Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
RAM JIVAN
Vs.
RESPONDENT:
SMT. PHOOLA (DEAD) BY LRS. & ORS.
DATE OF JUDGMENT30/01/1976
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
CITATION:
1976 AIR 844 1976 SCR (3) 282
1976 SCC (1) 852
CITATOR INFO :
D 1989 SC1872 (15)
ACT:
U.P. Zamindari Abolition & Land Reforms Act, 1950-
Sections 172 and 174-Scope of. .
Practice-Whether decision of a Division Bench in an
appeal binding on another Division Bench hearing a writ
petition.
HEADNOTE:
Under s. 172 of the U.P. Zamindari Abolition and Land
Reforms Act, 1950, when a bhumidar who has, after the date
of vesting, inherited an interest in any holding, dies, the
holding or the part thereof shall devolve upon the nearest
surviving heir (such heir being ascertained in accordance
with the provisions of s. 171). Section 174 provides that
when a bhumidar who is a woman dies, her interest in the
holding shall devolve in accordance with the order of
succession given in the section.
The appellant was the grandson (son’s son) of one
brother while respondent No. I was the only daughter of
another brother. On the death of the(1)respondent’s father,
her mother continued in possession of the lands as heir of
her husband under the provisions of the Oudh Land Act, 1886.
U.P. Act 4 of 1921 which replaced the 1886 Act, conferred
the status of a statutory tenant upon a person in possession
of lands on the date of the amendment. Section 29 of the
U.P. Tenancy Act, 1939, which was a consolidating Act,
conferred the status of a hereditary tenant on any person
who was a tenant . of the land at the commencement of the
Act and so the mother acquired the status of a hereditary
tenant. The 1939 Act. was replaced by the U.P. Zamindari
Abolition & Land Reforms Act. 1950 under which she became a
bhumidar. The mother died in 1952.
On the death of the respondent’s mother the appellant
got his name mutated in the revenue records as the nearest
heir of the mother. The respondent Sled a suit under s. 21
of the Abolition Act 1950 claiming to be the sole legal heir
to the property. She also field an application before the
Consolidation officer under the U.P. Consolidation of
Holdings Act for mutation of her name in a place of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
appellant’s, which was accepted.
On appeal to this Court it was contended that it was
the appellant’s father who would succeed to the property in
preference to the respondent and it was contended for the
respondent that when the respondent’s father died, the
tenancy was heritable and so the tenancy acquired by her
mother was in her own right as self-acquired property.
Allowing the appeal,
^
HELD: (1) Section 172A which was introduced in 1954 has
no application to this case because the mother died two
Years before the amendment came into force and the question
of succession to her estate would be governed by s. 172 or
s. 174 of the Abolition Act. [274-A]
(2) The statute seeks to make a clear cut distinction
between a widow who has inherited an interest from her
husband dealt with in s. 172 and widow who had acquired an
independent interest in the holding covered by s. 174.
[272 C]
Mst. Jaini & Ors. v. Ram Prasad, A.I.R. 1952 All. 852,
approved.
(3) (a) Section 172 uses the word ’holding or the Dart
shall devolve’ to denote that if it was found that a widow
had inherited an interest in the holding from her husband
then it was the holding that devolved and not interest of
the widow, which ceased after her death. The High Court had
overlooked the fact that merely because the mother having
initially inherited possession or
263
occupation of the holding from her husband acquired other
types of interest A by operation of law that could not
destroy the origin or the source of her title which was
inheritance from her husband. Nor did the conferment of the
status of a statutory tenant under the various laws passed
by the legislature amount to an acquisition of a self-
acquired interest by the widow. [272B, D)
(b) The words "inherited an interest" occurring in s.
172 are not defined in the statute and, therefore, they must
be deemed to be of the widest possible amplitude. [272F]
(4) Section 174 applies only to such cases where the
widow did not inherit an interest from her husband but had
an independent interest in the holding which she possessed
as her self-acquired property Under s. 174 it is the
interest in any holding which devolves and not the holding.
The language used in Ss. 172 and 174 of the Abolition Act
unmistakably brings forth the distinction between the two
contingencies in which the two sections are to apply.
