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PETITIONER: VIJAY PAL SINGH AND ANOTHER

       Vs.

RESPONDENT: DY. DIRECTOR OF CONSOLIDATION & ORS.WITHCIVIL APPEAL NO. 250

DATE OF JUDGMENT02/05/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  146            1995 SCC  (5) 212  1995 SCALE  (3)694

ACT:

HEADNOTE:

JUDGMENT:                      O R D E R      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  Uttar Pradesh originally belonged to DEvia, who had three  sons, namely,  Niadar Singh,  Bhanwar  Singh  and Kunwar Singh. Naiadar 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.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 the three brothers  were in  separate possession  and  enjoyment during their  lifetime. On  their demise,  the names  of the widows of  Naiadar 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 Naiadar  Singh and  Bhanwar Singh. It is an admitted fact that the  name 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  of  Bhanwar Singh. The  Hindu Women’s  Right to  Property Act,1937, does

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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 enlarged into  absolute right in respect of Khata numbers 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 1/3rd share. Accordingly, the land was mutated and her name was recorded to the extent of her  1/3rd share.  The same  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 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  1/3rd 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 that Shiv Devi’s name continued in the revenue record to the extent of 1/3rd 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  1/3rd share to which he  was entitled.  Obviously,  by  family  arrangement between the  brothers, on  demise of  their father Devia, it was mutated  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  Shiv 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-s.(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 of the property. When she died intestate, her daughter Champi became  absolute owner as Class-I heir, since she was in possession  and enjoyment  of the  land in her own right. The entries  in the  revenue record  corroporate  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 of 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.   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 Champi got enlarged into the

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ownership right  by her  paying ten  times land  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 the property, since her husband  Bhanwar Singh died in 1911, the respondents had become owners by intestate devolution. Apeal 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 C.A. Nos. 991- 993/79 placed  reliance on  the judgment of the single Judge of the  High Court  reported in Kameshwar Singh (deceased by L.Rs.) vs.  Deputy Director of Consolidation, Pratapgarh and others, 1983  ALJ 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  enlarged into  absolute right under s.14(1) of the Hindu Succession Act.      Civil Appeals No. 991-93/79 are allowed and Civil Apeal No.2506/78 is dismissed. No costs.