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PETITIONER: JAGAT SINGH

       Vs.

RESPONDENT: KARAN SINGH (DEAD) BY LRS. &ORS.

DATE OF JUDGMENT24/03/1987

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) RAY, B.C. (J)

CITATION:  1987 AIR 1279            1987 SCR  (2) 616  1987 SCC  (2) 349        JT 1987 (2)    31  1987 SCALE  (1)580

ACT:     Tehri  Garhwal  Bhumi Sambandhi Adhikar  Niyam:  s.6(4)- Benefit  under--’Spinda’  of the Original  ’khaikar’  living with  him  as a member of his  family--Whether  entitled  to become a sub-tenant of the head tenant--Provision applicable to Hindus only.

HEADNOTE:     Section 6(4) of the Tehri Garhwal Bhumi Sambandhi  Adhi- kar Niyam provides that brother or ’sapida’ (brother, nephew etc.)  of  the deceased sub-tenant will be  entitled  to  be recognised as a ’khaikari’ if he was jointly living with the deceased during his life time in the manner of a member of a joint family.     The  appellant, a ’sapinda’ of the  original  ’Khaikari’ (sub-tenant)  had started living with the deceased from  the age of 12 or 13 years as a member of the latter’s family. He has been sharing food and shelter with the deceased and  was engaged  in  cultivating the land along  with  the  deceased during  his lifetime. At the time of the death of the  later the obsequies were also performed by him.     The  trial court came to the conclusion that the  appel- lant  fulfilled the conditions prescribed by s.6(4)  of  the Act and was thus entitled to become ’khaikari’  (sub-tenant) of the respondent head-tenant. The lower appellant court and the High Court took the view that s.6(4) was applicable  not only  to  Hindus but also to Muslims  and  Christians,  and, therefore,  it was not sufficient for the appellant to  have shared the food and shelter and carried on the  agricultural operations with the deceased and that it must be shown  that he was in fact a member of the joint family. Allowing the appeal, the Court,     HELD: The High Court was in error in holding that only a member  of  an undivided family could claim the  benefit  of s.6(4)  of the Tehri Garhwal Bhumi Sambandhi Adhikar  Nayam. [620C-D]     Section  6(4)  of the Act is designed to apply  only  to Hindus. The expression ’sapinda’ employed in that  provision is peculiar to traditional 617 Hindu  Law  and  it would be altogether  inapposite  in  the

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context of citizens of Muslim or Christian faith. [619C]     The  expression "Jeevit Samay Men Abibhakt Kul Ki  Reeti Se  Uske Shareek Raha Ho" used in s.6(4) clearly provides  a clue  to the intention of the legislature to benefit such  a ’sapinda’  who had, lived with the issueless  ’khaikar’  and shared  with  him food, shelter, laying  as  also  joys  and sorrows along with him ’as if’ he was a member of the  joint family without in fact being one. Even if a separate brother or  newhew were to live with an issueless tiller during  his lifetime  just  as a member of the  Undivided  Hindu  Family would  be  expected to 40, the benefit of  becoming  a  sub- tenant of the head tenant is made available to him. [620A-C; 619G]

JUDGMENT:     CIVIL   APPELLATE   JURISDICTION:  Civil   Appeal    No. 1403(N) of 1973.     From  the  Judgment  and Order dated  12.4.1973  of  the Allahabad High Court in Second Appeal No. 2866 of 1965. S .N. Singh and T.N. Singh for the Appellant. Rameshwar Nath and Ravinder Nath for the Respondents. The Judgment of the Court was delivered by,     THAKKAR,  J.  The  controversy in  this  appeal  centers around  the  interpretation  of Section 6(4)  of  the  Tehri Garhwal Buhmi Sambandhi Adhikar Niyam, enacted by the  erst- while  State of Tehri Garhwal which continued to  remain  in force even after its merger in the State of Uttar Pradesh.      The  trial court came to the conclusion that the  peti- tioner was entitled to become the ’kahikari’ (subtenant)  of the respondents who were ’maurusidars’ (head tenants) of the land in question by virtue by the said provision and decreed the plaintiff’s suit. The lower appellate court and the High Court  took  a  contrary view and dismissed  the  suit.  The original  plaintiff  has  preferred the  present  appeal  by special  leave  and has contended  that  the  interpretation placed by the trial court was the correct interpretation  of the  relevant provision and that the Lower  Appellate  Court and  the  High Court were in error in  taking  the  contrary view. 618      The facts in so far as material are not in dispute. All the Courts have concurred in the finding that the petitioner was  a ’sapinda’ of Jeet Ram, the original ’khaikari’  (sub- tenant)  who died issueless. From the age of about 12 or  13 years  the appellant had started living with  deceased  Jeet Ram.  He was sharing food and shelter with Jeet Ram and  was engaged in cultivating the land in question along with  Jeet Ram  during his life time. He had lived as a member of  Jeet Ram’s  family and at the time of the death of Jeet  Ram  the obsequies  were performed by him. Thereafter he was  looking after the widow of Jeet Ram.      These  facts having been firmly established  the  trial court  upheld  the appellant’s right  to  become  ’khaikari’ (sub-tenant)  of the respondents in respect of the  land  in question  in the context of the right conferred  by  Section 6(4) of the Act. The said provision is in Hindi:               "MRIT  KHIAKAR  KAR  BHAI  YA  SAPINDA  WARISH               (BHAI,  BHATEEJA  AADI)  KEWAL  US  DASHA  MEN               ADHIKARI  HOGA JOB KI WAH US MIRT  KHAIKAR  KE               SATH JEEVIT SAMAY MEN ABIBHAKT KUL KI REETI SE               USKE SHAREEK RAHA HO." Translated in English, it reads as under:-               "Brother or Sapinda (brother, newhew etc.)  of