[273E-F]
(5) The High Court having found as a fact that the
mother had inherited the property initially from her husband
erred in law in not applying the provision of s. 172 read
with s. 171 of the Abolition Act as a result of which her
husband’s brother’s son was entitled to succeed to the
estate left by her in preference to her daughter
(respondent). [271H]
(6) The origin of the title of the mother lay in
inheritance of the estate of her husband however limited or
precarious it might have been. The succession to the estate
of the mother would have to be governed by the provisions of
s. 172 of the Abolition Act. In the order of succession
given in s. 171 brother’s son was a preferential heir.
Before the amendment of the Abolition Act in 1954, married
daughter was completely excluded from inheritance.
[274G-H]
In the instant case the respondent having married on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
the death of her mother in 1952 the holding held by the
mother would devolve on the appellants father and
thereafter, on the appellant as heir to his father.
(7) The expressions ’heir of a tenant’ and ’shall be
entitled to retain occupation’ occurring in s. 48 of the
Rent Act 1886 before its amendment in 1921 clearly postulate
that the right to retain the occupation of the lands in
dispute was given to the heirs of the deceased tenant, which
clearly indicated that the person who retained occupation
would inherit or succeed to a limited right which the
deceased tenant possessed under the Act. [273A]
In the instant case on the death of her husband
occupation of the. tenancy by the mother was by no way other
than as heir of her husband. It cannot be said that the
occupation of the lands by the mother on her husband’s death
was purely in her individual or independent capacity or that
her possession of the lands amounted to her self-acquired
property. [273D-E]
(8) Whether a decision is given in appeal from an
original suit or in a writ petition the ratio is binding on
the subsequent Division Bench and merely because the
previous Division Bench judgment was given in a suit the
subsequent Division Bench cannot refuse to follow the same
on the ground that it was hearing the proceeding in a Writ
petition. The rule of judicial precedent is a salutary one
and is aimed at achieving finality of judgments. In case the
Division Bench under appeal wanted to differ from the
previous decision of the Division Bench of the same court it
ought to have referred the matter to a large bench. [271F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 901 of
1968.
Appeal by special leave from the judgment and order
dated the 5-10-1966 of the High Court of Judicature at
Allahabad in Special Appeal No. 97 of 1965.
J. P. Goyal and A. G. Ratnaparkhi for the Appellant.
G. N. Dikshit and M. V. Goswami for Respondents.
264
The Judgment of the Court was delivered by
FAZAL ALI. J. This is an appeal by special leave
against the judgment of a Division Bench of the High Court
of Allahabad dated October 5, 1966, and raises a question of
law regarding the applicability of ss. 172 and 174 of the
U.P. Zamindari Abolition and Land Re forms Act, 1950 (Act
No. 1 of 1951). ,,
It appears that the case had a checkered career and the
dispute between the parties passed through several phases
both before the Revenue Courts and in the High Court. In
order to appreciate the point of law involved in this
appeal, it may be necessary to give a resume of be facts
which culminated is the judgment of the High Court under
appeal. The dispute refers to lands comprised in Khata Nos.
1002, 1344 and 1411 of village Bishunpur in the District of
Rae Bareli (U.P.). It is not disputed that these Khattas
originally belonged to one Harbans who died leaving behind
three sons, namely Gurdin, Ramcharan and Ramadhin. Ramcharan
appears to have died issueless but Ramadhin died leaving a
widow Smt. Menda and a daughter from her Smt. Phoola who
was respondent No. 1. The other son Gurdin died leaving a
son Jit who had contested the present proceedings against
Smt. Phoola. During the pendency of the present proceedings
Jit also died and the proceedings have been continued by his
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
son Ram Jivan Lallu. The District of Rae Bareli fell in
what was previously known as the Oudh Area of the
United(1)Provinces. The dispute between the parties appears
to have arisen on the death of Ramadhin one of the sons of
Harbans who died in 1916 leaving behind his widow Smt.
Menda. At the time of the death of Ramadhin in 1916 the
tenancy of the lands in dispute was governed by the
provisions of the Oudh Rent Act, 1886-hereinafter referred
to J as ’the Rent Act of 1886’. Under the provisions of the
Rent Act of 1886 Smt. Menda was to continue in possession of
the lands as an heir of Ramadhin but only during the fixed
period of the tenancy on the rent payable to the landlord
and was not entitled to renewal of the same. The terms and
conditions of the tenancy at the time of the death of
Ramadhin were governed by s.48 of the Rent Act of 1886 which
applied to the oudh Area where the lands in dispute were
situate. Under s.48 of the Rent Act of 1886 it is obvious
that on It the death of a tenant his widow was to continue
in occupation of the lands for the unexpired portion of the
period for which the deceased tenant might have held the
holding. Accordingly Smt. Menda continued to occupy the
lands after the death of her husband in 1916. Meanwhile five
years later the Rent Act of 1886 was amended by U.P. Act 4
of 1921 under which the status of a statutory tenant was
con feared on a person who was in possession of the lands on
the date when the amendment came into force. The amendment
introduced a substantial change in s.48 of the Rent Act of
1886 and added clause’(1)(18) to s.3 which runs thus:
"(18) "Statutory tenant" means a tenant to whom
section 36 or section 37 applies.
