Full Judgment Text
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PETITIONER:
SMT. MAINIA
Vs.
RESPONDENT:
DEPUTY DIRECTOR OF CONSOLIDATION & OTHERS
DATE OF JUDGMENT04/08/1989
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SHARMA, L.M. (J)
CITATION:
1989 AIR 1872 1989 SCR (3) 685
1989 SCC (4) 370 JT 1989 (3) 288
1989 SCALE (2)147
ACT:
United Provinces Tenancy Act, 1939.’ Sections 35, 36 and
180-Character of widow’s possession after
remarriage---Altered by operation of law--No further animus
required.
U.P. Zamindari Abolition and Land Reforms Act, 1950:
Sections 171 & 172--Succession in case of woman holding
interest inherited as a widow.
HEADNOTE:
One Chain Sukh died issueless. His interest as the
occupancy tenant of the land in dispute therefore devolved
upon his widow, Smt. Sukhia, in accordance with section 35
of the United Provinces Tenancy Act, 1939. A couple of years
after the death of Chain Sukh, Sukhia remarried Gopal Singh
in "Karwa" form according to the caste custom, prior to the
date of vesting, i.e., 1.7.1952, under the U.P. Zamindari
Abolition and Land Reforms Act, 1950. A son Chartder Pal,
respondent No. 4, was born to Sukhia. Sukhia continued to
remain in possession of this holding till her death in 1965.
The appellant is the sister of deceased Chain Sukh. A
dispute arose between the appellant and Chander Pal during
the consolidation proceedings under the U.P. Consolidation
of Land Holdings Act, each of them claiming interest to the
exclusion of the other. The Consolidation Officer held that
Smt. Sukhia on her remarriage lost her interest in the
holding and by virtue of section 171 of the Zamindari Aboli-
tion Act, Smt. Mainia being the sister of Chain Sukh inher-
ited the interest in the holding. The Settlement Officer,
Consolidation, dismissed Chander Pal’s appeal. The Settle-
ment Officer, however, held that a legal marriage of Smt.
Sukhia with Gopal Singh was not proved; that Smt. Sukhia
cultivated the land throughout as the widow of Chain Sukh,
and that, after her death the appellant inherrited it. In
revision, the Deputy Director Consolidation held that Smt.
Sukhia’s "Karva" with Gopal Singh not being proved to he a
legal marriage, the succession would he governed on the
basis that she was Chain Sukh’s widow at the time of her
death.
Chander Pal filed a writ under Article 226, and the High
Court
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686
while allowing the petition held that the consolidation
authorities erred in deciding the matter on the basis that
Smt. Sukhia’s marriage with Gopal Singh was not proved to he
legal. The High Court observed that in view of appellant
Smt. Mainia’s clear admission that Smt. Sukhia was remarried
to Gopal Singh in "Karwa" form, and that they had been
living together as husband and wife for several years, no
further proof of legality of the remarriage was necessary.
The High Court further held that the effect of the provi-
sions of the Tenancy Act was that her interest in the hold-
ing after her remarriage was in her own right and not as
widow of Chain Sukh, and therefore, by virtue of section
180(2) of the Tenancy Act she acquired an independent right
which did not devolve upon her death to Chain Sukh’s sister,
but to her son Chander Pal born to her after her remarriage
with Gopal Singh.
Before this Court it was contended on behalf of the
appellant that Smt. Sukhia’s interest in the holding contin-
ued till her death only as widow of Chain Sukh since her
initial interest in the holding was by devolution as widow
of Chain Sukh under section 35 of the Tenancy Act; that Smt.
