Full Judgment Text
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PETITIONER:
VIJAY PAL SINGH AND ANOTHER
Vs.
RESPONDENT:
DY. DIRECTOR OF CONSOLIDATION & ORS.WITHCIVIL APPEAL NO. 250
DATE OF JUDGMENT02/05/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1996 AIR 146 1995 SCC (5) 212
1995 SCALE (3)694
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Delay condoned. Substitution allowed in CA 993/79 and
2506/78.
Common question of law arises for decision in these
matters. They are disposed of altogether.
Khata Nos. 26, 83 and 111 in Dhanauli village in Meerut
District of Uttar Pradesh originally belonged to DEvia, who
had three sons, namely, Niadar Singh, Bhanwar Singh and
Kunwar Singh. Naiadar Singh died in 1916, Bhanwar Singh died
in 1910 leaving behind his widow Shiv Devi. Kunwar Singh
died on December 6, 1912 leaving behind him Ram Phool Singh,
Richhpal Singh, Narain Singh and Sohan Singh, the appellants
in C.A. No.2506/78. Shiv Devi died on September 8, 1956
leaving behind her daughter Champi Devi. The appellants in
C.A.No. 991-993/79 are son-in-law of Champi and Rajendra Pal
Singh, grand son of Champi. In the consolidation
proceedings, a dispute had arisen whether Champi was
entitled to 1/3rd share in the property left by Devia and
inherited by his three sons referred to herein before. The
mutation entries in the revenue records disclose that the
three brothers were in separate possession and enjoyment
during their lifetime. On their demise, the names of the
widows of Naiadar Singh, namely, Smt. Sarjo Devi and widow
of Bhanwar Singh, namely Shiv Devi, were entered in the
revenue records as possessors of the respective lands held
by Naiadar Singh and Bhanwar Singh. It is an admitted fact
that the name of Shiv Devi continued to be in the revenue
record. The Consolidation Officer found that her name was
muted in consolation for her maintenance and the Settlement
Officer rejected her claim for 1/3rd share on the ground
that she was not in possession and in her own right and
since Bhanwar Singh died in 1910 she has no right to share
in the property left by her husband and the sons of Kunwar
Singh are entitled to succeed to the estate of Bhanwar
Singh. The Hindu Women’s Right to Property Act,1937, does
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not apply to the claim made by Shiv Devi. On appeal, the
Settlement Officer found that she was in possession of the
property in her right having succeeded to Bhanwar Singh. But
her right is one of limited estate. After the Hindu
Succession Act, 1956 had come into force, limited estate was
enlarged into absolute right in respect of Khata numbers 26
and 83; in respect of Khata number 111 since it is a tenancy
right, having purchased the tenancy rights after paying ten
times the land revenue, she became the owner. Therefore, it
was held that she was entitled to 1/3rd share. Accordingly,
the land was mutated and her name was recorded to the extent
of her 1/3rd share. The same was confirmed by the Deputy
Director Consolidation. Appellants Ram Phool Singh and
others, representing the branch of Kunwar Singh, filed writ
petition in the High Court. The learned single Judge allowed
the writ petition and maintained the order dated October 5,
1978 of the Consolidation Officer holding that Champi did
not acquire any right since Shiv Devi had not succeeded to
the estate of her husband Bhanwar Singh. Therefore, she was
not entitled to separate share and recording of the holdings
in her name was incorrect. Thus, these appeals by special
leave.
The question is whether Smt. Champi, daughter of Shiv
Devi, has 1/3rd share in the properties left by her father
Bhanwar Singh. It would appear from the record that after
the demise of Devia, the names of three sons were mutated in
the revenue record and the finding of the Settlement Officer
is that, though they were in separate possession and
enjoyment of the properties in their respective shares,
since there was no partition by metes and bounds, Shiv Devi
did not acquire any right. It is not in dispute that Shiv
Devi’s name continued in the revenue record to the extent of
1/3rd share held by Bhanwar Singh. This fact establishes
that prior to 1910 Bhanwar Singh obviously separated from
his brothers and was in possession of his 1/3rd share to
which he was entitled. Obviously, by family arrangement
between the brothers, on demise of their father Devia, it
was mutated and on demise of her husband, Shiv Devi’s name
was mutated. Even assuming that the contention of the
respondents should be accepted, she remained in possession
towards her maintenance, by operation of s.11 of the U.P.
Zamindari and Land Reforms Act, 1950 which recognises the
right of Shiv Devi as widow of Bhanwar Singh. Section 11 is
in recognition of the pre-existing personal law.
It is settled law that the widow is entitled only to
limited estate for maintenance. By operation of sub-s.(1) of
s. 14 of the Hindu Succession Act, her limited estate
enlarged into absolute right as she was in possession when
the Act came into force. Thereby she becomes the absolute
owner of the property. When she died intestate, her daughter
Champi became absolute owner as Class-I heir, since she was
in possession and enjoyment of the land in her own right.
The entries in the revenue record corroporate the same.
Thereby she became the absolute owner.
It is not in dispute that Champi had bequeathed 1/6th
share to her son-in-law Vijay Pal Singh and remaining share
was gifted to her grand son Rajendra Pal Singh. Thereby they
became entitled to the property by virtue of will and gift
respectively. So far as khata No.111 is concerned, s.22 of
the North-Western Provinces Tenancy Act, 1901, provides mode
of devolution. In the absence of the male lineal
descendants, the widow is entitled to succeed to the tenancy
rights and on her demise the daughter and daughter’s son are
entitled to the succession. Having succeeded to that
interest, the tenancy right of Champi got enlarged into the
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ownership right by her paying ten times land revenue by
operation of s. 134 of the U.P. Land Reforms Act. Thus, she
became absolute owner in respect of her 1/3rd share in Khata
no.111. Therefore, the question of applicability of sub-
section (2) of s.4 of the Hindu Succession Act does not
arise. The High Court, therefore, was not right in holding
that Shiv Devi having had no interest in the property, since
her husband Bhanwar Singh died in 1911, the respondents had
become owners by intestate devolution. Apeal Nos. 991-993/79
are accordingly allowed and appellants therein are entitled
to 1/3rd share in all the three Khata numbers.
Learned counsel for the respondents in C.A. Nos. 991-
993/79 placed reliance on the judgment of the single Judge
of the High Court reported in Kameshwar Singh (deceased by
L.Rs.) vs. Deputy Director of Consolidation, Pratapgarh and
others, 1983 ALJ 699. The ratio therein has no application
to the facts in these cases as s.174 of the Land Reforms Act
got attracted. But here, as stated earlier, Shiv Devi’s
limited right has been enlarged into absolute right under
s.14(1) of the Hindu Succession Act.
Civil Appeals No. 991-93/79 are allowed and Civil Apeal
No.2506/78 is dismissed. No costs.