VIJAY PAL SINGH AND ANR.

DY. DIRECTOR OF CONSOLIDATION AND ORS.

MAY 2, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.]

Hindu Succession Act, 1956: Sectiol!.< 14(1) and (2).

Widow-Limited estate for maintenance-Enlargement into absolute estate-Death of widow-Daughter-Absolute ownership of

North-Western Provinces Tenancy Act, 1901: Section 22.

Property-Mode of Devolutio~Absence of male lineal descendants-Held widow is entitled to succeed.

U.P. Zamindari and Land Reforms Act, 1950 : Section 11. D Widow-Possession of land-Recognition of pre-existing personal law.

D, a landowner, died leaving behind three sons, N, Kand B. B. died leaving behind his widow S. Before his death B separated from his brothers and came into possession of 1/3rd share. After the death of B his 1/3rd E share was mutated in favour of his wife S, who remained in possession towards her maintenance by operation of section 11 of the U.P. Zamindari • and Land Reforms Act, 1950. S died leaving behind her daughter C. In consolidation proceedings a dispute arose whether C was entitled to 1/3rd share in the property. The Consolidation Officer found that the name of S was mutated for her maintenance and the Settlement Officer rejected her F claim for 1/3rd share on the ground that she was not in possession In her own right and since B died in 1910 she has no right to share in the property left by her husband. The Hindu Women's Right to Property Act, 1937, does not apply to the claim made by S. On appeal, the Settlement Officer found that She was in possession of the property in her right having succeeded to G B. But her right was one of limited estate. After the Hindu Succession Act, 1956 had come into force, limited estate was enlarged into iihsolute right.

As regards other land, having purchased the tenancy right after paying ten times the land revenue, she became the owner. Therefore, it was held that she was entitled to 1/3rd share. The High Court held that C did not acquire any right since S had not succeeded to the estate of her husband B. There- H

A fore, she was not entitled to separate share and recording or the boldlnp

in her name was incorrect. Hence these appeals.

Disposing the appeals, this Court

HELD : 1. It is settled law that widow is entitled only to limited estate B for maintenance. By operation or sub-section (1) or section 14 or the Hindu Succession Act, her limited estate enlarged into absolute right as she was in possession when the Act came into roce. Thereby she becomes the absolute owner or the property. When she died intestate, her daughter C became absolute owner as Class-I heir, since she was in possession and C enjoyment ortbe land in her own right. The entries in the revenue record corroborate the same. Thereby she became the absolute owner.

(1110-H, llllA)

2. It is not in dispute that C bad bequeathed ]/6th share to her son-inlaw and the remaining share was gifted to her grand son. Thereby D they became entitled to the property by virtue or will and girt respectively.

So far as other land is concerned, section 22 or the North-Western Provin ces Tenancy Act, 1901, provides mode or 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 C got E enlarged into the ownership right by her paying ten times land re\'.enue by operation of section 134 of the U.P. Land Reforms Act. Thus, she becomes absolute owner In respect of her ]/3rd share in respect of other land.

Therefore, the question or applicability of sub-section (2) of section 4 of the Hindu Succession Act does not arise. The High Court, therefore, was not F right in holding that S having had no interest In the property, since her husband B died, the respondents bad become owners by intestate devolu tion. [llllBD)

Kameshwar Singh (deceased by L. Rs.) v. Deputy Director of Consolidation, Pratapgarh and Ors., (1983) A.L.J. 699, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 991-93 ~~ ~

From the Judgment and Order dated 5.10.78 of the Allahabad High H Court in C.M.W.P. No. 937, 936 and 938 of 1973.

VUAY PAL SINGH v. DY. DIRECTOR OF CONSOLIDATION 1109

B.D. Sharma for the Appellants.

P.H. Parekh, E.R. Kumar and Ms. Bina Madhavan for the Respondents.

The following Order of the Court was delivered :

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 C Uttar Pradesh originally belonged to Devia, Who had three sons, namely, Niadar Singh Bhanwar Singh and Kunwar Singh. Niadar 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. D 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 E the three brothers were in separate possession and enjoyment during their lifetime. On their demise, the names of the widow of Niadar 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 Niadar Singh and Bhanwar Singh. It is an admitted fact that the name F 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 G of Bhanwar Singh. The Hindu Women's Right to Property Act, 1937, does -1 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 H

A enlarged into absolute right in respect of Khata nnmbers 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 l/3rd share. Accordingly, the land was mutated and her name was recorded to the extent of B her l/3rd share. The sam~ 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 C 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 D l/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 E that Shiv Devi's name continued in the revenue record to the extent of l/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 l/3rd share to which he was entitled. Obviously, by family arrangement between the brothers, on demise of their father Devia, it was F mntated 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 Shive 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-.(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 H of the property. When she died intestate, her daughter Champi became

\..

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VIJA Y PAL SINGH v. DY. DIRECTOR OF CONSOLIDATION 1111

absolute owner as Class - I heir, since she was in possession and enjoyment A of land in her own right. The entries in the revenue record corroborate 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 Bof 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. Jn 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 C interest, the tenancy right of Champi got enlarged into the ownership right by her paying ten times and 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 D the property, since her husband Bhanwar Singh died in 1911, the respondents had become owners by intestate devolution. Appeal 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 CA. Nos. 991-993/79 placed reliance on the judgment of the single judge of the High Court reported

in Kameshwar Singh (deceased by LRs.) v. Deputy Director of Consolidation, Pratapgarh and others, 1983 AU 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 F enlarged into absolute right under s.14(1) of the Hindu Succession Act.

Civil Appeals No.991-993/79 are allowed and Civil Appeal No. 2506/78 is dismissed. No costs.

T.N.A.

C.A. Nos. 991-993179 are allowed. G and C.A. No. 2500/78 is dismissed.