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CASE NO.: Special Leave Petition (civil) 11069  of  1998

PETITIONER: MOOL CHAND

       Vs.

RESPONDENT:  KEDAR (DECEASED) BY LRS.  & ORS.  ..

DATE OF JUDGMENT:       28/01/2000

BENCH: A.P.Misra, M.J.Rao

JUDGMENT:

J U D G E M E N T

MISRA, J. L.....I.........T.......T.......T.......T.......T.......T..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 U.P.Z.A. Act).   The  appellants  case is, even if  Section  172(2) applies,  as  held both by the Appellate Court and the  High Court, Section 172(2)(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 her death Section 172(a)(ii) would apply,  hence  devolution would be governed 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  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 along   with  other  recorded   co-tenure-holders  who   are respondents  before  us.   On  the date  of  vesting,  under U.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.

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     During  consolidation  of   holdings  proceedings  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 are not concerned in the present case.   The contesting respondents opposed this and claimed their right, being  co-sharer  under Section 175 of 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:  In 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 objection of  the  contesting respondents.   Being  aggrieved,  the respondents  filed  an appeal    before   the     Assistant   Settlement    Officer Consolidation.   The  Appellate  Authority   held  that  the respondents  being co- tenants were entitled to inherit  the share  of  Smt.   Kaushalya Devi under Section 175  of  U.P. Zamindari  Abolition  and  Land   Reforms  Act,  1950.   The Appellant  preferred  revision  before the  Deputy  Director Consolidation.   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, namely, appellant inherits the property.   This  order  was challenged  by  the  respondent before  the  High Court through a writ petition,  which  was dismissed  but their special leave was allowed by which  the case was remanded back to the Deputy Director Consolidation. After  remand  this Revision Authority applying Section  175 held  that  respondents  being   co-tenure-holder  would  be entitled  to inherit Khata Nos.  31 and 35.  Thereafter  the appellant  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 dismissed  the petition of the appellant.  Being  aggrieved, the   appellant  has  raised   the  aforesaid  question  for consideration.

     It  is  not  in  dispute that  the  disputed  property belonged  to  the father of Smt.  Kaushalya Devi.   He  died prior  to the aforesaid U.P.Z.A Act, i.e., in 1944 and  Smt. Kaushalya Devi died after coming into force of the said Act, in  the  year  1953.  It is also not in  dispute  that  this disputed  land  was sir and khudkast of the father  of  Smt. Kaushalya Devi.  By virtue of Section 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  Uttar Pradesh free from all encumbrances.   Under Section  18, all rights of the intermediaries in  possession of  land as sir or khudkasht, immediately preceding the date of vesting, are deemed to be settled by the State Government with  such  intermediaries  who hold such  land  and  retain possession  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 relevant to refer, that  Smt.   Kaushalya

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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  case  is  not governed  by  Bombay School.  Mulla Hindu  Law,  Seventeenth Edition 9at page 238) states:-

     SUCCESSION  OF  PROPERTY INHERITED BY FAMALES:   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  are  (1)  the  widow, (2) daughter,  (3)  mother,  (4) fathers mother, and (5) fathers fathers mother.

     (4)  According  to  the Bengal, Benares,  Mithila  and Madras  schools,  every  female,  whether she  be  a  widow, daughter,  mother,  fathers  mother  or  fathers  fathers mother,  who  succeeds  as heir to the property of  a  male, takes  only  a limited estate in the property  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  survivorship.   The appellant  relies on Section 172(2)(a)(ii) while respondents rely  on Section 172(2)(a)(i).  For ready reference the said two sub-sections are quoted below:-

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

     (2)

     (a)

     (i)  she  was  in  accordance with  the  personal  law applicable  to  her  entitled to a life estate only  in  the 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 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 under  clause  (ii) then if under the personal law she  held property absolutely, the devolution would be governed by the

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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 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  appellant  also placed strong reliance in  Ramji  Dixit (dead) by his L.Rs.  and Anr.  Vs.  Bhirgunath 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  that there  is  nothing  in  the   Act  which  restricts   female Bhumidhari  right to be for life only.  In this Ramji  Dixit (supra), one Raj Kishore possessed the land as sir khudkasht and on his death in 1923 it devolved upon his widow Sanwari. On  coming into force of the U.P.Z.A.  Act, she acquired the status of a Bhumidhar.  Thereafter, on December 18, 1952 she made  the  disputed gift in favour of respondents.   Finally she died in 1954.  The revisioners of Raj Kishore challenged this  gift  by filing a suit on the ground that Hindu  Widow even  in the bhumidhari land had limited right hence she was incompetent to create an interest to the transferee by gift, which  was to inure beyond her life time.  In other words, a female  bhumidhar, holding land under the U.P.Z.A.  Act  had no  absolute  right  in  such  land.   This  submission  was rejected  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 interest remained  in such 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 bhumidhar to  transfer, the  court held that there was no limitation under it.  Thus transfer  by  a  female  Bhumidhar 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  bhumidhar,  under 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:  the entire  estate  is vested   in   her.   It  is  a  fundamental  rule   of   our jurisprudence  that  an estate does not remain in  abeyance. If  it  was  intended by the Legislature that  the  interest inherited  by a female mentioned in Section 171 was to be  a life-interest,  there  would  be some  indication  that  the reversionary or residuary interest remains vested in another person  designated  for that purpose.  But a search in  that behalf in the Act is fruitless.

     On the careful review of the provisions of the Act, we are  unable to hold that it was intended by the  Legislature to  enact  by  implication that the holding inherited  by  a female  heir belonging to one of the classes of female heirs in Section 171 is not (sic) held as a life- estate.

     Learned  counsel for appellant relied on this decision to  submit  that  the  right of  a  female  Bhumidhar  being

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absolute and unfettered, Section 172 (2)(a)(ii) would apply. This  submission  is  misconceived.    This  decision   only considered,  whether  a  female Bhumidhar had  any  absolute right  to transfer her holding or not?  It was while  making this  scrutiny,  it  was held 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, during her life time while  the present  case  is  concerned  with  the  succession  of  her Bhumidhari right after her death.  Thus this case renders no help   to  the  appellant.   Thus   the  question  for   our consideration  is,  when  a female Bhumidhar dies,  how  her property  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, 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 could  have hold the property as limited estate or absolute estate.

     The  decision of Gulab Devi (Smt.) Vs.  Dy.   Director of  Consolidation  and  Ors.   1996 (11)  SCC  591,  has  no application  to  the  present   case.   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 provisions applies to the case  of a tenure-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,  instantly  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 female Bhumidhar died after coming into force of the aforesaid U.P.Z.A.  Act.

     Thus  in  this  background the  question  is,  whether Section  172(2)(a)(ii)  or 172(2)(a)(i) is applicable.   The distinction  between  the  two clauses are  that  under  (i) inheritance  would be governed by Section 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 hold  such  estate  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 as limited or absolute  owner before applying sub-clause (i) or (ii).  So, first it has to be  examined, what would have been 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

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is  what  we have quoted above from Mullas 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 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 Bhumidar  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  in spite  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  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 claim cannot succeed.   The  courts below  rightly  held  that  the property  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.  Costs on the parties.