Dori Lal & Anr. v. Board of Revenue, Uttar Pradesh

The petitioners by means of amendment application have sought additional prayer to be incorporated in the prayer clause of the main writ petition. Amendment application (CLMA No. 4059 of 2012) is allowed. The petitioners are permitted to incorporate the additional prayer during the course of the day. There are other certain documents, which have been filed by the petitioners along with the amendment application. They are also made part of the record.

It is an extremely old matter, where the writ petition itself was filed in the year 1992 before the High Court of Judicature At Allahabad and since then it remain pending before the said High Court. Subsequently, it was transferred to this Court under Section 35 of the Uttar Pradesh Reorganisation Act, 2000.

On the last occasion, learned counsel for the petitioners wanted to bring certain documents before this Court. In the interest of justice, this Court had given liberty to the petitioners to do so. Today by means of amendment application the same has been filed and is ordered to be incorporated by amendment, amendment application has already been allowed. 2

Heard learned counsel for the petitioners and learned Standing Counsel for the State. None present for respondent no.2.

One Keed Ram was given a land on lease under the Government Grants Act in the year 1973. It is alleged by the petitioners that the said lease was a perpetual lease and a succession was permitted under the terms of the lease as it would be done like that of (cid:147)Sirdar(cid:148) under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (from hereinafter referred to as (cid:147)Act(cid:148)), as per clause 1 of (cid:147)Patta(cid:148)/lease deed. The (cid:147)Patta(cid:148)/lease deed granted to Sri Keed Ram in the year 1973 has now been made a part of record by way of an amendment. The same has been perused. In the lease deed, it has been stated that succession to the lease will be done as it is done of a (cid:147)Sirdar(cid:148) under the Act. (cid:147)Sirdar(cid:148) is defined under Section 131 (a) of the Act. A (cid:147)Sirdar(cid:148) would be a (cid:147)Bhumidhar(cid:148) with non-transferable rights. Bhumidhars are categorized into two categories - (a) Bhumidhar with transferable rights and (b) Bhumidhar with non-transferable rights. Therefore, the succession as per the terms of the lease deed in the year 1973 would be like that of (cid:147)Bhumidhar(cid:148) with non-transferable rights. On this, there can be no dispute.

Sri Keed Ram in whose favour, lease was given by the Government under the Government Grants Act, died issueless in the year 1977 and was succeeded by his widow Udli Devi. Udli Devi succeeded on the said property and was recorded as tenure holder after the death of her husband Sri Keed Ram. Subsequently, Udli Devi died in the year 1985. Now the present petitioners 3 before this Court claim succession over the said property in the capacity as sons of the real sister of Udli Devi. Whether they can claim succession on the said property is the issue before this Court.

Claiming right over the said property, the present petitioners first moved for mutation of record before the concerned revenue authorities at Kaladhungi, District Nainital. During the mutation proceedings, an objection was raised by one Sri Nari Ram (respondent no.2), who himself claimed right over the said property on the basis of (cid:147)adverse possession(cid:148). The concerned authority, being (cid:147)Peshkar(cid:148) of the said area, after hearing the petitioners as well as the objector (respondent no.2) allowed the claim of the petitioners and discarded the objection of respondent no.2 and recorded the name of the petitioners the revenue records. Aggrieved Sri Nari Ram (respondent no.2) had moved an appeal before the Additional Collector (Executive), Nainita. The Additional Collector, while hearing the said matter, came to the conclusion that though Sri Nari Ram i.e. objector had absolutely no right over the said property, the property could not have devolved on the present petitioners also, as the original lease deed was in favour of the husband of Udli Devi and she succeeded the property under Section 171 of the Act, and therefore after the death of Udli Devi succession would be determined as per the determination given under Section 171 of the Act. The claim of the petitioners though was based on Section 174 of the Act. Section 174 of the Act reads as under:- (cid:147)174. Succession to a woman holding an interest otherwise- When a bhumidhar, or asami (other than a bhumidhar or asami mentioned in Section 171 or 172) who is a woman dies, here interest in the holding shall 4 devolve succession given below : in accordance with the order of (a) son, son(cid:146)s son, son(cid:146)s son(cid:146)s son, pre- deceased son(cid:146)s widow and pre-deceased son(cid:146)s predeceased son(cid:146)s widow in equal share per strips: Provided first that the nearer shall exclude the remoter in the same branch: Provided, secondly, that a widow, who has remarried, shall be excluded; (b) husband; (c) (cid:133); (d) daughter; (e) daughter(cid:146)s son; (ee) father; (eee) mother; (f) brother; (g) brother(cid:146)s son; (h) sister; (i) sister(cid:146)s son.

