Allahabad High Court
Gokul Ram And Others vs Shiv Jokhan Singh And Others on 24 March, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD [AFR] Reserved Court No.32 Case :- SECOND APPEAL No. - 2019 of 1978 Appellant :- Gokul Ram And Others Respondent :- Shiv Jokhan Singh And Others Counsel for Appellant :- S.L. Yadav,P.K.Dubey,Prabhat Kumar,Siddharth Niranjan Counsel for Respondent :-Amish Kumar Srivastava,Manish Dev Singh Hon'ble Vivek Chaudhary,J.
1. Heard learned counsel for the appellants and learned counsel for the respondents.
2. Present second appeal is filed against the judgment and decree dated 18.4.1978 passed by the IVth Additional District Judge, Jaunpur in Civil Appeal No.8 of 1978 affirming the judgment and decree dated 10.12.1973 passed in Original Suit No.222 of 1970.
3. The facts of the case, in brief, are that Sri Deep Narain was Sir holder of an agricultural land. He died issue-less on 18.8.1950 and, hence, the property was inherited by his wife Mst. Phool Kumari. Though there was a dispute with regard to the date of death of Mst. Phool Kumari, as plaintiffs-respondents claimed that date of death is 12.8.1954 while the defendants-appellants claimed that date of death is after 10.10.1954, but both the courts have given finding of fact that she died on 12.8.1954. The said finding is on the basis of a substitution application filed after the death of Mst. Phool Kumari in an earlier proceeding before the High Court and, hence, is not disputed before this Court during course of arguments by the appellants.
4. Sri Deep Narain and Mst. Phool Kumari died issueless. Sri Deep Narain, late husband of Mst. Phool Kumar had three sisters, namely, Smt. Jai Raji, Smt. Subh Raji and Smt. Hub Raji. Two sons, namely, Shiv Jokhan and Faujdar were born of Smt. Jai Raji and her husband Raj Narain, Ram Samujh and Sumer Singh were born of Mst. Subh Raji and Hakim Singh was born of Mst. Hubraji. All of them were born before the death of Mst. Phool Kumari, i.e., before 12.8.1954. By a sale-deed dated 18.02.1963, Smt. Jai Raji alongwith her husband Raj Narain and Smt. Subhraji sold the property in dispute, on their own behalf and as guardian of their minor sons who were born by that time, which came by way of succession from Mst. Phool Kumari. Minor sons, Shiv Jokhan, Faujdar and Ram Samujh, on becoming major filed a suit before the Civil Court for cancellation of the said sale deed by Original Suit No.222 of 1970. The Civil Court decreed the suit holding that the sale deed was without any authority as none of the vendors namely Smt. Jai Raji, Mst. Subh Raji and Sri Raj Narain ever inherited the property in dispute. The Appellate Court thereafter affirmed the said finding and dismissed the appeal.
5. Learned counsel for the defendant-appellant in the said background has raised two substantial questions of law;
(i) whether the Trial Court and the Appellate Court have wrongly applied the law of succession; and
(ii) whether the suit is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the U.P.Z.A. and L.R. Act) and it is only the Revenue Court that would have jurisdiction to hear the case.
6. So far as the issue of succession is concerned, there are two parts to it viz. (i) whether Phool Kumari could succeed her husband's Sir rights in an agricultural land and if the answer to the first part is affirmative then (ii) who would succeed Phool Kumari's interest after her death. Now coming to the first part, the death of Late Deep Narain took place on 18.8.1950 i.e. before coming into force of U.P.Z.A. and L.R. Act which was given assent by the President on 24.1.1951. Prior to the enactment of the U.P.Z.A. and L.R. Act, succession of rights of a Sir holder in an agricultural land was governed by Section 9(1) of the Uttar Pradesh Tenancy Act, 1939. Section 9(1) of the said Act reads, "Section 9: Succession to, and transfer of, sir right-
(1) On the death of a sir-holder sir right shall not devolve except in accordance with the personal law to which the deceased was subject."
Thus rights of a Sir holder in an agricultural land shall devolve as per the relevant personal laws at that time. It is not disputed that Deep Narain died issueless and was survived by his widow Phool Kumari. At that time a Hindu widow could succeed her husband's rights in a property as per the Section 3(1) of the Hindu Women's Right to Property Act, 1937 (hereinafter referred to as the Act of 1937). However as per sub-section 3(3) such devolution shall be only be a life interest. Section 3(1) and 3(3) of the Act of 1937 reads, "3. Devolution of property.- (1) When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub‑section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son:
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
......
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner."
