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IN THE HIGH COURT OF MADHYA PRADESH
U.N. Bhachawat, J.
Khushi Lal
Vs.
Gajri Bai and others
Second Appeal No. 296 of 1972
Decided On: 23.09.1982
(2) Hindu Succeession Act, 1956- S.4(2) -applicability of the Act-devolution of tenancy rights in respect of agricultural land-provisions of Act would not apply.
On a plain reading of section 4(2) of the Act, it can be held without any hesitation that the Hindu Succession Act will not have an overriding effect over the law relating to the devolution of tenancy rights in respect of agricultural holdings. It is undisputed that the dispute between the parties is about the devolution of the tenancy rights in respect of agricultural land. [Para 8]
The Tenancy Act was in force and it contained the provision regarding devolution of rights on the death of a male Pakka tenant as contained in section 82 of the Tenancy Act and also for succession in the case of divestation of interest of a woman holding an interest inherited as a widow, mother, or daughter etc. as contained in section 83 of the Tenancy Act. Thus, if the question at hand is a question about the devolution of the tenancy rights, the Tenancy Act being in force at the relevant time, it shall hold the field and section 4(2) of the Hindu Succession Act would positively save the instant case from the operation of the Succession Act. [Para 13]
(3) Land Revenue & Tenancy Act, 1950 (M.B.)-S. 83-applicability of -necessary ingredients-what are.
On the dichotomy of section 83(1) of the Tenancy Act essential ingredients to attract the applicability of this section are these :-
(i) a person, the devolution of whose interest is in question, must be a Pakka tenant at the time the question of devolution and divestation arises, and
(ii) she must have inherited her right as a widow, mother, step-mother, father's mother, unmarried daughter or unmarried sister or father's father's mother. [Para 11(2)]
Section 83(1) of the Tenancy Act does not say that the person, the devolution or whose rights is in question must have inherited the rights as a Pakka tenant. It only requires that at the time of her death or remarriage, she should be a Pakka tenant and this status she has either inherited as such, or had been conferred on her on the coming into force of the Tenancy Act, under that Act, by virtue of the tenancy right she had inherited and was holding at the time of coming into operation of the Tenancy Act.
The contention that section 83 of the Tenancy Act would apply only if the devolution \-\-as under section 82 of the Tenancy Act is also devoid of substance inasmuch as it does not talk of the devolution of the rights of that Pakka tenant enumerated in this section who had inherited the rights of a Pakka tenant under section 82 of the Tenancy Act.
(4) Words and Phrases -word 'devolution'-meaning of-is also include divestation.
Section 83 of the Tenancy Act comprises within its ken two matters:
One, that the persons enumerated therein shall be divested of their respective interest of the happening of the event mentioned therein; and
Two, on whom that interest would devolve.
The question of devolution of interest of a person arises when the interest of that person ceases. Section 83 of the Tenancy Act, as already discussed, provided for both.
[Para 13 (1)]
(5) Land Revenue & Tenancy Act, 1950 (MB)-S.83 - devolution of interest of male Pakka tenant-interest inherited as a widow-she remarried-she has divested her interest-interest is devolved on the brothers of her deceased husband. [Para 15]
(6) Hindu Succession Act. 1956- S.14 - agricultural land-inherited by widow after enforcement of the Act-she remarried-interest is devolved on heirs of her deceased husband-widow has no right after remarriage. [Para 15]
(7) Succession -agricultural land-inherited by widow-she remarried -after remarriage she is divested of her interest. [Para 15]
U.N. Bhachawat, J.
This is an appeal by the plaintiff against the judgment and decree dated 29th of April, 1972 of the Court of the Additional District judge, Vidisha, in Civil Appeal No. 99-A of 1971, whereby it has reversed the judgment and decree dated 10th of October, 1969 in Civil Suit No. 24-A of 1968 of the Court of the Civil Judge Class II, Basoda.
The short facts leading to the present appeal are these : *'2-A. The admitted facts are;
(a) that the defendant Sarvashri Baldeo Singh, Hazarilal, Mail Singh, and late Dhan Singh are the brothers. They owned ancestral agricultural lands. These agricultural lands were partitioned amongst them. After this partition, the plaintiff and Dhan Singh continued in joint possession of the land that had fallen to their respective shares as equal owners thereof. Dhan Singh died twenty years prior to the date of the filing of suit, that is, in the year 1948 and in his place, the name of his widow Gajri Bai, defendant No. 1 was mutated and, thus, the name of the plaintiff and Gajri Bai, defendant No. 1, continued to be recorded as joint owners in equal shares in the revenue record over the suit lands. The suit lands are situated in village Danmadhi, Tahsil Basoda, District Vidisha, bearing survey Nos. 70/1, 102/1,103/2,10, 139/1 and 158 admeasuring 36 Bighas and 17 Biswas. Gajri Bai, defendant No. 1, remarried after the death of Dhan Singh and at the time of her remarriage she was a recorded Pakka tenant of the suit lands along with the plaintiff Khushilal, each of them having half share in the suit lands.
(b) Defendant Gajri Bai, sold her half share in the suit lands on 1-2-1968 by a registered sale-deed to defendants No. 5 and 6, namely Jagannath and Ratiram.
2-B. The plaintiff filed the present suit for a declaration that he be declared to be the sole owner of the suit lands in the status of a Bhumi-swami and in the alternative, it was prayed that if the plaintiff is not entitled to be declared as the sole Bhumiswami of the suit land, he be declared to be the exclusive Bhumiswami of half of the suit lands and of 1 /4th of the remaining half share, which was recorded in the name of Gajri Bai, defendant No. 1 and a permanent injunction be issued against defendant Nos. 1, 2, 5 and 6 namely, Gajri Bai, Man Singh, Jagannath and Ratiram respectively, restraining them from interfering in the possession of the plaintiff over the suit lands.
2-C. The plaintiff had based his claim on the ground that Gajri Bai, having remarried in the year 1952 with one Imrat Singh, she has divested herself of her right, title and interest which was to the extent of half share, in the suit lands as she had inherited that interest from her deceased husband Dhan Singh and she had no right, title and interest which she could alienate in favour of Jagannath and Ratiram, defendants Nos. 5 and 6 respectively,
2-D. Defendents No. 3 and 4, namely, Baldeo Singh and Hazarilal did not dispute the claim of the plaintiff, whereas the other defendants resisted the claim of the plaintiff. The contesting defendants, while controverting the plaint allegations, inter alia, contended that Gajri Bai had acquired an absolute interest in the suit land to the extent of her half share by virtue of the provisions contained in section 14 of the Hindu Succession Act, 1956 (for short, hereinafter referred to as the 'Succession Act') and, therefore, she could not be divested of that right after her remarriage. The fact and the date of remarriage was also disputed.
2-E. The trial Court had found that Gajribai remarried in the year 1958. The lower appellate Court also confirmed this finding. The trial Court had found that on remarrige, Gajribai had divested herself of her half share in the suit lands and it devolved in equal shares on the heirs of her late husband Dhansingh-on the plaintiff and his other three brothers, namely Mansingh (defendant No. 2), Baldeosingh (defendant No. 3) and Hazarilal (defendant No. 4). The trial Court, thus, dec
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