He has placed reliance upon the provisions contained in Sections 32, 33, 35 and 36 of the U.P. Tenancy Act in support of this contention.
I have considered the submissions made by counsel for the parties and perused the record.
With regard to the submissions above, it would be relevant to refer to the order of the Deputy Director of Consolidation, who, upon a consideration of the oral testimony on record has recorded a categorical finding on its basis that the case will have to be determined on the basis of provisions contained in the U.P. Tenancy Act and not the Agra Tenancy Act, because Bhanu Pratap and his wife both died after 1940, when the U.P. Tenancy Act, 1939 had already been enforced.
It is not in issue that Bhanu Pratap Singh was a fixed rate tenant. It is also not in dispute that rights of a fixed rate tenant were inherited as per personal law. This being the situation, the succession to the land in question would be governed by the provisions of Hindu Law.
It is relevant to state that for reasons given later, in this judgement, Bhanu Pratap Singh would be succeeded by his widow, succession being governed by personal law.
Since, the widow of Bhanu Pratap Singh, namely, Smt. Dasraji is stated to have died in 1940, the rights she inherited as a widow would be governed by the Hindu Women Rights to Property Act, namely, Act No.18 of 1937.
Subsection 3(3) of this Act, reads as follows :-
"........ any interest devolving upon a Hindu widow under the provisions of this Section shall be limited interest known as "Hindu woman's estate", provided however, that she shall have the same right of claiming partition as a male owner."
The fact that the interest of Smt. Dasraji was a mere life interest, necessarily means that on her death, succession to the land in question would be governed by general order of succession applicable to a Hindu, Bhanu Pratap being a Hindu.
Under the Mitakshara school, blood relatives or sapinds are of two types, namely, gotraja and bhinna gotra sapindas. Gotraja sapindas or agnates are those connected to a deceased through an unbroken line of male descent.
Section 37 of the Mullas' Hindu Law, 21st Edition, 2010, reads as follows -
"37. Gotraja sapindas and bhinna-gotra sapindas-(1) Mitakshara divides sapindas of blood relations into two classes, namely:
(a) gotraja sapindas, that is, spindas belonging to the same gotra or family as the deceased: and
(b) bhinna gotra sapindas, that is, sapindas belonging to a different gotra or family from the deceased."
Section 38 of Mullas' Hindu Law provides the classes of heirs - (1) There are three classes of heirs recognized by Mitakshara, namely :
(a) gotraja sapindas:
(b) samanodakas: and
(c) bandhus.
(2) The first class succeeds before the second, the second succeeds before the third.
Section 39 (iv) of Mulla's Hindu Law states that Gotraja Sapindas also include the wife, daughter & daughters' son for the purpose of succession.
The order of succession among sapindas is to be found in Section 43 and they are sons, grand (son's son) and great grand sons, widow, predeceased son's widow. The next category is the widow, followed by predeceased son's widow, daughter, daughters' son, Mother-father, brother and brother's.
The first three categories of heirs under Section 43 were, the sons, sons' son and son's son's son, the widow falling in the fourth category. After 14 April 1937, a widow was entitled to the same share as a son.
However, since Bhanu Pratap left behind no male lineal descendants i.e. sons, sons son's or son's son, he would be succeeded by his widow, either along with the sons after 14 April 1937, or as a widow being at serial no.4 in the order of succession before 14 April 1937 and much higher in the order of succession compared to a nephew or nephews son of Bhanu Pratap.
Under the circumstances, irrespective of the date on which, Bhanu Pratap died, it was his widow, Smt. Darraja who alone would succeed to his share. There is no dispute that Smt. Darraja held only a life interest and on her death, the succession would be governed again by the order of succession provided by Section 43, wherein a daughters son, being higher in order of succession would succeed as a reversioner, as compared to the nephew or nephews son of Bhanu Pratap, who is the case at hand, are the petitioners.
For the same reason, nothing turns upon whether the provisions of Agra Tenancy Act, or the U.P. Tenancy Act were applicable to the case because in both conditions succession to fixed rate tenancy land was in accordance with personal law.
The 4th category of successors under Section 43 is the widow, followed by daughters's and daughter's son. The daughter son is at Sl.No.6 in the order of succession while the brother and brother's son at Sl.Nos.9 and 10, respectively. Thus, a daughter son is higher in the order of succession as compared to either brother, brother's son or brother son's son. Therefore, the daughters' son, being higher in the order of succession, was liable to inherit to the exclusion of the petitioners, who are the brother's son or brother son's son. This is precisely what has been held by the impugned order, while granting co-tenancy to Naresh Bahadur Singh, daughters son of Bhanu Pratap Singh and Smt. Darraja.
For the same reason, the order impugned is perfectly justified and calls for no interference.
The writ petition is without merit and is accordingly, dismissed.
Order Date :- 6.2.2020 RKM