Explanation.-A person who succeeds as an heir of
a(1)statutory tenant under section 48 shall not be
deemed to be
265
a statutory tenant unless he has obtained a patta from
the landlord or has remained in occupation of the
holding for three years after the expiration of the
period for which he is entitled to retain occupation of
the holding under section 48:
"Provided that when a holding is held by two or
more co-tenants no person who succeeds as an heir of
any such co tenant under section 48 shall be deemed to
be a statutory tenant of the holding unless he has
obtained a patta from the landlord, or has remained in
occupation of the holding for three years after the
expiration of the period for which the heir of the last
surviving co-tenant is entitled to retain occupation of
the holding under section 48."
By virtue of the Explanation extracted above, a tenant to
whom ss. 36 and 37 applied would be deemed to be a statutory
tenant. Section 36 of the Rent Act of 1886 runs thus:
"Every tenant, not being a tenant with a right of
occupancy or a sub-tenant, shall be entitled to retain
possession of the holding occupied by him at the
commencement of the Oudh Rent (Amendment) Act, 1921, at
the rent then payable by him, for a period of ten years
from the date of the last change in his rent or the
last alteration in the area of the holding, or where no
such change or alteration has taken place, from the
date on which the tenant was admitted to the occupation
of the holding." -
As Smt. Menda was in possession of the holding at the date
when the amendment came into force, she would be clearly
governed by s. 36 and not s. 37 of the Rent Act of 1886
which deals with tenants who were admitted to the occupation
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
of the holding after the coming into force of the amendment.
Under s. 36 the widow was entitled to retain possession of
the holding acquired by her for a period of ten years from
the date on which she was admitted to the occupation of the
holding. Thus the combined effect of s. 3(18) and s. 36 of
the Rent Act of 1886 would be to clothe Smt. Menda with the
status and the rights of a statutory tenant. Section 48 made
the status of a statutory tenant heritable and provided as
follows:
"(1) When statutory tenant dies, his heir shall be
entitled to retain occupation of the holding at the
rent pay able by the deceased for a period of five
years from the date of the tenant’s death, and to
receive compensation under the provisions of this Act
for improvements, if any, made on the holding by his
predecessor in interest, but shall not be entitled to a
renewal of the tenancy.
Provided that a person who succeeds as an heir of
a deceased tenant to whom clause (e) of sub-section (1)
of section 62A applies shall be entitled to retain
occupation of the holding at the rent payable by the
deceased only for
266
the unexpired portion of the statutory period of the
deceased tenant.
(2) Subject to any rights which he may have under
section 22 as a representative of the deceased, a
collateral relative who did not at the date of the
death of the, deceased, share in the cultivation of the
holding, shall not be deemed to be an heir of the
deceased within the meaning of this section."
In the instant case as Smt. Menda had succeeded as an heir
to her husband before the amendment of s. 48 her case will
be governed by the provisions of s. 48 and she would be
entitled to retain possession of the tenancy but not to a
renewal thereof. It appears that soon after the death of
Ramadhin the Court of Wards claimed that the tenancy had
escheated to the State because Ramadhin had left no heirs
and that Ramadhin was only a tenant at will. Smt. Menda
appears to have resisted the claim of the Court of Wards.
which resulted in proceedings before the Revenue Courts
which ultimately found that Smt. Menda had acquired the
independent rights of a statutory tenant and was, therefore,
not liable to be ejected at the instance of the Court of
Wards. This order was passed by the Assistant Collector on
June 4, 1926 and thereafter Smt. Menda continued in
possession of the holding as a statutory tenant under the
amended Rent Act of 1921.