Thus a Hindu widow could succeed the property rights of her deceased husband, but the same was limited interest i.e., only a life interest. The Act of 1937 was a federal legislation and therefore agricultural land was out of its ambit as under the Government of India Act, 1935, only Provincial Government was competent to legislate on matters pertaining to agricultural lands. However, in 1942 the Provincial Government of United Provinces enacted the United Provinces Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1942 (hereinafter referred to as the Act of 1942) to also include agricultural land within the meaning of the word ''property' in Section 3(1) of the Act of 1937. Section 2 of the Act of 1942 reads, "2. Extension of Act XVIII of 1937 and Act XI of 1938 to Agricultural land. - The term "property" in the Hindu Women's Rights to Property Act 1937, and Hindu Women's Rights to Property (Amendment) Act, 1938; shall include and shall be deemed always to have included agricultural land :
Provided that where any person who, but for this Act, would have been entitled to any property, has been in possession or has made a transfer thereof, his possession till the commencement of this Act shall be deemed to be as lawful, and the transfer made by him shall be deemed to be as valid as if this Act had not been passed : and Provided further that nothing in this Act shall affect any rule of succession prescribed for tenant's rights in agricultural land by any special law for the time being in force."
A joint reading of the aforesaid provisions therefore confirms the finding of both the Trial Court and First Appellate Court that Phool Kumari succeeded her husband's interest in the land in dispute after his death.
7. The next question that arises is the successor of Phool Kumari. Section 4 of the U.P.Z.A. and L.R. Act which vests the property was enforced from 1.7.1952. Thus, after the vesting, Mst. Phool Kumari became bhoomidhar of the property in dispute under the U.P.Z.A. and L.R. Act. Succession under the U.P.Z.A. and L.R. Act with regard to a woman holding a life interest as a widow since prior to the date of vesting is provided under Section 172(2)(a)(i) of the Act. The said Section at the time of coming into force of U.P.Z.A. and L.R. Act reads as follows:
"172. Succession in the case of a woman holding an interest inherited as a widow, mother, daughter, etc. -
.....
(2) Where a bhumidhar or sirdar who has before the date of vesting inherited an interest in any holding as a widow, mother, step-mother, father's mother, daughter, sister or step-sister-
(a) dies, and such bhumidhar or sirdar was on the date immediately before the said date an intermediary of the land comprised in the holding, or held the holding as a fixed-rate tenant, or an ex-proprietary or occupancy tenant in Avadh, or as a tenant on special terms in Avadh and
(i) she was in accordance with the personal law applicable to her entitled to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of section 171) of the last male intermediary or tenant aforesaid; and if........"
8. Successors of a woman holding a life interest as a widow prior to the date of vesting will therefore be determined as per provisions of Section 171 of the U.P.Z.A. and L.R. Act. The original Section 171 reads as follows:
"171. General order of successions- Subject to the provisions of sections 169 and 173, when a bhumidhar, sirdar or asami being a male dies, his interest in his holding shall devolve in accordance with the order of succession given below:
(a) male lineal descendants in the male line of descent :
Provided that the son or sons of a pre-deceased son how-low-so-ever shall inherit the share which would have devolved upon the deceased if he had been then alive;
(b) widow;
(c) father;
(d) mother, being a widow;
(e) father's father;
(f) father's mother, being a widow;
(g) widow of a male lineal descendant in the male line of descent;
(h) step-mother, being a widow;
(i)unmarried daughter;
(j) daughter's son ;
(k) brother, being the son of the same father as the deceased;
(l) unmarried sister;
(m) brother's son, the brother having been a son of the same father as the deceased;
(n) father's father's son;
(o) brother's son's son;
(p) father's father's son's son."
The same was amended by Section 39 of U.P. Act No. XVI of 1953 and was given retrospective effect from July 1, 1952. By Section 39 of the U. P. Act XVI of 1953, clause (j) was made (k) and vice versa. Clause (mn) was added and introduced after clause (m) as "(mn) sister's son".
A bare perusal of Section 171 of the U.P.Z.A. and L.R. Act, after it was duly amended by Act No. XVI of 1953, shows that it added sisters' son among the list of seccessors.
The Act was further amended by U.P. Act No.20 of 1954 which came in force from 19.10.1954. The said amendment made sisters preferential successor over sister's sons. However, both the Courts have given a concurrent finding that Mst. Phool Kumari died on 12.08.1954 i.e., before coming into force of the U.P. Act No. 20 of 1954 and are not disputed during course of arguments before this Court. Thus, under Section 172(2)(a)(i) read with Section 171(1)(mn), as it stood on 12.8.1954, i.e., the day Mst. Phool Kumari died, it is Deep Narain's sisters' sons who would inherit the property. Thus, there is no illegality in the finding recorded by both the courts holding that only Deep Narain's sisters' sons would inherit the property on death of Mst. Phool Kumari on 12.8.1954 as per the law applicable on the said date, and not his sisters.