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             the deceased sub-tenant will be entitled if he               was  jointly living with the  deceased  during               his  life  time  in  the  manner  of  a  joint               family." An analysis of the aforesaid provision reveals that in order to  establish  the claim to be recognized  as  a  ’khaikari’ under the said provision, one must establish that:-                  (1) He is a ’sapinda’ of the deceased  sub-               tenant such as the brother or nephew.                  (2) He must have been living as a member of               the family with the deceased during his  life-               time  in the manner of a member of  the  joint               family.     The  Trial  Court  took the view that  inasmuch  as  the petitioner was admittedly a sapinda of deceased Jeet Ram and inasmuch  as  he had been living jointly with  the  deceased during his life-time, had been 619 sharing of food and shelter with him and had even  performed the  obsequies  of  Jeet Ram, he  fulfilled  the  conditions prescribed by the said provision and was entitled to  become a  sub-tenant of the head tenant. The Lower Appellate  Court and the High Court have taken the view that it is not suffi- cient for the appellant to have shared the food and  shelter and  carried  on the agricultural operations  with  the  de- ceased. It must be shown that he was in fact a member of the joint  family. The High Court has made sought  support  from the  reasoning that section 6(4) is applicable not  only  to Hindus  but also to Muslims and Christians. With respect  to the  High Court this assumption is  altogether  unwarranted. The expression ’sapinda’ employed in section 6(4) is a clear pointer to the conclusion that the said section is  designed to apply only to Hindus. The expression ’sapinda’ is  pecul- iar  to  traditional Hindu Law and it  would  be  altogether inapposite in the context of citizens of Muslim or Christian faith.  Failure  to realize this aspect  impelled  the  High Court to take a view contrary to the view taken by the trial court as is evident from the following passage:               "As  the  provisions of section 6 (4)  of  the               Tehri  Garhwal Bhumi Sambandhi  Adhikar  Niyam               are applicable not only to Hindus but also  to               Muslims and Christians etc. who may be  living               in  Tehri  Garhwal,  the  words  "Joint  Hindu               Family"  were not used and instead  the  words               "ABHI BHAKT  KUL  KEE  REETI  SE  USKE   SAATH               SHAREEK  RAHA HO" were used. These words  when               applicable  to a Hindu must mean a person  who               was  a member of a Joint Hindu Family  of  the               deceased Khaikar in this case Jeet Ram."               It appears that the Lower Appellate Court  and               the High Court altogether missed to grasp  the               intendment  and purpose of the  provision.  In               the  absence of such a provision an  issueless               tiller  would  experience great  hardship  for               there  would  be nobody to assist him  in  his               work  in his lifetime, look after him  in  his               old  age, and to take care of his widow  after               his  death.  That is why even if  a  separated               brother or nephew were to live with him during               his life-time, share the food and shelter with               him, and assist him in cultivation, just as  a               member of the Undivided Hindu Family would  be               expected  to  do, the benefit  of  becoming  a               sub-tenant is made available to him. Otherwise               there was no point in providing that unless  a

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             ’sapinda’  lived  with  him ’as if  he  was  a               member  of the joint family’ he would  not  be               entitled  to such a right. In fact the  provi-               sion has evidently been enacted with a view to               relieve the distress of an issueless  agricul-               turist, who is separate from his joint               620               family, so that any one of his sapindas living               with him as a member of the family,  assisting               him  in  agriculture, and looking  after  him,               would be entitled to become a ’khaikar’ on his               demise.  The  expression  ’JEEVIT  SAMAY,  MEN               ABIBHAKT KUL KI REETI SE USKE SHAREEK RAHA HO’               clearly  provides a clue to the  intention  of               the  legislature to benefit such a person  who               has  lived  with  the  issueless  khaikar  and               shared with him food, shelter, labour, as also               joys and sorrows along with him ’as if’ he was               a  member of the joint family without in  fact               being  one. The prospect of acquiring  such  a               right  would provide motivation to look  after               and  render  services to  the  issueless  land               holder for it would be unreasonable to  expect               him to do so selflessly, the world being  what               it is.                   We  are therefore of the opinion that  the               lower appellate court and the High Court  have               entirely misunderstood the provision in  hold-               ing that only a member of an Undivided               Family  could  claim the  benefit  of  section               6(4). If such were the case there was no  need               to make such an elaborate provision. It  would               have  been sufficient to say that a member  of               his  joint  family alone could  claim  such  a               right.                   We are satisfied that the trial court  was               right in upholding the claim of the  appellant               whereas the lower appellate court and the High               Court were in error in taking a contrary view.               The  appeal is, therefore, allowed. The  judg-               ment  and order of the lower  appellate  court               and the High Court are set aside. The judgment               and  decree  passed  by the  trial  court  are               restored.               There will be no order regarding costs.               P.S.S.               Appeal allowed.               621