We might mention here that previous to the passing of
the U.P. Tenancy Act, 1939 the areas of Oudh and Agra in the
United Provinces were governed by two separate Acts so far
as the tenancies were concerned. The areas in Agra were
governed by the Agra Tenancy Act and those in Oudh by the
Oudh Rent Act.‘The U.P. Tenancy Act 17 of 1939 appears to
have consolidated the tenancies in the whole of the Province
and the legislature passed one Act which would govern all
the tenancies in the entire Province. The U.P. Tenancy Act
17 of 1939 was passed on December 16, 1939 and by s. 2
there- of the Agra Tenancy Act, 1926 and the Oudh Rent Act,
1886 were repealed. Section 29 of the Tenancy Act conferred
the status of a hereditary tenant on any person who was a
tenant of the land at the commencement of the Act. Thus Smt.
Menda who continued to be in possession as a statutory
tenant acquire the status of a hereditary tenant, under s.
29(a) of the Tenancy Act which runs thus:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
"29. Every person belonging to one or another of
the following classes shall be a hereditary tenant, and
subject to any contract which is not contrary to the
provisions of section 4 shall be entitled to all the
rights conferred, and be subject to all the liabilities
imposed on hereditary tenants by this Act, namely:
(a) every person who is, at the commencement of
this Act, a tenant of land otherwise than as a
permanent tenure-holder, a fixed-rate tenant, a tenant
holding on special terms in Oudh, an ex-Proprietary
tenant, an occupancy tenant,
267
except as otherwise provided in this Act as a sub-
tenant or a tenant of sir :"
The Tenancy Act having conferred heritable rights on the
tenants to which s. 29 applied also laid down an order of
succession in which the rights of the tenants would pass
after the death of the tenant. Sections 36 and 37 of the
Tenancy Act provided two different modes of devolution in
the case of the death of a female tenant. Section 36 runs
thus:
"36 (1) When a female tenant, other than a tenant
mentioned in section 34, who either before or after the
commencement of this Act has inherited an interest in a
holding as a widow, as a mother, as a step-mother, as a
father’s mother, or, as a daughter dies or abandons
such holding, or surrenders such holding, or a part of
such holding or, in the case of a tenant inheriting as
a widow or as a daughter, marries such holding or such
part of such holding shall, not withstanding anything
in section 45, devolve in accordance with the order of
succession laid down in section 35 on the heir of the
last male tenant, other than a tenant who inherited as
a father’s father under the provisions of that section.
x x x x "
Section 37 of the Tenancy Act runs-thus:
"when a female tenant, other than a tenant
mentioned in section 34 or section 36 dies, her
interest in the holding shall devolve in accordance
with the order of succession given below:-
(a) male lineal descendants in the male line of
descent:
Provided that no member of this class
shall inherit if any male descendant between him and
the deceased is alive;
(b) husband;
(c) unmarried daughter,
(d) daughter’s son;
(e) brother
(f) brother’s son."
It will be seen that under s. 36 of the Tenancy Act the
heirs of the husband precedence over the daughter or the
unmarried daughter, whereas in the case of a female tenant
falling under s. 37 of the Tenancy Act the unmarried
daughter gets precedence over the brother the or brother’s
son. In other words, the policy of the law was that where a
female tenant died having inherited an interest in the
property from her husband then the male heirs of the husband
should get preference over the female heirs. Where, however,
the female tenant had died having an independent and self-
acquired interest in the holding, her property was to pass
in a different manner. We are not concerned in this appeal
with either s. 36 or s. 37 of the Tenancy Act, because Smt.
Menda had died some time in September 1952
-L522SCI/76
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
268
when the U.P. Tenancy Act, 1939 had been replaced by the
U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P.
Act 1 of 1951) hereinafter to be referred to as ’the
Abolition Act.’
In short, therefore, Smt. Menda who originally occupied
the lands in suit as a tenant on the death of her husband
became a statutory tenant under the Rent Act of 1921, a
hereditary tenant under the Tenancy Act and finally she
acquired the status of a bhumidhar under the Abolition Act
which came into force on July 1, 1952. The relevant portion
of s. 18 of the Abolition Act may be extracted thus:
18. (1) Subject to the provisions of Sections 10, 15,
16 and 17, all lands-
(a) in possession of or deemed to be held by an
intermediary as sir, khudkasht, or an
intermediary’s grove-
(b) held as a grove by, or in the personal
cultivation of a permanent lessee in Avadh,
(c) held by a fixed-rate tenant or a rent-free
grantee as such, or
(d) held as such by-
(1) an occupancy tenant, ’
(ii) a hereditary tenant,
(iii)a tenant on patta dawami or istamrari
referred to in section 17
possessing the right to transfer the holding
by sale.
