1. Dispute over succession to the estate of a female tenure-holder who acquired interest under the U.P. Tenancy Act, 1939, prior to the U.P. Zamindari Abolition and Land Reforms Act, 1950. (Para 2 )
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1996 Supreme(SC) 1864
1997(6) Supreme 52
SUPREME COURT OF INDIA
M.M. Punchhi & K.S. Paripoornan, JJ.
Smt. Gulab Devi -Appellant
versus
The Deputy Director of Consolidation & Ors. -Respondents
Civil Appeal No. 8556 of 1983
Decided on 6-11-1996
Counsel for the Parties :
For the Appellant : Yogeshwar Prasad, Sr. Advocate (Mr. Rachna Gupta, Ms. Deep Shikha Bharti,) Advocates for Mrs. Rani Chhabra, Advocate.
For the Respondents : M.K.D. Namboodiry, Advocate (NP)
Where a woman acquired her interest in a holding prior to the U.P. Zamindari Abolition and Land Reforms Act, 1950, succession to her estate is governed by Section 174, which permits a sister to inherit regardless of her marital status.
Headnote:U.P. Tenancy, 1939-Section 35-U.P. Zamindari Abolition and Land Reforms Act, 1950-Section 174-Estate vested in two sisters prior to coming into force of Abolition Act-Estate obtained by them on death of their father-One sister died-Marriage of another sister, appellant-Whether debars her from succeeding to estate of her sister?-(No)-Appellant declared to be the heir to estate of her sister-Succession to estate of deceased sister could only be governed by provisions of Section 174 of the Abolition Act.
Held, on the fact-situation, it is plain that the succession to the estate of 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 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. (Para 4)
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2. Whether the marriage of a sister prevents her from succeeding to the estate of her deceased sister under the U.P. Zamindari Abolition and Land Reforms Act, 1950. (Para 2 )
3. The estate vested in the sisters before the Abolition Act; thus, succession is governed by Section 174, where a sister is an heir regardless of marital status. (Para 3 , 4 )
4. Succession to a woman holding interest otherwise than under Section 171 or 172 of the Abolition Act is governed by Section 174, which recognizes sisters as heirs. (Para 4 )
5. Appeal allowed; the appellant declared the heir to the estate of her sister without any obstacle. (Para 4 )
6. Which section of the U.P. Zamindari Abolition and Land Reforms Act governs succession to a woman who acquired her interest before the Act's commencement?
Section 174 governs succession to a woman holding an interest otherwise than those covered under Section 171 or 172, specifically when the estate was obtained prior to the coming into force of the Abolition Act. (Para 4 )
7. Does the marital status of a sister affect her right to succeed to the estate of another woman under Section 174 of the Abolition Act?
No. Under clause (h) of Section 174, a sister is listed as an heir without any qualification regarding whether she is married or unmarried. (Para 4 )
8. When is Section 172 of the U.P. Zamindari Abolition and Land Reforms Act inapplicable to a female tenure-holder?
Section 172 is inapplicable if the estate vested in the female holder prior to the coming into force of the Abolition Act and before the date of vesting. (Para 4 )
ORDER
We have remained unassisted because no one has appeared for the respondents.
2. 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.
3. 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 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.
4. 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. The provision 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 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 squally 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, o
