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PETITIONER: AMAR SINGH & ANR.

       Vs.

RESPONDENT: ASSTT. DIRECTOR OF CONSOLIDATION & ORS.

DATE OF JUDGMENT19/08/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) PATHAK, R.S. (CJ)

CITATION:  1988 AIR 2020            1988 SCR  Supl. (2) 524  1988 SCC  (4) 143        JT 1988 (3)   638  1988 SCALE  (2)365

ACT:     U.P.  Zamindari Abolition & Land Reforms Act,  1951:  s. 169-Bequest-Bhumidhar  vesting  life  estate  in  wife   and remainder in their daughters-lnterest of life estate holder- -Nature of-Whether could get enlarged defeating the beguest- Tesrator’s personal law-Whether attracted.

HEADNOTE:     The Bhumidhar bequeathed life estate to his wife and the remainder in favour of the daughters. On his death the  wife entered  in  possession of the land and executed a  will  in favour  of  the appellants. In a proceeding under  the  U.P. Consolidation  of  Holdings Act  the  Consolidation  Officer accepted  the claim of the daughters (respondent Nos. 6  and 7)  to  Bhamidhari  rights. That decision  was  reversed  in appeal  by the Settlement Officer, but restored on  revision by  the Assistant Director of Consolidation. The High  Court dismissed the writ petition.     In this appeal by special leave it was contended for the appellants that for determining the heirship of a Bhumidhar, the  personal  law  applicable to him must  be  held  to  be excluded by the provisions of the U.P. Zamindari Abolition & Land Reforms Act, 1951 dealing with succession exhaustively, and  that  Bhumidhari right is not consistent  with  limited interest  and  whenever such a right vests in a  person,  he becomes the absolute owner.     Dismissing the appeal,     HELD: The holder of a Hindu widow’s estate is the  owner of   the  property  subject  to  certain   restrictions   on alienation.  The whole estate is for the time vested in  her and she represents it completely. Her right is of the nature of a right of property, her position is that of an owner and so  long as she is alive no one has any vested  interest  in the succession {526H-527B]        .     Moniram Kolita v. Keerry Kolitany; 7 I.A. 115 and Janaki Ammal  v. Narayanasami Aiyer; [1916] 43 I:A.  207,  referred to..                                                   PG NO 524                                                   PG NO 525     In   the  instant  case,  however,  the   personal   law

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applicable to the testator and his wife is not attracted  at all.  The wife did not get the limited interest of  a  Hindu widow as recognised under the Hindu Law. What was bequeathed by  her  husband was a life estate as understood  under  the English  Law. She did not enter into possession as an  heir. She got the land under a will. The right of a Bhumidhar with transferable  rights  to bequeath his holding  or  any  part thereof  by a will is expressly recognised by s.  169(1)  of the  U.P.  Zamindari Abolition and Land Reforms  Act.  While bequeathing  his Bhumidhar right in favour of his  daughters he could subject it to a life estate in favour of his  wife. The interest of the life estate holder thus continued to  be a life estate and did not get enlarged defeating the bequest in  favour  of  the daughters. They  should,  therefore,  be recognised as Bhumidhars. [527C, 526G, 527B, 525G, 526B]     Balbhadra  v.  Board of Revenue,  [1981]  Allahabad  Law Journal 781, approved.     Ramji  Dixit & Anr. v. Bhrigunath and Ors. [1968] 2  SCR 767  and Prema Devi v. Jt Director, Consolidation, AIR  1970 All 238,  distinguished.