(e) held by a grove-holder,
on the date immediately preceding the date of vesting
shall be deemed to be settled by the State Government
with such intermediary lessee, tenant, grantee or
grove-holder, as the case may be, who shall, subject to
the provisions of this Act, be entitled to take or
retain possession as bhumidhar thereof."
As Smt. Menda had already become a hereditary tenant under
the Tenancy Act she automatically acquired the status of a
Bhumidhar under the Abolition Act and by virtue of the legal
fiction created by s.18(1) of the Abolition Act, the lands,
having been vested in the State Government, were deemed to
have been permanently settled with the bhumidhar, namely,
Smt. Menda in this case. It is the admitted case of the
parties that Smt. Menda died some time in September 1952,
i.e. Only a few months after coming into force of the
Abolition Act. The controversy between the parties now
centers round the question as to who would succeed to the
tenancy left by Smt. Menda. In other words, the matter to be
decided is whether s. 172 or s. 174 of the Abolition Act
would apply to the present case. It is not disputed that
Smt. Menda died leaving a daughter Smt. Phoola and her
husband’s brother’s son Jit. These were the two contending
heirs for the property left by Smt. Menda.
269
Sections 172 and 174 of the Abolition Act, insofar as
they are A relevant, may be extracted as follows:
"172. (1) When a bhumidhar sirdar or asami, who
has after the date of vesting, inherited an interest in
any holding-
"(a) as a widow, widow of a male lineal
descendent, in the male line of descent,
mother or fathers mother dies, marries,
abandons or surrenders of , such holding or
part thereof; or
(b) x x x
the holding or the part shall devolve upon the nearest
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
surviving heir (such heir being ascertained in
accordance with the provisions of Section 171) or the
last male bhumidhar, sirdar or asami.
X X
"174. When a bhumidhar, sirdar or asami (other
than a bhumidhar, sirdar or asami mentioned in Section
171 or 172) who is a woman dies, her interest in the
holding shall devolve in accordance with the order of
succession given below:
(a) son, son’s son, son’s son, son’s son’s son
predeceased son’s widow and predeceased son’s
predeceased son’s widow in equal shares per
stripes:
Provided firstly that the nearer shall
exclude the remoter in the same branch:
Provided secondly that a widow, who has
remarried, shall be excluded;
(d) daughter;
x x x
(g) brother’s son;
x x x x
It is, therefore, clear that the mode of succession to the
property of Smt. Menda would depend on the determination of
the question whether Smt. Menda had inherited an interest in
any holding or had an independent interest in the holding.
This matter appears to have been canvassed before the
Revenue Courts which upheld the plea of Smt. Phoola.
To begin with on the death of Smt. Phoola, Jit was
successful in getting his name mutated in respect of the
Khattas in dispute as being the nearest heir to Smt. Menda.
The mutation was made by the Tahsilder Maharajgunj on July
30, 1954. This mutation appears to have been challenged by
Smt. Phoola who claimed to be the daughter of Smt. Menda and
therefore a preferential heir to the property as compared to
Jit. In 1957 Smt Phoola filed a suit under s. 209 of the
Abolition Act for the ejectment of Jit from the disputed
lands, on the ground that she was the sole legal heir of the
3-L522SCI/76
270
property left by Smt. Menda. In the meanwhile in 1961 a
notification under s. 4 of the Consolidation Act was issued
bringing village Bishunpur m which the lands in dispute were
situate under the consolidation operations. Accordingly Smt.
Phoola filed an application during the consolidation
operations before the Consolidation officer, Bachhrawan, for
correction of the records under s. 10(1) of " the U.P.
Consolidation of Holdings Act and prayed that the name of
Jit in the Khattas in dispute may be struck off and Smt.
Phoola’s name may be mutated therein. The Consolidation
officer accepted the plea of Smt. Phoola and he accordingly
struck off the name of it from the Khattas and directed
that Smt. Phoola being the legal heir of Smt. Menda her name
be mutated in respect of the Khattas. Thereafter Jit filed
an appeal against the order of the Consolidation officer
before the Settlement officer (Consolidations), Tahsil
Maharajgunj, District Rae Bareli. The Settlement officer by
his order dated December 26, 1961 dismissed the appeal and
upheld the order of the Consolidation officer. Thereafter
Jit filed a second appeal be fore the District Deputy
Director of Consolidation, Rae Bareli, which was permitted
under the U.P. Consolidation of Holdings Act as it was in
force then. The District Deputy Director of Consolidation
upheld the plea of Smt. Phoola and held that she was
entitled , to inherit the property of Smt. Menda being her
legal heir in preference to Jit who was merely her husband’s
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
brother’s son and relied upon s. 171 of the Abolition Act,
and accordingly dismissed the appeal. Thereafter Jit filed a
revision before the Joint Director of Consolidation who also
dismissed the revision as being concluded by a finding of
fact. Thereafter Jit filed a writ petition before the
Allahabad High Court on December 21, 1962 and the writ
petition was allowed by the Single Judge on August 6, 1965.