Sukhia’s remarriage with Gopal Singh was not proved; that
since the possession of Smt. Sukhia was recorded throughout
as widow of Chain Sukh, there was no occasion for attracting
the provisions contained in section 180(2) of the Tenancy
Act; and that on her death in 1965 the succession was gov-
erned by section 172 read with section 171 of the Zamindari
Abolition Act. In reply, it was contended that remarriage of
Smt. Sukhia prior to the date of vesting, i.e., 1.7. 1952,
under the U.P. Zamindari Abolition and Land Reforms Act,
1950 being the admitted case of the appellant, Smt. Mainia,
herself, the appellant could not now he permitted to take
contrary stand; that the possession of Smt. Sukhia in the
holding at the time .of her death not being as a widow of
Chain Sikh but in her own right, the succession was governed
not by section 172 but by section 174 of the Zamindari
Abolition Act under which Chartder Pal inherited Smt. Suk-
hia’s interest in the holding as her son.
Dismissing the appeal, this Court,
HELD: (1) The case of the appellant before the Consoli-
dation Officer was put up on the basis of Smt. Sukhia being
remarried to Gopal Singh and Chander Pal being the son born
to Smt. Sukhia after her remarriage could not claim to be a
legal heir of Smt. Sukhia’s first husband Chain Sukh. The
High Court was, therefore. right in taking the view that the
matter must he decided on that basis. [691F-G]
(2) The mere fact of Smt. Sukhia’s name being shown in the
687
family register as widow of Chain Sukh till the time of her
death in 1965 did not have the effect of continuing Smt.
Sukhia’s status as widow of Chain Sukh even after she had
become the wife of Gopal Singh as a result of her remar-
riage. [691H-692A]
BadriPrasad v. Deputy Director Consolidation, A.I.R.
1978S.C. 1557, referred to.
(3) Section 36 of the Tenancy Act, which clearly pro-
vides for succession to a female tenant holding an interest
inherited as a widow in the case of her marriage thereafter,
or, in other words, remarriage, was attracted in the present
case. [692F]
(4) According to section 36, on the remarriage of Smt.
Sukhia with Gopal Singh the interest devolved in accordance
with the order of succession laid down in section 35 on the
heirs of the last male descendant, that is, Chain Sukh but
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appellant Smt. Mainia, married sister of Chain Sukh, not
being one of the heirs of Chain Sukh according to section 35
of the Tenancy Act, the interest did not devolve on Smt.
Mainia.
(5) The continued possession of Smt. Sukhia after her
remarriage attracted section 180 of the Tenancy Act. [693D]
(6) Admittedly, no suit as contemplated by sub-section
(2) of section 180 of the Tenancy Act was brought at any
time against Smt. Sukhia and the prescribed period of limi-
tation for such a suit expired prior to her death in 1965.
Sub-section (2) of section 180 of the Tenancy Act was,
therefore, clearly attracted and Smt. Sukhia had become a
hereditary tenant by virtue of that section with the further
consequences flowing therefrom. [694A-B]
(7) The legal consequence flowing from sections 36 and
180 of the U.P. Tenancy Act is enough to indicate that the
character of widow’s possession after her remarriage altered
by operation of law and any further animus is not required
to bring about the effect of the statutory provisions which
ensue on expiry of the limitation prescribed for a suit to
evict her. [694G]
Ram Jivan v. Smt. Phoola (dead) by Lrs., [1976] 3 SCR
262; Jagarnath and others v. Deputy Director of Consolida-
tion Gorakhpur and others, [1976] AWC 654 and Chhiddoo Singh
v. Deputy Director of Consolidation & others., [1976] AWC
809, distinguished.
688
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 955 of
1981.
From the Judgment and Order dated 11.5.79 of the Allaha-
bad High Court in W.P. No. 3048 of 1973.
P.N. Lekhi and M.K. Garg for the Appellant.
K.M. Sinha, Deepak Jaiswal and Pramod Swarup for the
Respondents.
The Judgment of the Court was delivered by
VERMA, J. This appeal by special leave under Article 136
of the Constitution of India is against the judgment of a
learned Single Judge of the Allahabad High Court in Writ
Petition No. 3048 of 1973 decided on May 11, 1979.