JUDGMENT:     CIVIL  APPELLATE JURlSDlCTION : Civil Appeal No.2791  of 1988.     From  the  Judgment  and Order dated  28.1.1986  of  the Allahabad  High  Court in Civil Writ Petition  No.  9502  of 1980.     Satish Chandra and D. K. Garg for the Appellants.     Mahabir  Singh,  N.S.  Malik and  P.D.  Sharma  for  the Respondents.     The Judgment of the Court was delivered by     SHARMA,  J. The question involved in this case  is  this case is whether a  Bhumidhar with transferable rights  while bequeathinp  his  Bhumidhari  right  in  favour  of  certain beneficiaries  can subject it to a life estate in favour  of another beneficiary, and if he is held to be so  authorised. whether  the  interest  of  the  life  estate  holder  shall continue  to,  be  a  life  estate  or  shall  get  enlarged defeating the bequest in favour of the other  beneficiaries.     2. The Bhumidhar of the disputed land Chukkhan executed                                                   PG NO 526 will  directing that life estate will be vested in his  wife Mst.  Gilia  and the vested remainder  in  their  daughters- present  respondent  nos.  6 and 7. Smt.  Gifia  entered  in possession  of the land on Chukkhan’s death and  executed  a will  in favour of the present petitioners. On her  death  a dispute  arose  in a proceeding under the  Consolidation  of Holdings  Act  as  to  whether  the  petitioners  should  be recognised  as Bhumidhars or the respondent nos. 6 & 7.  The Consolidation Officer, respondent no. 3 herein, accepted the claim  of  the respondents nos.6 & 7 but  the  decision  was reversed  in  appeal by the Settlement Officer.  The  matter was,  thereafter,  taken in revision  before  the  Assistant Director of Consolidation, respondent no. 1 who agreed  with the  Consolidation  Officer  and  restored  his  order.  The petitioners  challenged this judgment by a writ  application under  Article 226 of the Constitution before the  Allahabad High  Court. By the impugned decision the  writ  application has been dismissed. Special leave is granted.     3.  The  question  for decision  has  been  inaccurately formulated  in the Special Leave Petition as to whether  the provisions of the Hindu Succession Act or any other personal law  can  over-ride  the provisions of  the  U.P.  Zamindari

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Abolition  & Land Reforms Act. Ic)5 1 (hereinafter  referred to as ’the Act’).     4.  Mr.  Satish  Chandra, the learned  counsel  for  the appellants  contended that the Act has by section  171  laid down  the  rule of succession and it is not  permissible  to apply  any  other  law for determining  the  heirship  to  a Bhumidhar.  Reliance was placed on Ramji Dixit and  Anr.  v. Bhrigunath and Ors., [1968] 2 SCR 767 and Prema Devi v.  Jt. Director,   Consolidation,  AIR  1970  Allahabad  238.   The learned  counsel placed the scheme of the Act before us  for showing that the personal law applicable to a Bhumidhar must be held to be excluded by the provisions of the Act  dealing with succession exhaustively. Our attention was drawn to the provisions of sections 155 and 156 restricting the right  to create  a  mortgage  or  lease and  it  was  contended  that Bhumidhari  right  is not consistent with  limited  interest therein  and  whenever  such a right vests in  a  person  he becomes  the  absolute owner and any attempt  to  limit  his interest  must be repelled. We do not find any substance  in the argument.     5. The main fallacy in the stand taken on behalf of  the appellants  is in assuming that Mst. Gilia got  the  limited interest of a Hindu widow as recognised under the Hindu Law. What  was  bequeathed by her husband was a  life  estate  as understood  under  the English Law. The holder  of  a  Hindu widow’s estate is not a limited owner in that sense- she  is                                                   PG NO 527 the owner of the property subject to certain restrictions on alienation. The whole estate is for the time vested in  her, and  she  represents it completely (see  Moniram  Kolita  v. Keerry  Kolitany 7 Indian Appeals 115). As observed  by  the Privy Council in Janaki Ammal v. Narayanasami Aiyer,  [1916] 43 Indian Appeals 207, her right is of the nature of a right of property, her position is that of an owner and so long as she  is  alive  no  one  has  any  vested  interest  in  the succession.  That is not the position here. Mst.  Gilia  did not enter into possession as an heir. She got the land under a will. The right of a Bhumidhar with transferable rights to bequeath  his  holding  or any part thereof  by  a  will  is expressly  recognised  by section 169(1) of the Act.  It  is manifest   that  in  the  present  case  the  personal   law applicable  to  Chukkhan and his wife does not come  in  the picture at all. So far sections 155 & 156 are concerned they are  confined  to cases of mortgage and lease  and  are  not relevant in the present context.     6. The decision in Ramji Dixit & Anr. v. Bhrigunath  and Ors. (supra) has no application in the present case. In that case, on the death of the owner of the land Raj Kishore, the lands  devolved  upon his wife Sanwari as  a  Hindu  widow’s estate and a dispute arose about her right of alienation. In the  Allahabad case also Smt. Prema Devi whose title was  in dispute  acquired certain right in the capacity of  a  Hindu widow. The cases are therefore clearly distinguishable.     7.  The  case of Balbhadra v. Board of  Revenue,  [1981] Allahabad  Law Journal 781 was similar to the  present  case and  the  view  taken by the  learned  Single  Judge  there, appears to be correct. Accordingly, we find no merit in this appeal which is dismissed with costs.     P.S.S.                                   Appeal dismissed.