Smt. Phoola then filed a special appeal before a Division
Bench of the Allahabad High Court which reversed the
decision of the Sing Judge and dismissed the writ petition
filed by Jit upholding the plea of Smt. Phoola. There after
Jit moved the High Court for granting leave to appeal to
this Court and the same having been refused the present
appeal by special leave has been filed in this Court.
In support of the appeal Mr. J. P. Goyal has submitted
that the Division Bench as also the Revenue Courts had taken
a wrong view of the law in holding that Smt. Phoola was
entitled to succeed to the property left by Smt. Menda. The
learned counsel submitted that the present case squarely
fell within the ambit of s. 172 of the Abolition Act since
Smt. Menda had originally inherited the property from her
husband Ramadhin and, therefore, according to the order of
succession provided in s. 171 of the Abolition Act which
applied to s. 172, Jit who was the son of the brother of
Ramadhin would succeed in preference to the daughter of Smt.
Menda. The respondents despite service did not appear and we
requested Mr. G. N. Dikshit to assist the Court amicus
curiae and we are grateful to him for the valuable
assistance he rendered to us in deciding the complicated
issues of law involved in this appeal. Mr. Dikshit submitted
that at the time when Ramadhin died the tenancy was not
heritable and therefore the , question of Smt. Menda having
inherited the estate of her-husband did
271
not arise and the tenancy held by Smt. Menda must therefore
be regarded as having been acquired by her in her own right
as her self-acquired property and, therefore, the Division
Bench of the High Court and the Revenue Courts were right in
upholding the plea of Smt. Phoola.
We have gone through the entire record as also the
judgment of the Single Judge and the Division Bench and we
think that the Division Bench of the High Court has taken an
erroneous view of the law in the present case. The Division
Bench found that although it was established that Smt. Menda
had inherited the property from her husband Ramadhin yet the
finding of the Revenue Courts was that she had acquired the
status of a statutory tenant independently and since there
was no error of law in this finding of the Revenue Courts
there was no reason for the Single Judge to set aside the
order of the Joint Director of Consolidation and allow the
petition. It was argued before the High Court that the
matter was concluded by a Division Bench decision of the
Allahabad High Court in Mst. Jaini & ors. v. Ram Prasad(1)
and the High Court appears to have brushed aside this
decision on a strange process of reasoning which does not
appeal to us at all. the High Court observed as follows:
"Mr. Misra has strenuously contended that Jaini v.
Ram Prasad (1)supra) is clear authority for the
proposition that even in the case of a statutory tenant
succession would devolve under section 36 which,
according to Mr. Misra is a counter part of section 172
read with section 171 of the U.P. Zamindari Abolition
Act. Jaini v. Ram Prasad (supra) is clearly
distinguishable because that case came up in appeal
before this Court and not in the form of a writ or an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
appeal against the decision of a learned single Judge
in a writ petition."
It is obvious that whether a Division Bench decision is
given in an appeal from an original suit or in a writ
petition the ratio is binding on the subsequent Division
Bench, and merely because the previous Division Bench
judgment was given in a suit the subsequent Division Bench
cannot refuse to follow the same because it was hearing the
proceeding in a writ petition. The rule of judicial
precedent is a very salutary one and is aimed at achieving
finality and homogeneity of judgments. In case the Division
Bench under appeal wanted to differ from the previous
decision of the Division Bench of the same Court it ought to
have referred the matter to a larger Bench but it was not
open to it to ignore completely the previous decision on
illogical and unintelligible grounds as given by the High
Court.
We are further of the opinion that the Division Bench
having found as a fact that Smt. Menda had inherited the
property initially from her husband erred in law in not
applying the provisions of s. 172 read with s. 171 of the
Abolition Act as a result of which Jit being her husband’s
brother’s son was entitled to succeed to the estate left by
Smt. Menda in preference to Smt. Phoola the daughter. We now
proceed to give reasons for this conclusion.
