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PETITIONER: SMT. CHATRE WIDWO OFNAND RAM & ORS.

       Vs.

RESPONDENT: SAHAYAK SANCHALAK CHAKBANDI,MEERUT & ORS.

DATE OF JUDGMENT:       11/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  learned   single Judge  of the Allahabad High Court, made in W.P. No.1894/73 on May 8, 1979.      The admitted facts are that one Jallo had purchased the proprietary right of Zamindari in 1933. She, thereby, became Khudkhash-holder, in  other words,  proprietary-holder.  She inducted her  husband Tunda as a tenant who died in 1358 F., i.e., 1947-48.  The U.P.  Zamindari Abolition  Act had  come into force in 1359 F., i.e., 1948-49. The question arose; as to who  had succeeded to the estate of either Tunda or Jallo in respect  of the lands bearing Khata Nos.76, 96 and 108 in Danawali @  Atta within  police station Nachra Tehsil Hapur, District Meerut,  now renamed  as Ghaziabad?  The  Tribunals under the  Consolidation Act  had held that after the demise of Tunda  the subordinate interest of tenancy rights held by him stood  merged in the proprietary right held by Jallo and thereby Section 174 of the U.P. Zamindari Abolition and Land Reforms Act  (for short,  the "Act") would apply which stood confirmed by  the Director. In the writ petition the learned single Judge  had held  that since  Tunda  had  the  tenancy rights and  on his  demise his wife succeeded to the tenancy rights,  by  operation  of  Section  172  of  the  Act;  she succeeded to  that interest  as a  widow of Tunda and on her demise the  succession would  go to  the heirs  specified in Section 172.  Birbal, the brother of Tunda, therefore, would get the  tenancy rights  in preference  to  the  appellants- daughters of  Tunda and  Jallo. The question is; whether the view taken by the High Court is correct in law?      It is seen that under Section 171 of the Act the genera order of succession is regulated. It postulates that subject to the  provision of Section 169, when a bhumidar or assami, being a  male, dies,  interest his  holding shall devolve in accordance with  the order  of succession envisaged therein. Since  Tunda  was  not  a  bhumidar  of  the  land  sin  the aforestated Khata  numbers, Section  171 has no application. Section 172 prescribes succesion thus:      "172. Succession  in the  case of a      woman holding an interest inherited      as  a  widow  -------  (1)  when  a

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    bhumidar, or  assami who  has after      the date  of vesting,  inherited an      interest in  any holding  (a) as  a      widow - dies, and such bhumidar was      on the  date immediately before the      said date  an intermediary  of  the      land comprised  in the  holding  or      held as  a fixed rate tenant, or an      exproprietary or  occupancy  tenant      in Avadh  or as a tenant on special      terms in  Avadh  and  she  -  shall      devolve upon  the nearest surviving      heir (such  heir being  ascertained      in accordance  with the  provisions      of  Section   171)  of   last  male      intermediary or tenant."      The question is: whether Jallo succeeded to the tenancy rights of  Tunda? As  held, Tunda was not a bhumidar. On the other hand,  Jallo was the bhumidar. Though Tunda had assami rights in  the land  as a tenant during his lifetime, on his demise when  she succeeded  him, the  subordinate  right  of assami stood  merged with  bhumidari higher  right  held  by Jallo and  that, therefore, the succession under Section 172 was not open to any one. Section 174 envisages thus:      "Succession to a woman holding      an interest otherwise:- when a      bhumidar or assami (other than      a bhumidar or assami mentioned      in Section  171 or 172) who is      a woman  dies, her interest in      the holding  shall devolve  in      accordance with  the order  of      succession given below:      a) Son..........      b) Husband......      c) Daughter.........."      It  is   seen  that  when  Jallo  died  intestate,  her succession to  an estate  held  by  her  is  otherwise  than provided in  Section 171  or  172.  As  a  consequence,  the succession was  open in  accordance with the order envisaged therein. In  the absence  of sons, necessarily the next line of descendants  in order  is of  daughters.  The  appellants being daughters,  they are  entitled to  succeed over others enumerated in  clauses (e)  to (i). Under the circumstances, the view  of the  learned single  Judge that Jallo succeeded tenancy rights  held by  Tunda  and  that  she  having  died intestate, the  succession would  be in the line as provided in Section 172, is not correct in law.      Learned counsel  for  the  respondents  contended  that there were  8 tenants  including Tunda, the husband of Jallo and Birbal  being one of the successors-in-interest, is also entitled to  the property  as an heir of ownership of Tunda. In support thereof, he wanted to rely upon Section 40 of the U.P. Tenancy Act. Such argument was not addressed before the High Court.  We cannot  allow the  learned counsel  to raise that question  for the  first time. The High Court proceeded on the  premise that  Tunda is the tenant and he having died intestate, his  wife Jallo  succeeded to  the property  as a tenant to  the tenancy  rights. On  that basis  the  learned Judge had  applied Section  172 of  the Act.  In view of the above finding  of fact we have already considered that Jallo being the proprietor her husband had only tenancy rights; on his demise,  the lesser  right of  tenancy  rights;  on  his demise, the  lesser right  of tenancy  which her husband had got merged  with the  right as  a proprietor  and  therefore

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Birbal is  not entitled under Section 172. Section 174 alone would apply to the facts and circumstances.      The appeal  is allowed.  The judgment  and order of the learned single  judge stands  set aside.  Consequently,  the writ petition stands dismissed. No costs.      The Contempt Petition is dismissed.