9. So far as the substantial question of law number two that jurisdiction of the Civil Court would be barred under Section 331 of the U.P. Z.A. and L.R. Act and only Revenue Court has jurisdiction is concerned, learned counsel for the appellants has relied upon the judgment of the Supreme Court in the cases of Narendra Kumar Mittal and others v. M/s. Nupur Housing Development Pvt. Ltd. and another ; 2019 (144) RD 785 and Shri Ram and another v. Ist Addl. Distt. Judge and others; (2001) 3 SCC 24 and Full Bench judgments of this Court in the cases of Ram Awalamb v. Jata Shankar; AIR 1969 Allahabad 526 and Ram Padarath and others v. Second Addl. District Judge, Sultanpur and others; 1989 (1) AWC 290 (All).
10. Learned counsel for the appellants has strongly submitted that in view of the aforesaid judgments, it is only the Revenue Court, which can hear the matter with regard to declaration of ownership of the property.
11. Learned counsel for the respondents, on the other hand, has submitted that since the suit is filed for cancellation of sale deed dated 18.02.1963 executed by natural guardians of minors, it is only the Civil Court, which would decide the dispute as the sale deeds were required to be cancelled and could not be ignored till it is cancelled. He further submits that in any view of the matter, property is sold by the natural guardian of the minors and, since, on attaining majority, the minors intend to get the sale deed cancelled, therefore, only the Civil Court has jurisdiction in such a scenario.
12. Law with regard to a sale deed executed by a natural guardian of a minor under the Hindu law and its cancellation is settled since long. Natural guardian has a right to execute the sale deed of the property and even presuming that the same is having any defect, and minors have a right to rectify the same on becoming major. This option available with minors makes the sale deed at best a voidable document. Suffice would be to refer to the judgment of the Supreme Court in the case of Nangali Amma Bhavani Amma v. Gopalkrishnan Nair; (2004) 8 SCC 785, relevant paragraph 8 of the said judgment reads, "8. In view of the express language used, it is clear that the transaction entered into by the natural guardian in contravention of sub-section (2) was not void but merely voidable at the instance of the minor. To hold that the transaction in violation of Section 8(2) is void would not only be contrary to the plain words of the statute but would also deprive the minor of the right to affirm or ratify the transaction upon attaining majority. This Court in Vishwambhar v. Laxminarayan [(2001) 6 SCC 163] has also held that such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act. The High Court did not consider the issue of limitation at all in view of its finding on the effect of a violation of Section 8(2) of the Act. As the conclusion of the High Court on this aspect of the matter is unsustainable, the impugned decision must be set aside."
13. In view of the law settled as aforesaid, the sale deed dated 18.2.1963 at best is a voidable document at the option of the minors, as the minors may or may not challenge the same. As per the law settled by the Full Bench of this court in the case of Ram Padarath (supra), Civil Court's jurisdiction is ousted and Revenue Court will have exclusive jurisdiction to decide the title of a person over an agricultural property only when the Revenue Court can ignore a void ab initio document and proceed to grant reliefs. The same principle was later affirmed by the Supreme Court in the cases of Shri Ram (supra) and Narendra Kumar Mittal (supra). Paragraph 7 of the judgment in Ram Padarath (supra) reads:
"7. So far as voidable documents like those obtained by practising coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect if any can be put to an end to by declaring it to be void and granting some other relief instead of cancelling it. Once it is held to be void it can be ignored by any court or authority being of no legal effect or consequence. A document executed without free consent or one which is without consideration or the object of which is unlawful or executed by a person not competent to contract like a minor or in excess of authority would be a void document. In case it is in excess of authority it would be void to that extent only. There is presumption of due registration of a document and correctness of the facts mentioned in the same, but the said presumption is not conclusive and be dislodged."
14. In the present case, since the document could not be ignored by the Revenue Court and it needs to be challenged before its effect could be nullified, therefore, the Civil Court alone had jurisdiction to decide the case. The sale deed dated 18.2.1963, till it is challenged by minors, stands valid and in the said circumstances, the Revenue Court cannot give any declaration against it. Thus, it is only the Civil Court which is having jurisdiction to cancel the sale deed and decide the suit. There is no illegality in the judgment and decree passed by both the courts.
15. The second appeal is accordingly dismissed.
[Vivek Chaudhary,J.] Order Date: 24.03.2023 Sachin/Arti