The subject-matter of the dispute is a holding compris-
ing of Khata No. 141 in village Khera, Laxmipur, Pargana
Kashipur in District Naimtal of which one Chain Sukh was
initially the occupancy tenant. The said Chain Sukh died
issueless prior to the date of vesting, that is, 1.7.1952
under the U.P. Zamindari Abolition and Land Reforms Act,
1950 (hereinafter referred to as "the Zamindari Abolition
Act") survived by his widow, Smt. Sukhia. The interest of
Chain Sukh as the occupancy tenant of the holding devolved
upon his widow, Smt. Sukhia, in accordance with section 35
of the United Provinces Tenancy Act, 1939 (hereinafter
referred to as "the Tenancy Act") in the absence of any male
lineal descendant of Chain Sukh. The appellant, Smt. Mainia,
is the sister of deceased Chain Sukh. Even according to the
appellant, Smt. Mainia, Chain Sukh’s widow, Smt. Sukhia,
remarried Gopal Singh in "Karwa" form according to the caste
custom about two years after the death of Chain Sukh and a
son, Chander Pal, respondent No. 4, was born to Sukhia
during her wedlock with Gopal Singh. Smt. Sukhia continued
to remain in possession of this holding till her death in
1965.
A dispute arose between appellant, Smt. Mainia and
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respondent No. 4, Chander Pal, during the consolidation
proceedings under the U.P. Consolidation of Land Holdings
Act in respect of this holding, each of them claiming sole
interest therein to the exclusion of the other. Ultimately,
the Consolidation Officer, Afzalgarh, by his order dated
29.1.1972 (Annexure III) passed under section 9-A of the Act
689
dismissed Chander Pal’s claim to the holding. The Consolida-
tion Officer held that Smt. Sukhia on her remarriage with
Gopal Singh lost her interest in the holding and by virtue
of section 171 of the Zamindari Abolition Act, appellant,
Smt. Mainia, being the sister of Chain Sukh inherited the
interest in the holding. It was held that Chander Pal, not
being the son of Smt. Sukhia from Chain Sukh but the son
born to Smt. Sukhia after her remarriage with Gopal Singh,
could not inherit as a heir of Chain Sukh. The Settlement
Officer, Consolidation, Nainital dismissed Chander .Pal’s
appeal under Section 11 against the order of the Consolida-
tion Officer by order dated 14.2.1972 (Annexure IV). Howev-
er, the Settlement Officer held that even though Smt. Sukhia
lived in the house of Gopal Singh for several years there is
no positive evidence of her remarriage with Gopal Singh and
therefore a legal marriage of Smt. Sukhia with Gopal Singh
is not proved. It was held that Smt. Sukhia cultivated the
land throughout as the widow of Chain Sukh and therefore
Chain Sukh’s sister Smt. Mainia inherited it after the death
of Smt. Sukhia. A revision by Chander Pal to the Deputy
Director Consolidation, Moradabad, Camp Kashipur, under
Section 48 was also dismissed by order dated 15.11.1972
(Annexure V). It was observed that Smt. Mainia in her reply
dated 10.12.1970 had stated that Smt. Sukhia did "Karwa"
with Gopal Singh but Smt. Sukhia had been shown in the
family register as widow of Chain Sukh which shows that Smt.
Sukhia was treated as a widow of Chain Sukh till the time of
her death. It was held that Smt. Sukhia’s "Karwa" with Gopal
Singh not being proved to be a legal marriage, the succes-
sion would be governed on the basis that she. was Chain
Sukh’s widow at the time of her death.
A writ petition under Article 226 of the Constitution
was then filed by Chander Pal in the High Court which has
been allowed by the impugned judgment dated May 11, 1979.
