1976 Supreme(SC) 31

SUPREME COURT OF INDIA
R.S. SARKARIA, S. MURTAZA FAZL ALI AND P.N. SHINGHAL JJ.
Ram Jivan, Appellant
Versus
Smt. Phoola (dead) by L. Rs. and others, Respondents.
Civil Appeal No. 901 of 1968
Decided on 30-1-1976.
Advocates appeared 
M/s. J. P. Goyal and A. G. Ratnaparkhi, Advocates, for Appellant; Mr. G. N. Dikshit, Sr. Advocate, (Mr. M. V. Goswami, Advocate with him), for Respondents.

Headnote:

U. P. Zamindari Abolition and Land Reforms Act, 1950 - Sections172 or Section 174 - Oudh Rent (Amendment) Act, 1921 – Sections 29,29(a),36,37,48 - Case had a chequered career and dispute between the parties passed through several phases both before Revenue Courts and in the High Court. In order to appreciate point of law involved in this appeal it may be necessary to give a resume of the facts which culminated in judgment of High Court under appeal - Dispute refers to lands comprised in Khata Nosof village in the District of Rae Bareli (U. P.) - It is not disputed that these Khatas originally belonged to one Harbans who died leaving behind three sons, - Appears to have died issueless but Ramadhin died leaving a widow and a daughter from her who was respondent No. 1. other son died leaving a son Jit who had contested present proceedings against - During pendency of present proceedings Jit also died and the proceedings have been continued by his son Ram alias - District of Rae Bareli fell in what was previously known as Oudh Area of the United Provinces - Dispute between parties appears to have arisen on death of one of the sons of who died in 1916 leaving behind his widow - At time of death of in 1916 the tenancy of the lands in dispute was governed by provisions of the Oudh Rent Act, 1886 - hereinafter referred to as the Rent Act of 1886 - Under provisions of Rent Act of 1886 was to continue in possession of the lands as an heir of but only during the fixed period of tenancy on the rent payable to the landlord and was not entitled to renewal of same - Terms and conditions of tenancy at the time of the death of were governed by Section 48 of Rent Act of 1886 which applied the Oudh Area where the lands in dispute were situate - Under Sec. 48 of Rent Act of 1886 it is obvious that on death of a tenant his widow was to continue in occupation of lands for unexpired portion of period for which the deceased tenant might have held holding - Accordingly continued to occupy lands after death of her husband in 1916. Meanwhile five years later the Rent Act of 1886 was amended by U. P. Act 4 of 1921 under which the 846 status of a statutory tenant was conferred on a person who was in possession of lands on the date when the amendment came into force – Held, Section 36 does not require that the tenancy as such should have been inherited by the widow - All that it provides is that the widow should have inherited an interest in the holding - Mere fact that she had to remain in possession for a further period of eight years before she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a widow – Court fail to see how it could be said, in view of the language of Section 36, that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of. Sec. 36 was thus clearly applicable – Court are satisfied that origin of title of lay in inheritance of estate of her husband however limited or precarious it may have been - This being the position succession to the estate of would have to be governed by the provisions of Section 172 of the Abolition Act which has applied provisions of Section 171 regarding order of succession - In order of succession given in Section 171 of the Abolition Act brother s son is a preferential heir - It might be mentioned here that by virtue of the amendment of Abolition Act in 1954 the married daughter was also introduced as an heir before brother s son. But this was not position prior to 1954 when the married daughter was completely excluded from inheritance. It is also not disputed that was a married daughter on the death of.. In these circumstances, therefore, the holding held by would devolve on s brother s son, namely Jit and thereafter on his heir who is now continuing the present proceedings. Thus Tahsildar was fully justified in mutating name of Jit in respect of lands in dispute instead of Smt. Phoola - Revenue Courts as also the Division Bench of High Court had taken a legally erroneous view in holding that mode of succession would be governed by Section 174 of Abolition Act as the interest left by was her self-acquired property - Appeal allowed