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PETITIONER: SMT. GULAB DEVI

       Vs.

RESPONDENT: THE DEPUTY DIRECTOR OF CONSOLIDATION & ORS.

DATE OF JUDGMENT:       06/11/1996

BENCH: M.M. PUNCHHI, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      We have remained unassisted because no one has appeared for the respondents.      From the  judgment under appeal we gather that the High Court has proceeded on the basis of the genealogy drawn that Jageshwar Singh  had 1/4th  share in a joint holding. On the death of  Jageshwar Singh,  his widow Bhagwanti succeeded to his estate  under Section  35 of  the U.P.Tenancy  Act, 1939 [the Act] which provides for a special rule of succession to a male  tenant in  contrast to  personal law, and under head (b) thereof,  the widow  comes in  the second position after the male  lineal descendants  in the  male line  of  descent coming in the first. After her death, resort again had to be made to  the same  provision  to  discover  who  next  would succeed to  the estate  and it  turned out  to be that under head (i),  the unmarried daughter had a right to succeed. On that basis,  both the  daughters of Jageshwar Singh, namely, Gulab Devi,  the appellant  herein  and  Ram  Kumari  (whose estate is  in dispute)  succeeded to  the property  of their father in  equal shares.  After such  succession,  the  U.P. Zamindari  Abolition   and  Land   Reforms  Act,  1950  [The Abolition Act]  came into force. While so, on 30.10.1954 Ram Kumari died.  Shortly thereafter,  consolidation  operations commenced in  the village. Since Gulab Devi concededly stood married on  the date  of the  death of  Ram Kumari,  dispute arose between  her and  the collaterals  of Jageshwar  Singh relating to  succession to  the estate  of Ram  Kumari.  The Consolidation Officer  and the  Settlement Officer  held  in favour of the appellant but the Deputy Director, in revision , and  the High  Court, in  affirmance, have  held that  the marriage of the appellant stood in the way of her succeeding to the  estate of  her sister,  Ram Kumari.  We  are,  thus, required to  discover  from  the  inter-play  of  the  legal provisions whether  the view  taken by  the Deputy  Director [Consolidation] and the High Court is correct.      As said before, both the sisters were tenure-holders in their own  right to their respective shares on the date when the Abolition  Act came  into force. It is not disputed that they had  received their  respective tenancy holdings having succeeded to  the estate  of their father in accordance with

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Section 35  of the  Tenancy  Act.  It  would  be  worthy  of emphasis that they had not succeeded to the estate under the provisions of the Abolition Act.      Section 171  of the Abolition Act governs succession to male Bhumidhars  or Assamis.  It is  maintained  by  learned senior counsel  for the  appellant that the word "Bhumidhar" would include  a tenure-holder  and that  the  provision  is applicable to the case of the estate involved. We proceed on that footing since this assertion has not been refuted. Now, no succession  to a  male has  opened after  the coming into force of  the Abolition  Act. So,  section 171 is out of the way. Section  172 provides succession in the case of a woman holding an  interest inherited  as a widow, mother, daughter etc. This  provision applies  to the  case of a tenureholder who dies  after the  date of  vesting  having  obtained  the estate before  the date  of vesting  while the Abolition Act being in  force. The  death, abandonment  or surrender of or made by  a female  would have the effect of putting back the property fictionally  in the  hands of  the last male holder whose heirs  would have  to be searched in the list provided under Section 171 of the Abolition Act, 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. Resort then  has to  be made to Section 174 of the Act which provides succession to a woman holding an interest otherwise than the one covered under Section 171 or 172. The provision provides that  when such  a woman  dies, her interest in the holding shall  devolve in  the  order  of  succession  given therein, and  in clause (h), ’sister’ is an heir without the qualification of  being a  married or  an unmarried  sister. Now, on  the fact-situation, it is plain that the succession to the  estate or  Ram Kumari  could only be governed by the provisions of  Section  174  of  the  Abolition  Act.  since neither Section 172 nor Section 171 could derivatively apply to her case, for the estate was obtained by her on the death of her  father which occurred prior to the coming into force of the  Abolition Act and under the provisions of Section 35 of the  Abolition Act,  the High Court as well as the Deputy Director of  Consolidation seemed to have committed an error which deserves  rectification to that effect at our end. We, therefore, upset  those orders  by allowing  this appeal  as also the writ petition preferred by the appellant before the High  Court, declaring  her to be the heir to the estate of her  sister, Ram Kumari, without any obstacle preventing. Ordered accordingly.No costs.