The High Court has quashed the orders passed by the Consoli-
dation Authorities and directed the Deputy Director (Consol-
idation) to decide the revision of Chander Pal afresh on the
basis of the decision given in the writ petition. The High
Court has held that the consolidation authorities erred in
deciding the matter on the basis that Smt. Sukhia’s marriage
with Gopal Singh was not proved to be legal and, therefore,
Smt. Sukhia’s possession of the holding till the time of her
death was merely as widow of Chain Sukh. It was pointed out
that in view of appellant Smt. Mainia’s clear admission that
Smt. Sukhia was remarried to Gopal Singh in "Karwa" form,
according to caste custom, after Chain Sukh’s death and that
they had been living together as husband and wife for sever-
al years no further proof of legality of the remarriage was
necessary. Reliance was placed
690
by the High Court on a decision of the Supreme Court in
Badri Prasad v. Deputy Director Consolidation, A.I.R. 1978
S.C. 1557 for reaching its conclusion and it was held that
this strong presumption of validity of Smt. Sukhia’s remar-
riage with Gopal Singh was not rebutted by the entry in the
family register which continued to show Smt. Sukhia as the
widow of Chain Sukh. Consequently, it was held by the High
Court that the finding of the consolidation authorities that
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Smt. Sukhia’s interest in the holding continued to be as
widow of Chain Sukh was a manifest error of law. The High
Court then proceeded to examine the legal consequences of
Smt. Sukhia remarriage with Gopal Singh prior to the date of
vesting i.e., 1.7.1952 under the Zamindari Abolition Act and
her continuous possession over the holding after her remar-
riage. It was held by the High Court that the effect of the
provisions of the Tenancy Act was that her interest in the
holding after her remarriage was in her own right and not as
widow of Chain Sukh; and therefore, by virtue of section
180(2) of the Tenancy Act she acquired an independent right
which did not devolve upon her death to Chain Sukh’s sister,
appellant Smt. Mainia, but to her son Chander Pal born to
her after her remarriage with Gopal Singh. It is on this
basis that the High Court has directed the Deputy Director,
Consolidation, to decide respondent No. 4, Chander Pal’s
revision afresh. Hence this appeal by special leave.
Shri P.N. Lekhi, learned counsel for the appellant, Smt.
Mainia, has assailed the decision of the High Court substan-
tially on the ground that Smt. Sukhia’s interest in the
holding continued till her death only as widow of Chain Sukh
since her initial interest in the holding was by revolution
as widow of Chain Sukh under section 35 of the Tenancy Act.
Learned Counsel for the appellant also contended before us
that Smt. Sukhia’s remarriage with Gopal Singh was not
proved and, therefore, the consequences of remarriage, if
any, did not arise. He argued that Smt. Sukhia’s name was
recorded throughout only as the widow of Chain Sukh which
negatived the case of her remarriage with Gopal Singh after
the death of Chain Sukh. He argued that since the possession
of Smt. Sukhia till her death in 1965 was as widow of Chain
Sukh, there was no occasion for attracting the provisions
contained in section 180(2) of the Tenancy Act. It was urged
that on the death of Smt. Sukhia in 1965 the succession was
governed by section 172 read with section 171 of the Zamind-
ari Abolition Act on account of which by virtue of clause
(m) of section 171 appellant Smt. Mainia being the married
sister of Chain Sukh inherited the interest in the holding
instead of respondent No. 4, Chander Pal by virtue of sec-
tion 174 of that Act.
691
In reply, Shri K.M. Sinha, learned counsel for re-
spondent No. 4 contended that remarriage of Smt. Sukhia with
Gopal Singh after the death of Chain Sukh prior to the date
of vesting i.e., 1.7. 1952 under the Zamindari Abolition Act
being the admitted case of appellant Smt. Mainia herself,
the appellant cannot now be permitted to take a contrary
stand. It was urged that the conclusion of the High Court is
correct and that consequence is obvious from the provisions
of the Tenancy Act. On this basis, it was urged that the
possession of Smt. Sukhia in the holding at the time of her
death not being as a widow of Chain Sukh but in her own
right the succession is governed not by section 172 but by
section 174 of the Zamindari Abolition Act under which
respondent No. 4, Chander Pal, inherited Smt. Sukhia’s
interest in the holding as her son.
