IMPORTANT POINT
Whether a female Hindu Bhumidar died prior to coming into force of the Hindu Succession Act, leaving behind her husband, succession would be governed by Section 172(2)(a)(ii) of the U.P. Zamindari Abolition Act and not Section 172(2)(a)(i) and as such property would not devolve upon her husband but to the reversionary right holders.

Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950-Section 172(2)(a) r/w Sections 171 and 174-Female Hindu Bhumidar-Succession on death of-Appellant s wife inherited property from her father before UPZA Act came into force-She died before Hindu Succession Act came into force-Appellant s claim case fell under sub-section (2)(a)(ii) as she held property as absolute owner and he would succeed-Respondent s claim case fell under sub-section (2)(a)(i) as she held property as limited owner and property would revert to respondent-Held: under customary Hindu Law female inherit property as limited owner-Case fell under sub-section (2)(a)(i)-Property would go to respondent by survivorship.
       Held : 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. (Para 10)
       Smt. Kaushalya 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. (Para 7)
       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. It 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 is what we have quoted above from Mulla s 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. (Para 12)
       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. Thus for inheritance Section 171 would apply under which husband is not a heir. In view of this the appellant claim cannot succeed. (Paras 13 & 14)

JUDGMENT

Misra, J.-Leave granted

2. 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 appellant s 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.

3. 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.

4. 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 survivourship:-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."

5. 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. Khaushalya 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 raised the aforesaid question for considerat

Click Here to Read the rest of this document

2000 Supreme(SC) 214

Cases Referred (2)