Case: Richpal Singh and Another Vs. Desh Raj Singh and Others

2. The facts giving rise to the aforesaid question may be stated. One Smt Ram Kali, widow of Tikam Singh, was theof the plots (agricultural land) in dispute situated in villages Agaota and Khaiya Khera in District Bulandshahr (U.P.). On June 14, 1945 Smt. Ram Kali who was a Sirdar and a disabled person falling within s. 157 (1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called "the Act") executed a registered deed of lease for a period of S years in favour of Uttam Singh (theof the respondents) but before the expiry of the period of S years she died in August, 1945 and Dan Sahai (her husbands real brother andof the appellants) inherited he r interest. Dan Sahai was also a disabled person within the meaning of s. 157(1) of the Act. It seems that after the expiry of the period of the registered lease Uttam Singh and Murli Singh continued to hold the land as tenants from year to year under Dan Sahai. In consolidation proceedings a question arose whether Uttam Singh and Murli Singh, who were lessees under Smt. Ram Kali and Dan Sahai acquired the status of Sirdars or they remained Asamis of the plots in dispute. The case of Dan Sahai was that they were Asamis and not adhivasis entitled to be treated as Sirdars under s. 240 of the Act and that depended upon whether as tenants or occupants of the plots in dispute their case fell within the provisions of s. 21(1 ) (h) of the Act. The contention of Dan Sahai was that since Smt. Ram Kali was a disabled person on the date of letting and since he who succeeded her was also a disabled person on April 2, 1946, the lease in favour of Uttam Singh and Murli Singh would fall within section 21(1) (h) and as such Uttam Singh and Murli Singh shall be deemed to be Asamis. On the other hand the contention on behalf of Uttam Singh and Murli Singh was that theshould not only be a disabled person on both the dates mentioned in(a) of cl. (h) of s. 21(1? (being the date of letting as also April 9, 1946) but the same landlord should continue to live on the date immediately preceding the date of vesting (which is 1under the Act) a nd since in the instant case the same landlord who had let out the plots and who was disabled person on the date of letting had not continued to live on the date immediately preceding the date of vesting s. 21(1) (b) was totally inapplicable and , therefore, they were entitled to be treated as Sirdars. The Division Bench of the Allahabad High Court in Special Appeals Nos.of 1971 accepted the contention raised by counsel on behalf of Uttam Singh and Murli Singh (the respondents predecessors) relying on the view taken by the Full Bench in Smt. Maya v. Raja Dulaji and others (1) and decided the appeals in their favour by holding that they were not Asamis but had becomethe outset it may be stated that it was not disputed either in the lower courts or before us that both Smt. Ram Kali as well as Shri Dan Sahai who succeeded to her interest in the plots after her death were disabled persons under s. 157((1) of the Act. In fact it was accepted by both th e sides that on the date of letting (being 14th June, 1945) Smt. Ram Kali, the then land holder was a disabled person and on 9th April, 1946 (being the other relevant date under(a) of clause (h) of section 21(1) Dan Sahai, the then landholder, was a disabled person who continued to be the land holder upto the date of vesting, and the question is whether in such 8 case the occupation of the plots by Uttam Singh and Murli Singh under the lease from both of them would fall within the provisions of s. 21(1) (h) of the Act.