In our opinion, the contention of learned counsel for
the appellant cannot be accepted and on the case set up by
Smt. Mainia herself no fault can be found with the reasoning
or conclusion of the High Court.
It is obvious even from the orders of the consolida-
tion authorities that Smt. Sukhia’s remarriage in "Karwa"
form according to the caste custom with Gopal Singh a couple
of years after the death of Chain Sukh was pleaded by Smt.
Mainia herself in her reply dated 10.12.1970 as mentioned in
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the order dated 15.11.1972 (Annexure V) by the Deputy Direc-
tor (Consolidation) while deciding Chander Pal’s revision.
The controversy between the parties before the consolidation
authorities was at best only about the validity of the
remarriage and not its factum. Moreover, the order of the
Consolidation Officer dated 29.1. 1972 (Annexure III) also
indicates that before the Consolidation Officer appellant,
Smt. Mainia, did not dispute even the validity of Smt.
Sukhia’s remarriage with Gopal Singh and the case of the
appellant before the Consolidation Officer was put on the
basis of Smt. Sukhia being remarried to Gopal Singh and
Chander Pal being the son born to Smt. Sukhia after her
remarriage so that Chander Pal could not claim to be a legal
heir of Smt. Sukhia’s first husband Chain Sukh. The High
Court was, therefore, right in taking the view that the
matter must be decided on the basis of Smt. Sukhia being
remarried to Gopal Singh a couple of years after the death
of her first husband Chain Sukh and the question of factum
or validity of Smt. Sukhia’s remarriage with Gopal Singh did
not really arise. This being so, the mere fact of Smt.
Sukhia’s name being shown in the family register as widow of
Chain Sukh till the time of her death in 1965 did not have
the effect of continuing Smt. Sukhia’s status as widow of
Chain Sukh even after she
692
had become the wife of Gopal Singh as a result of her remar-
riage.
The effect of the statutory provisions on the continued
possession of Smt. Sukhia in this altered status has, there-
fore, to be examined.
The relevant provisions of the Tenancy Act may now be
noticed. Admittedly, succession to the interest of Chain
Sukh on his death was governed by section 35 of the Tenancy
Act according to which the interest of Chain Sukh in the
holding devolved upon Smt. Sukhia as his widow in the ab-
sence of any male lineal descendant in the male line of
descendant. Section 36 of the Tenancy Act is as under:
"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, notwithstanding 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 .........
(emphasis supplied)"
The applicability of section 36 in the present case was
disputed by the learned counsel for the appellant. We are
unable to agree. Section 36 clearly provides for succession
to a female tenant holding an interest inherited as a widow
in the case of her marriage thereafter, or, in other words,
remarriage. The learned counsel for the appellant contends
that this is not so. In our opinion, the argument overlooks
the clear words "in the case of a tenant inheriting as a
widow .... marries" which show that the situation where a
female tenant who inherited as a widow marries, or, in other
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words, remarries is specifically covered by section 36. The
contrary construction placed on section 36 by the learned
counsel for the appellant would render these words redun-
dant. The word ’marries’ instead of the word ’remarries’ has
been used for the obvious reason that it refers both to a
widow as well as a daughter.
We have, therefore, no doubt that section 36 was attracted
in the
693
present case when Smt. Sukhia remarried Gopal Singh after
the death of Chain Sukh. Section 36 also overrides section
45 since it clearly says, "notwithstanding anything in
section 45" which provides generally for extinguishment of
the interest of a tenant in the manner specified therein.
The argument of the learned counsel for the appellant that
clause (a) of section 45 deals with the situation of death
of a tenant and, therefore, attracted, in the present case,
on the death of Smt. Sukhia in 1965 is untenable in view of
the express provision made in section 36.
The result is that according to section 36 on the remar-
riage of Sukhia with Gopal Singh the interest devolved in
accordance with the order of succession laid down in section
35 on the heir of the last male descendant, that is, Chain
Sukh but appellant Smt. Mainia, married sister of Chain
Sukh, not being one of the heirs of Chain Sukh according to
section 35 of the Tenancy Act, the interest did not devolve
on Smt. Mainia.