(1) A.I.R. 1952 All. 852.
272
Section 172 of the Abolition Act as extracted above
provides that when a bhumidhar who has after the date of
vesting inherited an interest in any holding dies the
holding would devolve upon the heirs in accordance with the
order of succession mentioned in s. 171 of the Abolition
Act. It is manifest therefore that in order to determine the
applicability of s. 172 of the Abolition Act we must go to
the origin of the title of the bhumidhar or the main source
from " which the bhumidhar has derived interest in the
holding. It may be pertinent to note here that the statute
uses the words "the holding or the part shall devolve" to
denote that if it is found that a widow has inherited an
interest in the holding from her husband, then it is the
holding that devolves and not interest of the widow which
ceased after her death. Thus the statute seeks to make a
clear-cut distinction between a widow who has inherited an
interest from her husband which is dealt with by s. 172 of
the Abolition Act and a widow who has acquired an
independent interest in the holding which is covered by s.
172 of the Abolition Act. The High Court appears to have
overlooked the fact that merely because Smt. Menda having
initially inherited possession or occupation of the holding
from her husband acquired other types of interests merely by
operation of law, that could not destroy the origin or the
source of her title which was inheritance from her husband.
Nor can we regard the conferment of the status of a
statutory tenant or a hereditary tenant or a bhumidhar under
the various laws passed by the U.P. Legislature as amounting
to an acquisition u. of a self-acquired interest by the
widow. It was, however, argued by Mr. Dikshit that under the
Rent Act of 1886 before its amendment by Act 4 of 1921 the
estate which was held by Ramadhin was not heritable at all
and, therefore, Smt. Menda could not have inherited any
interest in the tenancy on her husband’s death. In this
connection the learned counsel sought to draw a distinction
between the provisions of the Agra Tenancy Act which had
made the tenancies heritable and the provisions of the Oudh
lenience Act which did not make the tenancies heritable.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
Although the argument appears to be extremely attractive, on
closer scrutiny it is not tenable. The words used in s. 172
of the Abolition Act are "inherited an interest". The
statute has not defined the word "interest" and therefore it
must be deemed to be of the widest possible amplitude. It
will include not only an absolute interest but also a
limited interest, a precarious interest and an inchoate
interest or the like. Section 48 of the Rent Act of 1886
before its amendment by Act 4 of 1921 stood as follows:
"48. (1) The heir of a tenant who dies during the
currency of the tenancy of a holding shall be entitled
to retain to occupation of the holding at the rent
payable by the deceased for the unexpired portion of
the period for which the deceased tenant might have
held without liability to enhancement or ejectment, and
to receive compensation under the provisions of this
Act for improvements, if any, made on the holding by
himself or his predecessor in interest, but shall not
be entitled to a renewal of the tenancy.
x x x
The expressions "heir of a tenant" and "shall be entitled to
retain occupation" clearly postulate that the right to
retain the occupation of
273
the lands in dispute is given only to the heirs of the
deceased tenant A which clearly indicates that the person
who retains occupation would inherit or succeed to a limited
right which the deceased tenant possessed under the Act. In
the instant case since Smt. Menda continued to retain
occupation of the lands on the death of her husband, she did
so only as the heir of her husband and not otherwise, for if
that was not to then she could not have been entitled to
retain occupation. The word ’entitled" clearly signifies
that the occupant must have some right, however precarious
or limited it may be. In these circumstances, therefore,
there can be no doubt that Smt. Menda’s occupation of the
tenancy on the death of Ramadhin was by way of inheritance
only. There was no other method by which she could have a
right or claim to retain occupation of the holding. It is
true that the interest of Smt. Menda was a very limited one
and she could have been ejected by the landlord under
certain circumstances. But section 48 of the Rent Act of
1886 undoubtedly conferred two important rights on the heir
of the deceased tenant-(1) the right to retain occupation of
the holding on the rent payable; and (2) to receive
compensation for the improvements made. In these
circumstances, therefore, it cannot be said that the
occupation of the lands by Smt. Menda on her husband’s death
was purely in her individual or independent capacity or that
the possession of the lands amounted to her self-acquired
property. Section 174 of the Abolition Act would naturally
apply only to such cases where‘ a widow does not inherit an
interest from her husband but would include cases where the
female tenant had an independent interest, namely, an
interest which she possessed in the holding as her self-
acquired property, her stridden or the like. That is why s.