In the aforesaid Section 174 of the Act, one of the last legal descended of the deceased are (cid:147)sister(cid:146)s son(cid:148). Petitioners claim succession being the sister(cid:146)s son Udli Dvi. This claim of the petitioners though was rejected on the grounds that succession under Section 174 cannot be permitted, as Udli Devi was not the owner of the property but it was her husband Sri Keed Ram and, therefore, now succession after the death of Sri Keed Ram would be determined under Section 171 of the Act. Section 171 of the Act reads as under:- (cid:147)171. General order of succession.- Subject to the provisions of section 169, when a bhumidhar or asami being a male dies, his interest accordance with the order of succession given below : in his holding shall devolve (a) the male lineal descendant in the line of descent in equal shares per strips : Provided first that the son of a pre- deceased son how low so-ever shall inherit the share which would have devolved upon the pre-deceased son, had he been alive : 5 Provided secondly that, subject to the provisions of the first proviso, the share of a lineal descendant will pre-deceased male devolve upon his widow who has not remarried, and Provided thirdly that if no male lineal descendant in male line of descent is alive the inheritance shall be governed by clause (b); (b) widow and widowed mother and lineal of a pre-deceased male descendant in the male line of descent, who have not remarried: Provided that co-widow will firstly together get one share, and Provided secondly that the widow of a nearer descendant will exclude that of a remoter one in the same branch; and (c) [Deleted]; (d) father; (e) [Deleted]; (ee) unmarried daughter; (f) brother, being the son of the same father as the deceased; (ff) unmarried sister; (g) married daughter; (h) daughter(cid:146)s son; (i) brother(cid:146)s son, the brother having been son of the same father as the deceased; (j) father(cid:146)s father; (k) remarried; (l) son(cid:146)s daughter; (m) married sister; (n) half-sister being the daughter of the same father as the deceased; (o) sister(cid:146)s son; (p) brother(cid:146)s son(cid:146)s son; (q) father(cid:146)s father(cid:146)s son; (r) father(cid:146)s father(cid:146)s son(cid:146)s son. (cid:148) father(cid:146)s mother, who has not

The petitioners were not the descendants as per the above provision. The learned Additional Collector also held that even Sri Nari Ram did not have any right to succeed over the said property and, as there was no legal heir of the deceased, the said property would vest with the State. Order to this effect passed on 1.2.1988. 6 Aggrieved the present petitioners filed a revision before the Commissioner, Kumaon Division. The learned Commissioner came to the conclusion that determination of that succession in the present case would be determined under Section 171 of the Act and therefore is correct, but he disagreed with the findings of the Additional Collector that the land will now vest with the State and therefore referred the matter to the Board of Revenue under the Act. On reference, the Board of Revenue considered the matter and came to the conclusion that the findings given by the Commissioner in revision were wholly erroneous and the decision of Additional Collector was a correct decision. In the circumstances, succession was to be determined under Section 171 of the Act and, therefore, widow of owner of the said property died heirless and as there is no one to succeed her as per the Act, the property vest with the State.

The argument of the learned counsel for the petitioners Mr. Jitendra Chaudhary is that in the present case what has been given under Section 171 is that, it refers to a Bhumidhar with a transferable rights and not to Bhumidhar with non-transferable rights and since Section 171 of the Act relates to a Bhumidhar with transferable rights there is actually no provision under Section 171 of the Act which would determine the case. This argument of the learned counsel for the petitioners are wholly misconceived, as Bhumidhar under the Act means Bhumidhar with a transferable rights as well as Bhumidhar with non-transferable rights. Wherever speaking of Bhumidhar with transferable rights, specific provision has been given to that effect such as in Section 7 169 of the Act or other provisions. Section 171 of the Act speaks clearly about the Bhumidhar with transferable rights as well as Bhumidhar with non-transferable rights. This being the position of law, there is no force in the contention of the learned counsel for the petitioners.

It is clear view of this Court that after the death of Udli Devi heirless, the property presently in question has to vest with the State. The writ petition therefore fails and is hereby dismissed.

No order as to costs.

The Registry is directed to forthwith inform the collector of the concerned district i.e. District Nainital about the order so that he may take consequential action regarding the possession of the said property accordance with law. Kuldeep (Sudhanshu Dhulia, J.)

03.05.2012