2021 Supreme(All) 311

IN THE HIGH COURT OF ALLAHABAD
RAJNISH KUMAR, J.
Ram Sunder And Another – Appellant
Versus
Joint Director Of Consolidation, Sultanpur And Others – Respondent
Consolidation No.2839 of 1980
Decided on : 21-06-2021

Point of Law: Consolidation of holding - Right of widow to transfer land got from husband - Since bhumidhar with transferable rights can transfer his agricultural land subject to the restrictions contained in Chapter VIII of the Act of 1950, therefore, a widow, acquiring the bhumidhari rights from her husband, can also transfer the land during her life time in accordance with law.

Headnote:

U.P. Consolidation of Holdings Act, 1953 - Section 9-A(2) - Mutation of name in revenue record - Challenged - whether a widow, who got the land from her husband which was coming from his ancestors can transfer it to anybody or not - whether Smt. Maina could have got the land in dispute recorded with her consent in the name of opposite party no.3, who is alleged to be the son of her daughter without transferring in accordance with law because the alleged transfer was neither by any mode of transfer nor succession -whether the opposite party no.3 is entitled for inheritance of the land in dispute of Smt. Maina, being the grandson of Sheetal and Smt.Maina, who had inherited the land in dispute from her husband as widow.

Finding of the Court : Section 171 and 172 of the Act of 1950 provides the general order of succession. Since a bhumidhar with transferable rights can transfer his agricultural land subject to the restrictions contained in Chapter VIII of the Act of 1950, therefore, a widow, acquiring the bhumidhari rights from her husband, can also transfer the land during her life time in accordance with law - Section 152 of the Act of 1950 provides that the interest of a bhumidhar with transferable rights shall, subject to the conditions hereinafter contained, be transferable. Therefore a bhumidhar with transferable rights can transfer his/her interest in the land subject to conditions in the Act of 1950, but it can be only in accordance with law i.e. the Transfer of Property Act and the Indian Registration Act. No other mode of transfer has been provided in the Act of 1950. Section 166 of the Act of 1950 provides that any transfer made in contravention of the provisions of this Act, shall be void - Alleged transfer made by Smt. Maina during her life time to the opposite party no.3 is alien to law, as such not sustainable in the eyes of law. Any transfer of property can not be made which is not covered by any statute or law -According to sub-section(1) (a), when a bhumidhar or asami who has after the date of vesting, inherited an interest in any holding as a widow, dies, marries, abandons or surrenders such holding or part thereof, the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male bhumidhar or asami. Therefore after the death of a widow, who has inherited the land on account of death of her husband, the land shall revert back to the family of her husband and devolve upon to the nearest surviving heirs in accordance with Section 171 of the Act of 1950 - It is to be ascertained on the basis of cogent evidence, if any available on record, as to whether Sahdei was the daughter of Sheetal and Smt. Maina and the opposite party no.3 was the son of Sahdei and in case on the basis of some cogent evidence it is found that opposite party no.3 was the son of daughter of Smt.Maina, he may get the land in dispute as discussed above and in accordance with law failing which the interest shall stand extinguished on the death of Smt. Maina under Section 189 of the Act of 1950 and the Land Management Committee shall be entitled to take possession of the land under Section 194 of the Act of 1950 and accordingly it may be considered and the order may be passed under Section 11-C of the Act of 1953.

Result: Writ petition partly allowed.