174 of the Abolition Act provides that it is the interest in
any holding which devolves and not the holding. Thus the
language used in ss. 172 and 174 of the Abolition Act
unmistakably brings forth the distinction of the two
contingencies in which the to sections are to apply. The
Revenue Courts have also held as a fact that initially Smt.
Menda had inherited the property from her husband but they
have construed the conferment of the various kinds of status
on Smt. Menda after she had already invented the property as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
amounting to her self-acquired property. It seems to us that
the Revenue Courts were wrong in misconstruing the scope and
ambit of the words "inherited an interest in any holding" as
mentioned in s. 172 of the Abolition Act.
Section 172-A of the Abolition Act was introduced by an
amendment of the Act in 1954 which makes the position
absolutely clear, by declaring that where a sirdar or
adhivasi who had inherited any interest in any holding as a
widow, it would be deemed to be an accession to the holding
of the last male holder thereof. We are, however, not at all
concerned with 8. 172-A of the Abolition Act, because Smt.
274
Menda had died two years before the amendment came into
force and the question of succession to her estate would be
governed by s. 17 or s. 174 of the Abolition Act.
In the Division Bench decision in Mst. Jaini’s case
(supra) the Allahabad High Court had taken the same view.
Malik, C.J., speaking for the Court observed thus:
"Section 36 does not require that the tenancy as
such should have been inherited by the widow. All that
it provides is that the widow should have inherited an
interest in the holding. The mere fact that she had to
remain in possession for a further period of eight
years before she could become the statutory tenant of
the holding does not mean that she acquired no interest
in the holding as a widow. We fail to see how it could
be said, in view of the language of s. 36, that her
acquisition of statutory rights had nothing to do with
the fact that she had inherited an interest in the
holding as widow of Bhau. Section 36 was thus clearly
applicable."
The Division Bench also relied in the aforesaid case on an
earlier unreported decision of a Single Judge of that Court
in Sital v. Suraj Din(1) where exactly the same view was
taken as the one we have taken in the instant case. The
observations of the learned Single Judge have been quoted by
the Division Bench in the case referred to above thus:
"We can assume that she acquired on the passing of
the new Act (Act 4 of 1921) a fresh statutory period
and a renewal of the tenancy but that does not take
away the origin of her title...... It is only when a
female tenant acquires tenancy rights which do not have
their origin in inheritance that the case could be
taken out of the‘ amble of s. 36 to be governed by s.
37."
It would be seen that in this case the husband of the
appellant had died in 1916 as in the instant case and yet
the Court held that it is really the origin of the title
that has to be seen and if the tenancy rights had their
origin in inheritance then ss. 36 & 37 would rot apply.
For these reasons, therefore, we are satisfied that the
origin of the title of Smt. Menda lay in inheritance of the
estate of her husband however limited or precarious it may
have been. This being the position, the succession to the
estate of Smt. Menda would have to be governed by the
provisions of s. 172 of the Abolition Act which has applied
the provisions of s. 171 regarding the order of succession.
In the order of succession given in s. 171 of the Abolition
Act brother’s son is a preferential heir. It might be
mentioned here that by virtue of the amendment of the
Abolition Act in 1954 the married daughter was also
introduced as an heir before brother’s son. But this was not
the position prior to 1954 when the married daughter was
completely excluded from inheritance. It is also not
disputed that Smt. Phoola was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
(1) Second Appeal No.421 of 1943 decided on 20-12-48.
275
a married daughter on the death of Smt. Menda. In these
circumstances, therefore, the holding held by Smt. Menda
would devolve on Ramadhin’s brother’s son, namely, Jit and
thereafter on his heir who is now continuing the present
proceedings. Thus the Tahsildar Maharajgunj was fully
justified in mutating the name of Jit in respect of the
lands in dispute instead of Smt. Phoola. the Revenue Courts
as also the Division Bench of the High Court had taken a
legally erroneous view in holding that the mode of
succession would be governed by s. 174 of the Abolition Act
as the interest left by Smt. Menda was her self-acquired
property.
The result is that the appeal is allowed, the judgment
of the Division Bench is set aside and that of the learned
Single Judge is hereby restored. In the peculiar
circumstances of this case, and particularly having regard
to the fact that the respondents have not appeared to
contest the appeal before this Court, we make no order as to
costs in this Court.
P.B.R. Appeal allowed.
276