Civil Appeal No 1403N of 1973
From the Judgment and Order dated 1241973 of the Allahabad High Court in Second Appeal No 2866 of 1965
S N Singh and TN Singh for the Appellant
Rameshwar Nath and Ravinder Nath for the Respondents
The Judgment of the Court was delivered by THAKKAR J
The controversy in this appeal centers around the interpretation of Section 64 of the Tehri Garhwal Buhmi Sambandhi Adhikar Niyam enacted by the erst while State of Tehri Garhwal which continued to remain in force even after its merger in the State of Uttar Pradesh
The trial court came to the conclusion that the peti tioner was entitled to become the kahikari  subtenant of the respondents who were maurusidars  head tenants of the land in question by virtue by the said provision and decreed the plaintiff s suit
The lower appellate court and the High Court took a contrary view and dismissed the suit
The original plaintiff has preferred the present appeal by special leave and has contended that the interpretation placed by the trial court was the correct interpretation of the relevant provision and that the Lower Appellate Court and the High Court were in error in taking the contrary view
618 The facts in so far as material are not in dispute
All the Courts have concurred in the finding that the petitioner was a sapinda  of Jeet Ram the original khaikari  sub tenant who died issueless
From the age of about 12 or 13 years the appellant had started living with deceased Jeet Ram
He was sharing food and shelter with Jeet Ram and was engaged in cultivating the land in question along with Jeet Ram during his life time
He had lived as a member of Jeet Ram s family and at the time of the death of Jeet Ram the obsequies were performed by him
Thereafter he was looking after the widow of Jeet Ram
These facts having been firmly established the trial court upheld the appellant s right to become khaikari  sub tenant of the respondents in respect of the land in question in the context of the right conferred by Section 64 of the Act
The said provision is in Hindi MRIT KHIAKAR KAR BHAI YA SAPINDA WARISH BHAI BHATEEJA AADI KEWAL US DASHA MEN ADHIKARI HOGA JOB KI WAH US MIRT KHAIKAR KE SATH JEEVIT SAMAY MEN ABIBHAKT KUL KI REETI SE USKE SHAREEK RAHA HO
 Translated in English it reads as under Brother or Sapinda brother newhew etc of the deceased sub tenant will be entitled if he was jointly living with the deceased during his life time in the manner of a joint family
 An analysis of the aforesaid provision reveals that in order to establish the claim to be recognized as a khaikari  under the said provision one must establish that 1 He is a sapinda  of the deceased sub tenant such as the brother or nephew
2 He must have been living as a member of the family with the deceased during his life time in the manner of a member of the joint family
The Trial Court took the view that inasmuch as the petitioner was admittedly a sapinda of deceased Jeet Ram and inasmuch as he had been living jointly with the deceased during his life time had been 619 sharing of food and shelter with him and had even performed the obsequies of Jeet Ram he fulfilled the conditions prescribed by the said provision and was entitled to become a sub tenant of the head tenant
The Lower Appellate Court and the High Court have taken the view that it is not suffi cient for the appellant to have shared the food and shelter and carried on the agricultural operations with the de ceased
It must be shown that he was in fact a member of the joint family
The High Court has made sought support from the reasoning that section 64 is applicable not only to Hindus but also to Muslims and Christians
With respect to the High Court this assumption is altogether unwarranted
The expression sapinda  employed in section 64 is a clear pointer to the conclusion that the said section is designed to apply only to Hindus
The expression sapinda  is pecul iar to traditional Hindu Law and it would be altogether inapposite in the context of citizens of Muslim or Christian faith
Failure to realize this aspect impelled the High Court to take a view contrary to the view taken by the trial court as is evident from the following passage As the provisions of section 6 4 of the Tehri Garhwal Bhumi Sambandhi Adhikar Niyam are applicable not only to Hindus but also to Muslims and Christians etc
who may be living in Tehri Garhwal the words Joint Hindu Family were not used and instead the words ABHI BHAKT KUL KEE REETI SE USKE SAATH SHAREEK RAHA HO were used
These words when applicable to a Hindu must mean a person who was a member of a Joint Hindu Family of the deceased Khaikar in this case Jeet Ram
 It appears that the Lower Appellate Court and the High Court altogether missed to grasp the intendment and purpose of the provision
