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PETITIONER: LACHHMAN SINGH (DEAD) BY L.RS.

       Vs.

RESPONDENT: VERSUS RAJA RAM SINGH & ORS.

DATE OF JUDGMENT:       30/03/1999

BENCH: S.R.Babu, S.Saghir Ahmad

JUDGMENT:

     RAJENDRA BABU, J.  :

     This  appeal is directed against an order made by  the High  Court  in a proceeding arising out of two suits  filed under  Section 209 of the Uttar Pradesh Zamindari  Abolition and  Land Reforms Act, 1950 (hereinafter referred to as the Act)  -  one  suit for claiming damages  amounting  to  Rs. 25000/-  and  another under Section 176 of the Act  claiming 1/3rd  share  in  the land in dispute.   The  properties  in dispute  were  held to be bhumidhari lands and pertained  to one  Arjun  Singh,  who  had no  male  issue.   Arjun  Singh executed  a Will which was registered on June 17, 1952.   As per  the  said Will, after his death the land devolved  upon his  wife,  Raj Kumari, and she held the said land till  her death on April 1, 1968.  The plaintiffs in the suit claiming to  be  the sisters sons of Arjun Singh claimed  that  they should  get 1/3rd share in the suit lands.  The Trial Court, after  recording  the  evidence  and  hearing  the  parties, dismissed  the  suit  filed under Section 176  of  the  Act. Against  that  order  an  appeal was  preferred  before  the Additional Commissioner, Lucknow Division, who held that the Will  did not include bhumidhari rights and after the  death of  Raj  Kumari,  the  widow of Arjun  Singh,  who  got  the property  in  her  own  right as heir of  Arjun  Singh,  the succession  will  not  be governed by the Will  but  by  the provisions of Section 171 of the Act.  Against that order of the  Additional  Commissioner  the plaintiffs  in  the  suit preferred  two  appeals to the Board of Revenue, U.P..   The Board  of  Revenue  upheld  the   order  of  the  Additional Commissioner  and the appeals stood dismissed.  Thereafter a writ  petition  was  preferred  in the  High  Court  by  the defendants  in  the suit.  The High Court noticed  that  the plaintiffs  allegations were that the plaintiffs were  sons of  sister  of Arjun Singh and became successors  after  the death  of Raj Kumari, the widow of Arjun Singh, whereas  the defendants  contended  that under the registered Will  Arjun Singh  vested  all his movable and immovable  properties  in favour  of his wife for her life time and after her death to his  daughter, Smt.  Bittaram for her life time and on their death the land had devolved upon them as khandani waris.  As contended on behalf of the plaintiffs that the Will had been executed  prior  to the commencement of the Act and  sir  or khud  kasht land is not transferable under Section 9 of  the U.P.   Tenancy  Act  and, therefore, the defendants  got  no ownership  on  the  basis  of  the  Will.   The  High  Court