Reasoning:
In Smt. Maya v. Raja Dulaji and others (supra) the facts were that the disputed plots belonged to one Bijain and were inherited on his death by his widow Smt. Lakshmi and when Smt. Lakshmi died her minor unmarried daughter Kumari Maya became theHer elder sister Saheb Kunwar acting as her guardian executed a registered lease of the plots in favour of the plaintiffs (Ram Charan and others) on 15.10.1947 for a period of five years (a case falling under subcl. (b) of cl. (h)). Later on Maya was also married to her sisters husband Thakurdas who was admitted to the holding aswith Maya, with the consent of the Zamindar in the year 1948. Thus on the date of vesting (1.7.1952) both Maya ( who was still minor and disabled person) as well as her husband Thakurdas were theof the plots in question. The lessee plaintiffs filed a suit in the year 1954 for a declaration that they had become Adhivasis of the land on the comin g into force of the U.P.Z.A. and L.R. Act and had subsequently acquired Sirdari rights on the passing of the U.P. Act XX of 1954 The suit was decreed by both the Courts below and hence Maya defendant preferred a second appeal to the High Court . The question raised for determination was whether for the purposes of s. 21 ( 1) (h) the disability of the landholders who were in existence on the date of vesting was material or the disability of thewho let out the land was a de ciding factor? The Court noticed that s. 21(1) (h) had been introduced in the Act for the first time by U.P. Act XVI of 1953 with retrospective effect from July 1, 1952 and was later on amended by U.P. Act XX of 1954 and has thereafter con tinued in its present form. Section 21(1) (h), as originally enacted, in express terms required that "thelandholder or if there are more than onelandholder all of them were person or persons belonging, both on the date of letting and on th e date immediately preceding the date of vesting, to any one or more of the classes mentioned in(2) of s. 10 or cl. (viii) of(I) of s. 157". As a result of the amendment made by Act XX of 1954 the words "both on the date of letting and on the date immediately preceding the date of vesting" were omitted. In other words, by the amendment the requirement that disability of theshould subsist on the date immediately preceding the date of vesting was deleted. The Fu ll Bench accepted the position that for purposes of s. 21(1) (h), in its present form, the disability of theneed not continue or subsist on the date immediately preceding the date of vesting and might cease on or before the date of v esting but took the view that in the case before it there were twoon the date immediately preceding the date of vesting, namely, Smt. Maya and her husband Thakurdas, that a new body ofhad come into existence subsequent to the date of letting and that all of them were notwho had let out the land as disabled person and, therefore, the plaintiffs became Adhivasis and the defendants were not entitled to the benefit of s. 21(1) (h) of the Act. In other word s, the Full Bench has been of the view that for purposes of s. 21(1) (h) it is necessary that theon the date immediately preceding the date of vesting must be the same persons as those who let out the land and suffered from disability on the date of letting, and also on A April 9, 1946 in case the letting was before that date. In other words, the identity of thelandholder or landholdersmust remain unchanged up to the date ofreading such a requirement into the provision the Full Bench has given two reasons: (a) that such a requirement arises on construction of certain words used in cl. (h) (vide: para 17 of the Judgment) and (b) that the protection given to a disabled landholder was inte nded to be a personal protection granted to the very individual who let out the land as a disabled person and this was warranted by a historical survey of parallel provisions contained in the preceding Tenancy Laws in U.P. (vide: Para 19). According to t he Full Bench the crucial words used in cl. (h) are "where thelandholder or if there are more than onelandholder all of them were person or personsbelonging" to any one or more of the classes of disabled persons under s. 157(1) and the Full Bench h as reasoned "the word are and the word them together with the word were in the aforementioned phrase clearly show that the intention of the Legislature was that on the date of vesting theshould be the very person who was the landholder on the relevant dates, to earn the benefit of cl. (h) of s. 21(1)". The Court observed that s. 21(1) (b) could bear the interpretation suggested by counsel for Smt. Maya only if the words or theirwere added b efore the words "all of them". The Court has further stated that historical survey of the parallel provisions contained in the preceding Tenancy Laws showed that the protection given to a disabled person had always been in the nature of a personal protection granted to the very individual who let out the land as a disabledand the protection ceased to be available when the identity or personality of that landholder is changed and in that behalf reliance was placed on certain provisions of the Agra Tenancy Act, 1926 and U.P. Tenancy Act, 1939. In our view neither reason holds good for sustaining the literal construction placed upon the provision by the Fullis true that cl. (h) contains the phrase "where the landIn other words, the expression landholder who obviously is a possessor of interest in land under s. 3(11) means a person to whom rent is payable, and under s. 3(1) by legal fiction it shall include hisest to whom the rent was or is payable. It is such definition that will have to be read in the U.P .Z.A. and L.R. Act wherever that expression occurs. It is thus obvious that the expression landholder occurring in s. 21(1) (h) must mean a person to whom rent is payable and by fiction would include hisRead in this light there would be no question of adding the wordof the landholderin s. 21(1) (h) as that would be implicit in the term landholder on account of the deeming provision of s. 3(1) read with s. 3(11) of the Tenancy Act, 1939. It does appear that this aspect of the matter was not brought to the notice of the Full Bench when it construed the concerned crucial phrase. Moreover after the amendment effected by Act XX of 1954 the thrust of cl. (h) is on thelandholder or landholdersbeing disabled persons on the material datess. 