MOOLCHAND

KEDAR (DECEASED) BY LRS. AND ORS.

JANL'ARY 28, 2CCO

B [M. JAGA~NADHA RAO AND A.P. MISRA, JJ.j

Land Laws:

U.P. Zamindari Abolition and Land Reforms Act, 195(}-Sections 171, C 172(2)(a)(i), 17212)(aJ(ii), 174, 175- --Wife of the appellant inheriting 2/5th share each in two khatas in question from her father and was a co-bhumidar along with other cotenure-holders-Appellant claiming his right as tenure holder in place of his wife after her death-Entitlement of-Held, the wife of the appellant inherited the property from her father under the personal law as D limited estate and thus after her death, the interest in the property in question would pass to the co-tenure holders by survivorship and not devolve upon the appellant-Appellant's wife having died prior to the coming into force of the Hindu Succession Act, Section 14 of the said Act is not applicable and ownership of property is thus governed by personal law wherein the property E inherited by any female from a male is held as limited estate and not absolute

estate-Hindu Succession Act, 1956-Section 14.

Law of Inheritance-Variation in-Female Bhumidar having absolute right to transfer under the U.P. Zamindari Abolition and Land Reforms Act, F having only a limited right under the personal law for the purposes of inheritance-Though paradoxical, this is what legislature intends-Law of inheritance varies for different properties under different statutes for the same person.

Appellant's wife inherited the property in question from her father G after his death in 1944. She had 2J5th share each in the two khatas in question along with other recorded co-tenure holders, the respondents herein. When the U.P. Zamindari Abolition and Land Reforms Act, 1950 came into force, she became co-bhumidar along with the aforesaid other co-tenure-Holders. However, she died in 1953 whereafter the appellant got H his name mutated. 448

MOOL CHAND v. K.EDAR (DECEASED) BY LRS. 449

During the consolidatio11 proceedings the appellant claimed his right A as tenure holder in place of his wife to the extent of 2/5th share in the said two khatas. The respondents opposed the appellant's claim and instead claimed their right as co-sharers. The Consolidation Ofticer accepted the claim of the appellant and dismissed the objection of the contesting respondents. Being aggrieved, the respondents filed an appeal before the Assistant Settlement Officer, Consolidation who held that the respondents being co-tenants were entitled to inherit the share of the wife of the appellant under Section 175 of LP. Zamindari Abolition and Land Reforms Act, 1950. In revision preferred by the appellant the, Depnty Director, Consolidation held that the wife of the appellant became full owner of the properties and hence after her death, the appellant inherited

c the property. The said order was challenged by the respondents before the High Court by way of a writ petition which was dismissed but their special lea\'e petition was allowed whereby the case W"dS remanded back to the Deputy Director, Consolidation. After remand, the Revision Authority, applying Section 175 of the Act, held that respondents being co-tenure D holders were entitled to inherit the share of the wife of the appellant with respect to the two khatas in question. Thereafter the appellant filed a writ petition before the High Court which dismissed the said petition thereby confirming the finding of the Revisionary Authority. Hence the present appeal.

On behalf of the appellant, it was contended that the appellant's wife bad inherited the property in question from her father and became ah solute owner and not limited owner for life. Thus on her death, Section 172(a)(ii) would apply and hence devolution would be governed by Section

174, under which the property would devolve on the appellant being the F husband of the deceased.

Dismissing the appeal, this Court

HELD : 1.1. Since the appellant's wife held the land inherited from her father, under the personal law as limited estate, after her death such G bhumidhari land would be governed by clause (i) of Section 172(2)(a) ofU.P.

Zamindari Abolition and Land Reforms Act, 1950. Thus for inheritance, Section 171 would apply under which husband is not a heir. In view o( this the appellant's claim cannot succeed. The Courts below rightly held that the property would go to the concerned respondents by survivorship by virtue of H

A Section 175 as they were co-tenure holc'.ers. [457-G-H; 458-A]

1.2. In the present case, Section 172(2) squarely applies as female Bhumidhar died after coming into force of the U.P. Zamindari Abolition and Land Reforms Act. As regards applicability of Section 172(2)(a)(ii) or l 72(2)(a) (i), the distinction between the two clauses are that under clause

