Judgment

SHARMA, J.:- The question involved in this case is whether a Bhumidhar with transferable rights while bequeathing his Bhumidhar right in favour of certain beneficiaries can subject it to a life estate in favour of another beneficiary, and if he is held to be so authorised, whether the interest of the life estate holder shall continue to be a life estate or shall get enlarged defeating the bequest in favour of the other beneficiaries.

2. The Bhumidhar of the disputed land Chukkhan executed a will directing that life estate will be vested in his wife Mst. Gilia and the vested remainder in their daughters present respondents Nos. 6 and 7. Smt. Gilia entered in possession of the land on Chukkhans death and executed a will in favour of the present petitioners. On her death a dispute arose in a proceeding under the the Consolidation of Holdings Act as to whether the petitioners should be recognised as Bhumidhars or the respondents Nos. 6 and 7. The Consolidation Officer, respondent No. 3 herein, accepted the claim of the respondents Nos. 6 and 7 but the decision was reversed in appeal by the Settlement Officer. The matter was, thereafter, taken in revision before the Assistant Director of Consolidation, respondent No. 1 who agreed with the Consolidation Officer and restored his order. The petitioners challenged this judgment by a writ application under Art. 226 of the Constitution before the Allahabad High Court. By the impugned decision the writ application has been dismissed. Special leave is granted.

3. The question for decision has been inaccurately formulated in the Special Leave Petition as to whether the provisions of the Hindu Succession Act or any other personal law can override the provisions of the U.P. Zamindari Abolition & Land Reforms Act, 1951 (hereinafter referred to as the Act).

4. Mr. Satish Chandra, the learned counsel for the appellants contended that the Act has by S. 171 laid down the rule of succession and it is not permissible to apply any other law for determining the heirship to a Bhumidhar. Reliance was placed on Ramji Dixit v. Bhrigunath, (1968) 2 SCR 767: and Prema Devi v. Jt. Director, Consolidation, AIR 1970 All 238. The learned counsel placed the scheme of the Act before us for showing that the personal law applicable to a Bhumidhar must be held to be excluded by the provisions of the Act dealing with succession exhaustively. Our attention was drawn to the provisions of Ss. 155 and 156 restricting the right to create a mortgage or lease and it was contended that Bhumidhari right is not consistent with limited interest therein and whenever such a right vests in a person he becomes the absolute owner and any attempt to limit his interest must be repelled. We do not find any substance in the argument.

5. The main fallacy in the stand taken on behalf of the appellants is in assuming that Mst. Gilia got the limited interest of a Hindu widow as recognised under the Hindu Law. What was bequeathed by her husband was a life estate as understood under the English Law. The holder of a Hindu widows estate is not a limited owner in that sense - she is the owner of the property subject to certain restrictions on alienation. The whole estate is for the time vested in her, and she represents it completely see Moniram Kolita v. Keerry Kolitany : (1880) 7 Ind App 115 (PC). As observed by the Privy Council in Janaki Ammal v. Narayanaswami Aiyar, (1916) 43 Ind App 207: her right is of the nature of a right of property, her position is that of an owner and so long as she is alive no one has any vested interest in the succession. That is not the position here. Mst. Gilia did not enter into possession as an heir. She got the land under a will. The right of a Bhumidhar with transferable rights to bequeath his holding or any part thereof by a will is expressly recognised by S. 169(1) of the Act. It is manifest that in the present case the personal law applicable to Chukkhan and his wife does not come in the picture at all