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PETITIONER: SMT. BULAKI

       Vs.

RESPONDENT: LAL DHAR & ORS.

DATE OF JUDGMENT:       19/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal, by special leave, arises from the judgment dated December  14, 1977  passed by the Allahabad High Court in Second Appeal No. 500/65.      The admitted facts are that the last male-holder in the family, Bechan  had tow wives, Bhungi and Bhikni. Bhungi had gives birth  to three  daughters, Gulabi, Sulabi And Bulaki, the appellant,  Gulabi died on 7.2.1963. Smt Sulabi and Smt. Bulaki were  substituted as  legal heirs after the demise of Bhungi. Bechan’s second wife Bhikni had a son, Laldhar, born to her  former husband,  and brought him along with her when she was  married to  Bechan. After  her marriage with Bechan she had  a daughter  by name  Gunia. During the life time of Bechan,  Who   was  a  bhumidar  under  the  U.P.  Zamindari Abolition and  Land Reforms Act, 1950, he had executed three gift deeds i favour of Laldhar. The first tow gift deed were made in  the year  1951 and the third gift deed on 18.11.57. when the  said gift  deeds were challenged by the appellant, the appellate  Court and  the High Court upheld the validity of the  first tow gift deed and declared the third gift deed to be invalid.      Shri  Juneja,   learned  counsel   appearing  for   the appellant has  contended that  the permission for alienation was not  properly obtained  from competent officer and that, therefore, it was invalid. He has pointed out that the first two gift deeds were made on June 1, 1951 and June 2,1951. On 1.1.1951  and   application  for   permission  to  the  Sub- Divisional Officer  was made  and the  sanction thereof  was granted on  the next day, namely, June 2, 1951. By operation of the  proviso to  Section 24  of the  Act, it is contended that even  subsequent permission validates the alienation by way of  a gift.  We  find  no  infirmity  in  the  grant  of Sanction. It  is then contended by Shri Juneja that the Sub- Divisional  Officer   had  no   jurisdiction  to  grant  the permission  since   the  lands  were  situated  outside  his Division. The  High Court  has  Looked into the map and held that the  lands are   situated in that Sub-division only and that, therefore,  he  has  got  jurisdiction  to  grant  the permission. It is then contended that it was not the plea of either of the parties and the High Court would not have gone

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into that  question for  the first  time. May be the learned counsel is  right in this behalf, but with a view to satisfy his conscience  the learned  Judge had  secured the official map and  looked into  the map and found, as a fact, that the lands were  situate within  the  area  of  the  officer  who granted permission.  Even though  it  is  found  to  be  not legally permissible,  singe the learned judge has done it to do justice,  we do  not interfere  with the  finding in  the appeal under  Article 136.  Therefore, the  tow gift deed of June 1/2  1951 are  valid. Under those to deeds, Laldhar has got  the   properties  and  that  therefore,  therefore  the properties are not open to succession.      As regards  the property  under the third gift deed, it is seen that Bechan died In the year 1957. As a consequence, under Section  171 (b)  of the  Act succession  is open  and under clause  (b) the  widow succeeds the property. Since he had left  behind him  two widows,  the  two  widows  jointly succeeded to  the property,  Since pending  the  proceedings Bhungi died,  the co-widow,  namely, Bhinki succeeded to the estate by operation of Section 175 of The Act which reads as under :      "175.  Passing   of   interest   by      survivorship. In the cases 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."      Pending this  appeal the  co-widow,  viz.,  Bhikni  too died.      In consequence,  if the co-widow dies leaving behind no heirs entitled  to succeed under the  provisions of the Act, the interest  in such  holding shall  pass by  survivorship. Since she  had left  behind one heir-daughter, namely, Gunia and equally  Bhungii left behind her three daughters Gulabi, Sulabi  and  Bulaki,  and  Gulabi  having  pre-deceased  the mother, Sulabi,  Bulaki and  Guniya  would  succeed  to  the estate of  male holder  by operation  of Section 172(1) read with 171(1)(g)  of the  Act. Under  these circumstances,  in respect of  the properties  conveyed under  the  third  gift deed, dated November 18, 1957, all the three are entitled to 1/3rd share each.      The appeal is accordingly allowed and the decree of the trial Court stands modified to above extent. No. costs.