(i) inheritance would be governed by St:ction 171, if under the personal law she was entitled to a life estate. If on the other hand, under the personal law if she was entitled to h11ld such estate absolutely, then inheritance would be governed by the Tale under Section 174. The appellant's wife died prior to the coming into force of the Hindu Succession Act, 1956 and Section 14 will C not apply. Under the customary Hind'.u Law, a female Hindu including

daugbter, as in the present case, inheriting from a male, will Ol'm property only as a limited olmer, as this case is not governed by Bombay School. In view of this legal positi11n, Section 172(2)(a)(i) would apply, and not subclause (ii). May be, after coming into fc, rce of the Hindu Succession Act of D 1956, within the ambit of Section 14, limited estate of Hindu female is converted into abso 1ute estate. In such cases, inheritance would be governed by the Table under Section 174 in view of Section 172(2)(a)(ii). But i:n the present case she died before the aforesaid Act of 1956. [ 456-G-H; 457-A-E]

Ramji Dixit (dead) by his L.Rs. and Anr. v. Bhirgunath and Ors., Arn.

E (1968) SC 1058, distinguished.

Guiab Devi (Smt.) v. Dy. Director of Consolidation and Ors., [1996)

11 sec 591, held inapplicable.

2. It may loo!• parJdoxical that female Bhumidar having absolute right to transfer, but for the purposes of inheritance, one has to travers2 to her personal law to find whether she would have held this property as limited or absolute owner, and if she had limited right then in spite of her absolute right under U.P. Zamlndari Abolition and Land Reforms Act, It G had to follow different c11urse to be governed by Section 172(2)(a)(I). But this is what legislature intends. That is why law of inheritance varies fo:r different properties unde,. different stat11tes for the same person.

[457-E-li'] ·

CIVIL APPELLATE JURISDICilON: Civil Appeal No. 648 of

H 2000.

MOOL CHAND v. KEDAR (DECEASED) BY LRS. (MISRA, J.] 451

From the Judgment and Order dated 26.11.97 of the Allahabad High A Court in C.M.W.P. No. 4886 of 1974.

Sanjaymani Tirpathi, Ms. Geetanjali Malvia and U.S. Prasad for the Appellant.

R.B. Mehrotra, Dr. I.B. Gaur, Ms. Gargi Khanna and Lalit Khanna B for the Respondents.

The Judgment of the Court was delivered by

MISRA, J. Leave granted.

The short question which arises for our consideration is, whether on the facts and circumstances of the case inheritance, when female Hindu Bhumidhar dies, the situation would be governed by Section 172(2)(a)(ii)

or Section 172(2)(a)(i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the "t:.P.ZA. Act'). The appdlant's D case is, even if Section 172(2) applit:s, as held both by the Appellate Court and the High Court, Section 172(a)(ii) would apply, as Smt. Kaushalya Devi (deceased wife of the Appellant) inherited the self acquired property from her father, before the date of vesting under the aforesaid Act. Submission is, Smt. Kaushalya Devi, as aforesaid inherited the said property from her father and became absolute owner and not limited owner for life. Thus, on E her death Section 172(a)(ii) would apply, hence devolution would be govi:rned by Section 174, under which the property would devolve on the appellant who is the husband of the deceased.

In order to appreciate the controversy, we hereby give short essential p facts. The present appeal confines its dispute to Khata Nos. 31 and 35 of Village Vishunpur, Phulvaria, Pargana Haveli, Tehsil Pharenda, District Maharajganj in District Gorakhpur, U.P. Musai was the father of Smt.

Kaushalya Devi who acquired this property. He died in the year 1944 when his daughter Smt. Kaushalya Devi inherited this property. She was later married to the appellant. She had 2/5th share each in the said two Khatas G along with other recorded co-tenure-holders who are respondents bdore us. On the date of vesting, under t:.P.Z.A. Act, Smt. Kaushalya Devi became co-bhumidhar along with the aforesaid other co-tenure-holders.

However, she died in the year 1953. Thereafter appellant got his name mutated vide order dated 14.12.54.

During consolidation of holdings pruceedings the appellant claimed his right as tenure holder in place of Smt. Kaushalya Devi, to the extent of 2/5th share in the said two Khatas and exclusive right in respect of Khata No. 37 to which we arc not concerned in the present cast. The contesting respondents oppostd this and claimed thtir right, being co-sharer under B Section 175 ol the said Act as Smt. Kaushalya Devi died leaving no heirs.