In the absence of such a provision an issueless tiller would experience great hardship for there would be nobody to assist him in his work in his lifetime look after him in his old age and to take care of his widow after his death
That is why even if a separated brother or nephew were to live with him during his life time share the food and shelter with him and assist him in cultivation just as a member of the Undivided Hindu Family would be expected to do the benefit of becoming a sub tenant is made available to him
Otherwise there was no point in providing that unless a sapinda  lived with him as if he was a member of the joint family  he would not be entitled to such a right
In fact the provi sion has evidently been enacted with a view to relieve the distress of an issueless agricul turist who is separate from his joint 620 family so that any one of his sapindas living with him as a member of the family assisting him in agriculture and looking after him would be entitled to become a khaikar  on his demise
The expression JEEVIT SAMAY MEN ABIBHAKT KUL KI REETI SE USKE SHAREEK RAHA HO  clearly provides a clue to the intention of the legislature to benefit such a person who has lived with the issueless khaikar and shared with him food shelter labour as also joys and sorrows along with him as if  he was a member of the joint family without in fact being one
The prospect of acquiring such a right would provide motivation to look after and render services to the issueless land holder for it would be unreasonable to expect him to do so selflessly the world being what it is
We are therefore of the opinion that the lower appellate court and the High Court have entirely misunderstood the provision in hold ing that only a member of an Undivided Family could claim the benefit of section 64
If such were the case there was no need to make such an elaborate provision
It would have been sufficient to say that a member of his joint family alone could claim such a right
We are satisfied that the trial court was right in upholding the claim of the appellant whereas the lower appellate court and the High Court were in error in taking a contrary view
The appeal is therefore allowed
The judg ment and order of the lower appellate court and the High Court are set aside
The judgment and decree passed by the trial court are restored
There will be no order regarding costs
PSS Appeal allowed


Summary:
Section 64 of the Tehri Garhwal Bhumi Sambandhi Adhi kar Niyam provides that brother or sapida  brother nephew etc of the deceased sub tenant will be entitled to be recognised as a khaikari  if he was jointly living with the deceased during his life time in the manner of a member of a joint family
The appellant a sapinda  of the original Khaikari  sub tenant had started living with the deceased from the age of 12 or 13 years as a member of the latter s family
He has been sharing food and shelter with the deceased and was engaged in cultivating the land along with the deceased during his lifetime
At the time of the death of the later the obsequies were also performed by him
The trial court came to the conclusion that the appel lant fulfilled the conditions prescribed by s64 of the Act and was thus entitled to become khaikari  sub tenant of the respondent head tenant
The lower appellant court and the High Court took the view that s64 was applicable not only to Hindus but also to Muslims and Christians and therefore it was not sufficient for the appellant to have shared the food and shelter and carried on the agricultural operations with the deceased and that it must be shown that he was in fact a member of the joint family
Allowing the appeal the Court HELD The High Court was in error in holding that only a member of an undivided family could claim the benefit of s64 of the Tehri Garhwal Bhumi Sambandhi Adhikar Nayam
620C D Section 64 of the Act is designed to apply only to Hindus
The expression sapinda  employed in that provision is peculiar to traditional 617 Hindu Law and it would be altogether inapposite in the context of citizens of Muslim or Christian faith
619C The expression Jeevit Samay Men Abibhakt Kul Ki Reeti Se Uske Shareek Raha Ho used in s64 clearly provides a clue to the intention of the legislature to benefit such a sapinda  who had lived with the issueless khaikar  and shared with him food shelter laying as also joys and sorrows along with him as if  he was a member of the joint family without in fact being one
Even if a separate brother or newhew were to live with an issueless tiller during his lifetime just as a member of the Undivided Hindu Family would be expected to 40 the benefit of becoming a sub tenant of the head tenant is made available to him
620A C 619G