The continued possession of Smt. Sukhia thereafter
attracted section 180 of the Tenancy Act, the relevant
portion of which is as under:
180(1) A person taking or retaining
possession of a plot of land without the
consent of the person entitled to admit him to
occupy such plot and otherwise than in accord-
ance with the provisions of the law for the
time being in force, shall be liable to eject-
ment under the section on the suit of the
person so entitled, and also to pay damages
which may extend to four times the annual
rental value calculated in accordance with the
sanctioned rates applicable to hereditary
tenants:
XXX XXX
XXX
(2) If no suit is brought under this section,
or if a decree obtained under this section is
not executed, the person in possession shall
become a hereditary tenant of such plot, or if
such person is a co-sharer, he shall become a
khudkashtholder, on the expiry of the period
of limitation prescribed for such suit or for
the execution of such decree, as the case may
be:
XXX XXX XXX."
694
Admittedly, no suit as contemplated by sub-section (2)
of section 180 of the Tenancy Act was brought at any time
against Smt. Sukhia and the prescribed period of limitation
for such a suit expired prior to her death in 1965. Sub-
section (2) of section 180 was, therefore, clearly attracted
and Smt. Sukhia had become a hereditary tenant by virtue of
section 180(2) of the Tenancy Act with the further conse-
quences flowing therefrom. The case of the appellant is
based on the applicability of section 172 of the Zamindari
Abolition Act which governs succession ’in the case of a
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woman holding an interest inherited as a widow etc- on the
ground that Smt. Sukhia’s interest upto the time of her
death was only as the widow of Chain Sukh. It is by virtue
of section 172 that the claim is made by the appellant. Smt.
Mainia as the married sister of Chain Sukh under clause (m)
of section 171. We have already indicated that the founda-
tion of Smt. Mainia’s claim is non-existent. If such a
situation, the appellant’s claim was rightly negatived by
the High Court.
The learned counsel for the appellant referred to the
decision of this Court in Ram Jivan v. Smt. Phoola (dead) by
Lrs. & Ors., [1976] 3 SCR 262. In view of the above conclu-
sion, obviously that decision has no application. The
learned counsel also referred to two Single Bench decisions
of the Allahabad High Court, namely, Jaganath and others v.
Deputy Director of Consolidation Gorakhpur and others,
[1976] AWC 654 and Chhiddoo Singh v. Deputy Director of
Consolidation & others, [1976] AWC 809. The first decision
did not involve this point. The learned single Judge in the
other decision under provisions of the Agra Tenancy Act took
the view that when a widow initially enters into possession
as a limited owner, the character of her subsequent posses-
sion after remarriage cannot change in the absence of evi-
dence of a change in her animus. It was held that in such a
case it is for the widow to show that later she had asserted
her absolute right and was possessing adversely as an abso-
lute owner in order to prescribe for absolute ownership. It
is sufficient for us to say that the legal consequence
flowing from sections 36 and 180 of the U.P. Tenancy Act is
enough to indicate that the character of widow’s possession
after her remarriage altered by operation of law and any
further animus is not required to bring about the effect of
the statutory provisions which ensue on expiry of the limi-
tation prescribed for a suit to evict her. That decision
does not indicate consideration of the effect of a provision
like section 180(2) of the Tenancy Act, assuming there was
such a provision in the Agra Tenancy Act and also that
section 24 of the Agra Tenancy Act was similar to section 36
of the U.P. Tenancy Act. These decisions are clearly distin-
guishable. However, if the other decision
695
under the Agra Tenancy Act is read as taking a contrary
view, we are unable to subscribe to that view.
In the result, the appeal fails and is dismissed. Howev-
er, in the circumstances of the case, we make no order as to
costs.
R.S.S. Appeal dis-
missed.
696