For ready reference Section 175 is quoted hereunder :-

''Section 175

Passing of interest by survivorship : ln the case of a co-widow, or a co-tenure-holder, who dies leaving no heir entitled to succeed under the provisions of this Act, the interest in such holding shall pass by survivorship".

The Consolidation Officer accepted the claim of the appellant and dismissed the :ibjection of tht contt:sting respondents. Being aggrieved, the D respondents filed an appeal before the Assistant Settlemt:nt Oftictr Consolidation. The Appellate Authority hdd that the n:spondents being cotenants were ntitled to inherit the share of Smt. Kaushalya Devi. under Section 175 of U.P. Zamindari Abolition and Land Reforms Act, 1950. The Appellant pnferred revision before the Deputy Director Consolidation.

E The Revisionary Authority applying Section 14 of the Hindu Succession Act, 1956 held that Smt. Kaushalya Devi became full owner of the properties and hence after her death her husband, namdy, appellant inherits the property. Thi~ order was challenged by the respondent before the High Court through a writ petiton, which was dismissed but their special leave was allowed by which the case was remanded back to the Deputy Director F Consolidation. After remand this Revision Authority applying Section 175 held that respondents being co-tenure-holder would be i::ntitled to inherit Khata Nos. 31 and 35. Thereafter the appi::llant filed writ petition before the High Court which was disposed of by means of the impugned order.

The High Court confirmed the finding of the Revisionary Authority and G dismissed the petition of the appellant. Bt!ng aggrieved, the appellant has raised the aforesaid question for consideration.

It is not in dispute that the disputed pruperty belonged to the father of Smt. Kaushalya Devi. He died prior to the aforesaid {; .P .Z.A. Act, i.e., in 1944 and Smt. Kaushalya Devi died after coming into force of the said H Act, in the year 1953. It is also not in dispute that this disputed land was

MOUL CHAND v. KEDAR (DECEASbD) BY LRS. [MISRA, J.] 453

sir and khudkast of the father of Smt. Kaushalya Devi. By virtue of Section A 4 of the said Act, all such estates situate in Uttar Pradesh vested in the State. Consequently, by virtue of Section 6 all rights, title and interest of all the intermediaries ceased and vested in the State of lJttar Pradesh free from all encumbrances. Under Section 18, all rights of the intermediaries in possession of land as sir or khudkasht, immt:diately preceding tht: date of vesting, are dt:emed to be settled by the State Government with such intermediaries who hold such land and retain posst:ssion subject to the provisions of the said Act as a Bhumidhar. The first question for consideration is, whether Smt. Kaushalya Devi had life estate or absolute right in her Bhumidhari land under her personal law.

It is also reh:vant to refer, that Smt. Kaushalya Devi died prior to the coming into force the Hindu Succession Act, 1956 and Section 14 will not apply. Under the customary Hindu Law, a female Hindu including daughter, as in the present case, inheriting from a male, will own property only as a limited owner, as this cast: is not governed by Bombay School, Mulla Hindu Law, Seventeenth Edition 9 at page 238 states :-

"SUCCESSION OF PROPERTY INHERITED BY FE/vi.ALES:

168. Property inherited by females from males - in territories other than the Bombay State - (1) According to the Bengal school, the

only females who can inherit the property of a male arc (l) the widow, (2) daughter, (3) mother, (4) father's mother, and (5) E father's father's mother.

( 4) According to the Bengal, Banaras, Mithila and Madras schools, every female, whether she be a widow, daughter, mother, father's mother or fathi:r's father's mother, who succeeds as heir to the property of a male, takes only a limited estate in the property F inherited by her, and at her death the property passes not to her heir, but to the next heir of the male from whom she inherited it."

The next question which arises for our consideration is, whether after her death, the property would go to her husband or to the co-share-holders by G survivorship. Tht: appellant relies on Section 172(2)(a)(ii) while respondents rely on Section 172(2)(a)(i). For ready refert:nce the said two subsections are quoted below :-

"Section 172 : Succession in the case of a woman holding an interest inherited as a widow, mother, daughther, etc. - H

454 SUPREME COlJRT REPORTS [2(){.'0) l S.C.R.

(2) .............................. .

