A Munda widow has the right to surrender a raiyati holding under Section 72 of the Chotanagpur Tenancy Act, even though she has only a limited interest in the property.

S.B.Sinha, J.

1. In this writ petition, an interesting question of law arises for decision namely whether a Munda widow has a right to surrender the agriculture holding or not. This application is directed against the orders as contained in Annexures 1, 2 and 3 passed by respondent Nos. 4, 3 and 2 respectively.

2. For the purpose of disposal of this application, it is not necessary to state the facts in details. Suffice it to say that one Rup Singh Munda filed an application for restoration purporting to be under Section 71-A of the Chotanagpur Tenancy Act in respect of land bearing plot No. 9010 appertaining to the khata No. 78 measuring an area 78 decimal. The aforementioned application was allowed solely on the ground that the widows of two sons of the two recorded tenant, i. e. Budhan and Gansa viz. Galeswari Debi and Mossmt Bande surrendered the lands in question in favour of the landlord. The aforementioned surrender took place in or about 12-9-1939. The cause of the surrender is alleged to be that the two aforementioned widows were not in a position to cultivate these land.

3. By reasons of the impugned orders the concerned respondents allowed the application of the aforementioned Rup Singh Munda, only on the ground that the widows aforementioned having only a limited interest had no right to surrender the lands in question.

4. Mr. P. K. Banerjee, the learned counsel appearing on behalf of the petitioner submitted that entire approach of the respondent Nos. 2, 3 and 4 are vitiated in law inasmuch as a widow having a limited interest has also a right to surrender the raiyati holding in terms of the provisions of Section 72 of the Chotanagpur Tenancy Act. He placed strong reliance upon the decision of Sheo Prasad Sahu and Anr. V/s. Deocharan Sahu and Ors. A.I.R. 1934 Patna, 212 and Jugal Ganjhu and Ors. v. Rupa Ganjhu and Ors. 1960 B.L.J.R. 340.

5. The learned Government pleader No. 1, on the other hand, relied upon a Full Bench decision of this Court in Bina Rani Ghosh V/s. Chotanagpur Division and Ors. 1985 P.L.J.R. 732 : 1985 B.L.T. (Rep.) 27 (F.B.)and contended that surrender has also been held to be a transfer and as such, the impugned orders are not vitiated in law.

6. In the instant case, it is not disputed that surrender is not a transfer but for the purpose of invoking the jurisdiction of the authorities under Section 71-A of the Chotanagpur Tenancy Act, it must be found that such transfer was made in contravention of the provisions of Sec. 46 or other provisions of the Chotanagpur Tenancy Act or the same was obtained by adopting fraudulent method.

7. In the instant case as stated hereinbefore, the respondent Nos. 2, 3 and 4 held that the Munda widows had no rights to surrender the agricultural holding on the ground that she had acquired merely a limited interest in the properties left by their husbands in accordance with their customary laws.

8. It is not disputed before me that a Munda widow, when she inherits the properties upon the death of her husband gets only a limited interest. Such type of limited ownership was prevalent amongst the Hindu widows also before the coming into force of Hindu Succession Act, 1956. In the decisions cited by Mr. Banerjee it has categorically been held that a widow having a limited interest is also a raiyat for the purpose of the provisions of the Chotanagpur Tenancy Act and as such, she has a right to surrender the raiyati without any legal necessity whatsoever. As stated hereinbefore, it is not the case of the respondent No. 6 that the said surrender was obtained fraudulently or the same was in contravention of the provisions of Section 72 of the Chotanagpur Tenancy Act. In the case of Jugal Ganjhu, in which reliance has been placed in the case of Seo Prasad Sahu, it has been held as follows:

In our opinion the principle laid down in that case should govern the question arising for decision in the present case and it must be held that a Hindu widow has the right to sur