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concluded that the rights arising out under Section 9 of the U.P.   Tenancy  Act will not bar exchange and gift and  that there  can be no transfer of the land as the word Will  is ordinarily  understood  and,  therefore,  it  could  not  be covered  under the definition of the term transfer and the Will  was  only a mode of devolution and did not  amount  to transfer.   At  the time his of death of Arjun Singh  was  a bhumidhar of the lands in question and, therefore, under the Will  all  the  movable  and immovable  properties  that  is haqiuat  Zamindari  and residential house, kachha and  gonda kachha  were disposed of with the entire property  belonging to  Arjun  Singh  and  it must be construed  that  it  would include  the property or right of bhumidhari in the land  in question  and, therefore, the High Court held that the Board had  erred  in confirming the order made by  the  Additional Commissioner  and  allowed the petition quashing  the  order made by the Board of Revenue.  It is against that order this appeal has been filed by special leave.  The learned counsel on  either  side  contended  that   the  question  for   our consideration  in  this appeal is the interpretation  to  be placed  upon  the Will executed by Arjun Singh  and  whether under the said Will the bhumidhari rights have been disposed of  in  terms of Section 169 of the Act and, if that is  so, the  appellants  or  the respondents  constitute  the  waris khandan of the said Arjun Singh.  Decisions of this Court in Rana  Sheo  Ambar Singh v.  Allahabad Bank  Ltd,  Allahabad, 1962  (2)  SCR 441;  Shri Ram Prakash v.  Mohammad Ali  Khan (dead)  thr.   L.Rs., 1973 (2) SCC 163;  Sri Vidya Sagar  v. Smt.   Sudesh Kumari & Ors.;  1976 (1) SCC 115, and  Jamshed Jahan Begam & Ors.  v.  Lakhan Lal & Ors., 1970 (2) SCR 566, were  brought to our notice explaining the nature of  rights arising  out of Section 18 of the Act.  It was again pointed out  that  what  is  disposed  of by the  Will  is  not  the Zamindari  rights  but  the entire property of  Arjun  Singh which  would  include  bhumidhari right.  It has  also  been brought  to  our  notice  that  Section  90  of  the  Indian Succession  Act  should also be adopted in  considering  the Act.   The  contention on behalf of the appellants  is  that though  the Will had been executed it is only in respect  of Zamindari  haq which stood extinguished on the  commencement of  the  Act and, therefore, the Will could not  affect  the rights  arising  out under the Act and, therefore, the  view taken  by  the  Additional  Commissioner and  the  Board  of Revenue  stands to reason in preference to that of the  High Court.   In  construing a Will the principle  enunciated  in Section  90 of the Indian Succession Act is relevant.  Where a  property  is  bequeathed  in generic  and  may  increase, diminish  or otherwise change during the testators life  so that  the  description  may  from  time  to  time  apply  to different amounts of property of like nature or to different subjects,  then  the  effect  of the  section  is  that  the property  answering  the  description at the  death  of  the testator  passes under the Will unless contrary intention is shown.   Will  became operative only on the death  of  Arjun Singh  in  1958.  Therefore, on that date, whether the  Will could have been executed by Arjun Singh and what right could flow  therefrom  has to be seen.  It is not in dispute  that under  Section 18 of the Act Arjun Singh became bhumidhar of the lands in question.  A bhumidhar is enabled under Section 169  of  the Act to make a Will and bequeath his holding  or any  part  thereof and general order of succession  provided under Section 171 is subject to Section 169 of the Act.  The Will executed by Arjun Singh, as far as the portion relevant for our purpose is concerned, reads as follows :-

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     After  my  death  however my all  properties  whether movable   or  immovable  i.e.    Haquait  Zamindari  and   a residential  house Kaccha and a Gonda Kacha will devolve  on my  wife  Mrs.   Raj  Kumari d/o  Gajaidhar  Singh,  Thakur, resident  of  Baderi  mentioned above who  would  enjoy  its ownership  under  the provisions of the will, and after  her death my above daughter Mrs.  Bitto resident of above Badera will  enjoy ownership rights over the properties of the will throughout  her  life, after the death my family heirs  will succeed  to  the  properties   under  the  will.  [emphasis supplied by us]

     The  intention  of the testator is very clear that  he wanted  to  bequeath  to  his wife  all  properties  whether movable or immovable which included at the time of execution of the Will Haquait Zamindari and a residential house Kaccha and  a  Gonda Kacha for her life time and thereafter to  his daughter for her life time and subsequently to the heirs who will succeed to the properties under the Will.  Therefore, a reading  of  the Will makes it clear that when the  testator made  the Will he did dispose of all his properties whatever be  the  nature  of the same and thus bhumidhari  rights  in respect  of  the lands in question were also covered by  the same  applying  the principle underlying Section 90  of  the Indian  Succession  Act  to which we have adverted  to,  and there is no contrary intention expressed.  The next question that  arises for consideration is what is the meaning to  be attributed  to  the expression waris khandan in the  Will? Neither  of  the parties have placed any foundation  on  the said  expression  by  way of pleadings  much  less  evidence before  the original authority or the appellate  authorities or  in the writ petition in this regard.  Therefore, we  are handicapped  to  decide  this question of  fact.   In  these circumstances,  while  upholding the order made by the  High Court,  we  modify  it  to the extent of  stating  that  the properties could now devolve on the death of daughter of the testator upon the waris khandan under the Will.  It will now be the task of the Assistant Collector to identify the waris khandan  and  whether the appellants or the  respondents  or both  of  them are covered in this expression or  otherwise. This   appeal  stands  disposed  of  accordingly.   In   the circumstances  of  the case, we make no order as  to  costs.