(a) ........ °" .................. ..

(i) she was in accordance with the personal law applicable to her entitled to a life estate only in tht: holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male intermediary or tenant aforesaid; and if

(ii) she was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in Section 174."

(Emphasis supplied)

Smt. Kaushalya Devi being the daughter of Musai, after his death inherited his property and after coming into force, U.P.Z.A. Act, became D Bhumidhar. When she died the devolution would be governed by sub-Section (a) of Section 172(2). This sub-Section (a) is further split into two clauses, clause (i), under which, if under the personal law she had only life estate then her property would devolve upon the nearest surviving heir in accordance with the provisions of Section 171. On the other hand if it falls E under clause (ii) then if under the personal law she held property absolutely, the devolution would be gov1rned by the Table mentioned in Section 174.

Learned counsel for the appellant submits that Smt. Kaushalya Devi inherited the exclusive estate of her father as absolute owner, hence the F devolution would be governed by clause (ii) of the aforesaid section. It is also not in dispute that in case the devolution is governed by (ii) the appellant would succeed but if it is governed by (i) it would go to the contesting respondents. Learned counsel for the appt:llant also placed strong reliance in Ramji Dixit (dead) by his L. Rs. and Anr. v. Bhirgunath G and Ors., AIR (1968) SC 1058. In this case widow gave a gift of her bhumidhar share to the respondent, which was challenged by the revisioners of her deceased husband Raj Kishore, on the ground that she had only life estate in it, hence had no right to gift and thus such transfer was illegal. This submission was rejected by this Court and it was held chat there is nothing in the Act whid1 restricts female Bhumidhari right to be H for life only. In this Ramji Dixit (supra), one Raj Kishore possessed the

MUOI. CHAND v. Kr.DAR (DECEASfD) BY LRS. !MISRA J.i 4)5

land as sir khudkasht and on his death in 1923 it develoved upon his widow A Sanwari. On coming into force of the U.P.Z.A. Act, she acquired the status of a Bhumidhar Ther.:after, on December 18, 1952 she made the disputed gift in favour of resp@denb. Finally she died in 1954. The n:visiuners uf Raj Kishon: chalkngcd this gift by filing a suit on the ground that H;, ndu Widow even in the bhurnidhari land had limited right hence >he was incompetent to creak an interest tu the transferee by gift, which was to inure beyond her life time. In other words, a female bhurnidhar, holding land undi; r the U .P , Z.A. Act had no absolute right in such land. This submission was rcjccted by this Court. It was held that there was nothing in the Act which either put any embargo on a female bhumidhar to transfer her holding nor any residuary intt:rst remaiiled in uch land in any other person. The right of a female Bhumidhar was held to be absolute. With reference to Section 152, which is a right of a bhurnidhar to transfor, the court hdd that there was no limitation under it. Thus transfer by a female Bhurnidhar by way of gift of her Bhumidhari right was held valid. The court held:

There is nothing in the Act which indicates that when a female who inherits the rights of a bhurnidhar, unde Section 171 or Section 172 or Section 172A, any residuary interest remains vested in any other person. Under the act she is the owner of the property : tht: entire estate is vested in heL It is a fundamental rult: of our jurispurdence that an estate docs not remain in abt:yanct:. If it was intended by tht: Lt:gislature that the interest inht:rited by a female mentioned in Section 171 was tu be a life-interest, there would be some indication that the revisionary or rt:siduary intt:rcst remains vested in another person designated for that purpose. But a search in that bt:half in the Act is fruitless.