157(1) permits leases by disabled persons and says that a Bhumidhar or an Asami holding land in lieu of maintenance allowance under s. 11, who is a disabled person falling under any of the clauses (a) to (g), may let the whole or any part of his holding; and the proviso thereto is very important which runsthat in the case of a holding held jointly by more perso ns than one, but one or more of them but not all are subject to the disabilities mentioned in clause (a) to (g), the person or persons may let out his or their share in the holding.s. (2) provides that where any share of a holding has been let out under the aforesaid proviso the Court may on an application of the Asami or thedetermine the share of the lessor in the holding and partition the same. Having regard to the aforesaid proviso under which even in the case of a joint holding a lease of his share by a disabledis permissible and the same is liable to be separated by a partition it is obvious that the expression "all of them" must refer to all suchlders who were disabledon the material dates. When under the proviso to s 157(1) a lease of his share by a disabledin joint holding (held alongwith aperson) is expressly permitted and under s. 157(2) the Court has to determine such share of the disabled lessor and partition the same on an application being made in that behalf, it is difficult to accept that the Legislature intended to deprive the protection of s. 21(1) (h) to such disabled landholder simply because on the date immediately preceding the date of vesting such landholder comes to hold the land jointly with some other non. In other words on the facts found in the Full Bench case when on the date of l etting the entire holding belonged to Smt. Maya who was a disabled person and on the date of vesting she alongwith her husband Thakurdas (aperson) became joint holder, could Smt. Maya at any rate to the extent of her share in the joint ho lding be denied the benefit of s. 21(1) (h) notwithstanding the proviso to s. 157(1) and s. 157(2) being in the Statute ? The answer is obviously in the negative. In fact in view of the fact that on the material date (being the date of lettin g) the entire holding belonged to Smt Maya the disabled person, and having regard to the deeming provision which has to be read in the definition of landholder and having regard to the thrust of amended cl. (h) which does not require that thebe a disabled person on the date of vesting, the benefit of s. 21 (1) (h) should have been extended or made available in respect of the entire holding. In other words, on true construction of the crucial phrase occurring in cl. (h) it is not possible to read into the provision the additional requirement, namely, that the identity of thelandholder or landholdersmust remain unchanged up to the date ofto the second reason the Full Bench ha s observed that a historical survey of parallel provisions of the Agra Tenancy Act 1926 and U.P. Tenancy Act, 1939 supported the conclusion that protection was granted only to the very individual who let out the land as a disabledand the protection ceased when the identity of the personality of thatchanged and in that behalf reference was made to s. 29(6) and (7) of the former Act and s. 41 (2) of the latter Act. Now apart from the fact that the scheme o f the U.P.Z.A. and L.R. Act is different from these two earlier enactments, a careful analysis of the two provisions in the earlier enactments will clearly show that in each of the provisions express words had been used conferring personal righ ts on the individuals concerned which is not the case with s. 21(1) (h) of the Act.Having regard to the above discussion we are of the opinion that the view taken by the Full Bench of Allahabad High Court in Smt. Maya v. Raja Dulaji and others (supra) does not represent the correct construction of s. 21(1) (h) of the Act. On true construction of the said provision in our view, the benefit thereof would be available to thelandholder on the dateof vesting, if the same landhold er or his predecessor existing on the material dates was a person or persons belonging to one or more of the classes mentioned in s. 157(1) of the Act.Since in the instant case, which falls under(a) of cl. (h), on the date of act ual letting Smt. Ram Kali was disabled person and since on the next material date, namely, April, 9 1946 Dan Sahaiof Smt. Ram Kali) was also a disabled person, thelandholder on the dateof vesting, who incidentally happe ned to be Dan Sahai, would be entitled to the benefit of s. 21(1) (h) and the respondents (successors of Uttam Singh and Murli Singh) would remain Asamis and cannot be said to have become Sirdars.We might mention that after the arguments in these appeals were concluded and our Judgment was ready for pronouncement we were informed that in a later case Dwarika Singh v. Dy. Director of Consolidation (l) a larger Bench ofof the Allahabad High Court has, by majority, overruled the view taken in Smt. Mayas case.