SMT. GULAB DEVIversusTHE DEPUTY DIRECTOR OF CONSOLIDATION AND ORS.

A                             SMT. GULAB DEVI
                                        v.
       THE DEPUTY DIRECTOR OF CONSOLIDATION AND ORS.

                              NOVEMBER 6, 1996

B              [M.M. PUNCHHI AND K.S. PARIPOORNAN, JJ.]

          UP. Zamindari Abolition and Land Reforms Act, 19501 UP. Tenancy
    Act, 1939 :

C         s.174(h)ls. 35(b) and (i)-Succession to a woman holding an interest
  otherwise than u!s 171 or s.172-Widow succeeding to the tenancy of her
  deceased husband-After the death ofthe widow both unmarried daughters
  succeeded to the estate-Thereafter Zamindari Abolition Act came into
  force-One ofthe sisters got married and the other sister died-Succession
  to the estate of deceased sister-Held, the estate was obtained by the
D appellant and her sister on t.he death of their father which occurred prior
  to the coming into force of the Zamindari Abolition Act and under the
  provisions ofs.35 ofthe Tenancy Act-Therefore, provisions ofs.174 ofthe
  Zamindari Abolition Act would apply and as provided in clause (h) .thereof,
  sister is an heir without the qualification ofbeing a married or an unmarried
  sister-The appellant is declared to be the heir to the estate ofher deceased
E sister.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8556 of
    1983.

F           From the Judgment and Order dated 12.1.83 of the Allahabad High
    Co~rt in C.M. W. No. 7446 of 1973


         Yogeshwer Prasad, Ms. Rachna Gupta and Ms. Deep Shikha Bharti,
    for Mrs. Rani Chhabra for the Appellant.

G           M.K.D. Namboodir; (NP) for Respondents.

            The following Order of the Court was delivered :

            We have remained unassisted because no one has appeared for the
H respondents.
                                       528
             GULAB DEVI v. DY. DIRECTOR OF CON SOLIDATION                    529


            From the judgment under appeal we gather that the High Court has         A
    proceeded on the basis of the genealogy drawn that Jageshwar Singh had
     I /4th share in a joint holding. On the death of Jageshwar Singh, his widow
    Bhagwanti succeeded to his estate under Section 35 of the U.P. Tenancy
    Act, 1939 [the Act] which provides for a special rule of succession to a
    male tenant in contrast to personal law, and under head (b) thereof, the
    widow comes in the second position after the male lineal descendants in          B
    the male line of descent coming in the first. After her death, resort again
    had to be made to the same provision to discover who next would succeed
    to the estate and it turned out to be that under head (i) , the unmarried
    daughter had a right to succeed. On that basis, both the daughters of
    Jageshwar Singh, namely, Guiab Devi, the appellant herein and Ram
    Kumari (whose estate is in dispute) succeeded to the property of their           C
    father in equal shares. After such succession, the U.P. Zamindari Abolition
    and Land Reforms Act, 1950 [the Abolition Act] came into force. While
    so, on 30.10.1954 Ram Kumari died. Shortly thereafter, consolidation
    operations commenced in the village. Since Guiab Devi concededly stood
    married on the date of the death of Ram Kumari, dispute arose between

.   her and the collaterals of Jageshwar Singh relating to succession to the
    estate of Ram Kumari. The Consolidation Officer and the Settlement Officer
    held in favour of the appellant but the Deputy Director, in revision, and
                                                                                     D


    the High Court, in affirmance, have held that the marriage of the appellant
    stood in the way of her succeeding to the estate of her sister, Ram Kumari.
    We are, thus, required to discover from the inter-play of the legal provisions   E
    whether the view taken by the Deputy Director [Consolidation] and the
    High Court is correct.

           As said before, bot~ the sisters ware tenure-holders in their own
    right to their respective shares on the date when the Abolition Act came
    into force. It is not disputed that they had received their respective tenancy   F
    holdings having succeeded to the estate of their father in accordance with
    Section 35 of the Tenancy Act. It would be worthy of emphasis that they
    had not succeeded to the estate under the provisions of the Abolition Act.

          Section 171 of the Abolition Act governs succession to male                G
    Bhumidhars or Assamis. It is maintained by learned senior counsel for the
    appellant that the word "Bhumidhar" would include a tenure-holder and
    thatthe provision is applicable to the case ofthe estate involved. We proceed
    on that footing since this assertion has not been refuted. Now, no succession
    to a male has opened after the coming into force of the Abolition Act. So,
    section 171 is out of the way. Section 172 provides succession in the case       H
    530                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A of a woman holding an interest inherited as a widow, mother, daughter
  etc. This provision applies to the case of a tenure-holder who dies after the
  date of vesting having obtained the estate before the date of vesting while
  the. Abolition Act being in force. The death, abandonment or surrender of
  or made by a female would have the effect of putting back the property
  fictionally in the hands of the last male holder whose heirs would have to
B be searched in the list provided under Section 171 of the abolition Act.
  Since, instantly the estate had vested in the two sisters prior to coming
  into force of the Abolition Act and sequally before the date of vesting,
  Section 172, therefore, was out of applicability. ·~esort then has to be
  made to Section 174 of the Act which provides succession to a woman
  holding an interest otherwise than the one covered under Section 171 or
C 172. The provision provides that when such a woman dies, her interest in
  the holding shall devolve in the order of succession given therein, and in
   clause (h), 'sister' is an heir without the qualification of being a married or
   an unmarried sister. Now, on the fact-situation, it is plain that the succession
   to the estate of Ram Kumari could only be governed by the provisions of
   Section 174 of the Abolition Act. Since neither Section 172 nor Section
D 171 could derivatively apply to her case, for the estate was obtained by
   her on the death of her father which occurred prior to the coming into
   force of the Abolition Act and under the provisions of Section 35 of the
   Abolition Act, the High Court as well as the Deputy Director of
   consolidation seemed to have committed an error which deserves
   rectification to that effect at our end. We, therefore, upset those orders by
E allowing this appeal as also the writ petition preferred by the appellant
   before the High Court, declaring her to be the heir to the estate of her
   sister, Ram Kumari, without any obstacle preventing. Ordered accordingly.

            No costs.
F
     R.P.                                                        Appeal allowed.