On the careful n:view of the provisions of the Act, wt: are unable to hold that it was intended by the Legislature to enact by implication that the holding inherited by a female heir bdonging to one of the classes of female heirs in Section 171 is not (sic) hdd as a life-estate :" G

Learned counsd for appellant rdied on this decision tu submit that the right of a female Bhurnidhar being absolute and unft:ttered, Section 172 (2)(a)(ii) would apply~ This submission is misconceived. This dt:ciion only considered, whether a female Bhurnidhar had any absolute right to transfer H

A her holding Jr not? It was while making this scrutiny, it was hdd that she had an unrestricted right to transfer. This case was not considering the question of inheritance after her death. The former dealt with her right to transfer, dunng ht:r life time while the present case is concerned with the succession of her Bhumidhari right after her death. Thus this case renders B no help to the appellant. Thus the question for our consideration is, when a female Bhumidhar dies, how her proptrty would devolve? Considering such inheritance under Section 172(2)(a), first it has to be ascertained what would be her legal right under the personal law. Both sub-sections of Sections 172(2)(a), viz., (i) and (ii) speak about the personal law. This personal law may be different to different classes of females, viz., Hindu, C Muslim, Christians or Sikh, and even among Hindu females the personal law would differ in accordance with the Bengal, Banaras, Mithila, Bombay or Madras School. Varying consequences will ensue in terms of their right under it. Thus after applying the personal law to such female Bhumidhar, it has to be. ascertained whether she would have hold the property as D limited est:~> or absolute estate.

The decision of Guiab Devi (Smt.) v. Dy. Director of Consolidation and Ors., (1996] 11 SCC 591, has no application to the present cru, e. The distinguishing features as drawn by the said decision itself reveals that it has no application:

"Section 172 provides succession in the case of a woman holding an interest inherited as a widow, mother, daughter etc. This provision applies to the case of a tt:nure-holder who dies after the date of vesting having obtained the estate before the date of vesting while the Abolition Act was in force ......... Since, n; stantly the estate had vested in the two sisters prior to coming into force of the Abolition Act and sequelly before the date of vesting, Section 172, therefore, was out of applicability.''

However, in the present case, Section 172(2) squarely applies as G female Bhumidhar died after coming into force of the aforesaid U.P.Z.A.

Act.

Thus in this background the question ts, whether Section 172(2)(a)(ii) or 172(2)(a)(i) is applicable. The distinction between the two H clauses are that under (i) inheritance would be governed by Section 171, if

MOOLCHANDv .KEDAR (DECEASED) BY LRS. (MISRA, J.J 457

under the personal law she was entitled to a life estate. If on the other A hand, under the personal law if she was entitled to hold such estatt: absolutely, then inheritance would be governed by the Table under Section

174. The Legislature clearly spells out its intent. So to find the channel of inheritance, one has to go to the personal law applicable to her and then to steer to the provisions to find whether she would have held the property B as limited or absolute owner before applying sub-clause (i) or (ii). So, first it has to be examined, what would have bem her right to such estate under

her personal law. This right has not to be seen either under Tenancy Law,

U.P.Z.A. Act or any other statutory or other law but has to be seen only under her Personal Law. The legal position, so far as personal law viz.

Hindu Law, of a female inheriting property from a male is what we have quoted above from Mulla's Hindu Law. As already stated any female including the daughter, as in the present case, when she inherits the property from male gets only life estate in as much as the case is not governed by the Bombay School. In view of this legal position, Section 172(2)(a)(i) would apply, and not sub-clause (ii). May be, after coming into D force of the Hindu Succession Act of 1956, within the ambit of Section 14, limited estate of Hindu female is converted into absolute estate. In such cases, inheritance would be governed by the Table under Section 174 in view of Section 172(2)(a)(ii). But in the present case she died before the aforesaid Act of 1956.

It may look paradoxical that female Bhumidhar having absolute right . to transfer but for the purposes of inheritance, one has to traverse to her personal law to find, whether she would have held this property as limited or absolute owner, and if she had limited right then inspite of her absolute right under U.P.Z.A. Act, it had to follow different course to be governed by Section 172(2)(a)(i). But this is what legislature intends. That is why law of inheritance varies for different properties under different statute for the same person.

In view of our aforesaid finding, that Smt. Kaushalya Devi held the G land inherited from her father, under the personal law as limited estate, after her death such Bhumidhari land would be governed by clause (i) of Section 172(2)(a) of U.P.Z.A. Act. Thus for inheritance Section 171 would apply under which husband is not a heir. In view of this the appellant's claim cannot succeed~ The courts below rightly held that the property H

A would go to the concerned respondents by survivorship by virtue of Section 175 as they were co-tenure holder.

So, we do not find any merit in this appeal. Accordingly, it is dismissed. Cost~ on the parties.

B M.P.

Appeal dismissed.