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1969 DIGILAW 123 (ALL)

Basdeo Minor v. Director of Consolidation, U. P. , Lucknow, Camp at Unnao

1969-04-04

O.P.TRIVEDI, V.G.OAK

body1969
JUDGMENT O.P. Trivedi, J. - The dispute relates to plots Nos. 638 and 1298 on which in the basic year the name of Smt. Rukmin respondent No. 4 was entered as a bhumidhar. The appellants filed an objection under Section 9 of the U. P. Consolidation of Holdings Act alleging that the disputed land was originally the sir of one Gur Prasad who had two sons Dhakan and Achhey Lal. Achhey Lal predeceased Gur Prasad and on the death of Gur Prasad sometime before January, 1937 his other son Dhakan was the sole heir and as such the sole tenure-holder of the land. In mutation proceedings started with respect to this property on the death of Gur Prasad Smt. Rukmin, widow of Achhey Lal, claimed a share in the property. there was a compromise on January 8, 1937 in those proceedings and it was agreed that Smt. Rukmin will have the two plots for her life time without any right of sale or mortgage. In the objection before the Consolidation authorities the contention of Dhakan was that these plots were given to Smt. Rukmin in lieu of maintenance and that under Section 11 of the U. P. Zamindari Abolition and Land Reforms Act she was only an asami and not a bhumidhar and the entry is incorrect. This contention was accepted by the Consolidation Officer who held that the plots in dispute were given to Smt. Rukmin for her maintenance only; that she was an asami and not a bhumidhar (vide Annexure 1) . Respondent Smt. Rukmin went up in appeal before the Settlement Officer, Consolidation who dismissed the appeal maintaining the order of the Consolidation Officer (Annexure 2) . Then she went up in revision before the Director of Consolidation who allowed the revision holding that as the compromise arrived at between Dhakan and this lady in the mutation case did not mention that the plots in dispute were being given to her in lieu of maintenance she became a bhumidhar and the basic year entry of bhumidhari in her favour should continue (vide Annexure 3) . Aggrieved from this order of the Director of Consolidation Dhakan filed a petition under Article 226 of the Constitution before this Court. The petition was dismissed by a learned Single Judge of this Court on 21-8-1968 and therefore this special appeal. 2. Aggrieved from this order of the Director of Consolidation Dhakan filed a petition under Article 226 of the Constitution before this Court. The petition was dismissed by a learned Single Judge of this Court on 21-8-1968 and therefore this special appeal. 2. It was urged by the learned counsel for the appellants that Smt. Rukmin never acquired bhumidhari rights and that she was only an asami. After hearing learned counsel for the parties we are of opinion that there is substance in this submission. Section 18 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) reads as follows : "(1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands- (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove- (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, (c) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by- (i) an occupancy tenant, (ii) a hereditary tenant, (iii) a tenant on patta assami or instamrari referred to in Section 17 possessing the right to transfer the holding by sale (e) held by a grove-holder, on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary leasee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof." 3. Srimati Rukmin never claimed to be the lessee, tenant, grantee or grove-holder of this land at any stage. She evidantly claims bhumidhar rights on the basis that when she acquired those rights under Section 18 she was an intermediary of the land. The question arises as to whether she could be regarded as an inter mediary and whether she was entitled to bhumidhari rights under Section 18 of the Act. 'Intermediary' has been defined under Section 3 (12) of the Act as follows; "3 (12) 'intermediary' with reference to any estate means a proprietor, under-proprietor, sub-proprietor, thakedar, permanent lessee in Avadh and permanent tenure-holder of such estate or part thereof." Again Smt. Rukmin does not claim to have been at any stage under-proprietor, sub-proprietor, thekadar, permanent lessee in Avadh or permanent tenure-holder of these plots. The question therefore arises whether she could be held to be a propritor of this land. Under Section 3 (21) of the Act 'proprietor' has been defined as follows; "3 (21) 'proprietor' means as respects an estate a person owning, whether in trust or for his own benefit, the estate and includes the heirs and successor-in-interest of a proprietor." It is necessary therefore for Smt. Rukmin to establish that she was owner of this land. In our view having regard to the terms of the compromise under which she received this land it cannot be said that she was the owner of this land. Right of transfer and hereditability are two essential attributes of ownership of property. Salmond in his book on jurisprudence, 7th Ed. at page 303 says : "Strictly speaking, however, corporeal ownership is not so much one right as a bundle of rights, liberties, powers and immunities. The ownership of land, for instance, involves a right that others shall not trespass on the land or commit nuisances in respect of it, a privilege to go upon it oneself, to dig for minerals, and to build on it, a power to alienates it, and so on." 4. Pollock in his jurisprudence (6th Ed., 1929) at pages 179-80 says : "Ownership may be described as the entirety of the powers of use and disposal allowed by law." He says further : "The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such _person. We must look for the person having the residue of all such powers when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is elsewhere." Salmond also (ibid) at page 302 commenting on this aspect of ownership observed : "The right of the owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees, and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet be nonetheless remains the owner of the thing, while all the others own nothing more than rights over it. His ownership may be reduced to a mere name rather than a reality. Yet be nonetheless remains the owner of the thing, while all the others own nothing more than rights over it. For in him is voted that jus in re propris which, were all encumbrancers removed from it, would straightway expend to its normal dimensions as the universum jus of general and permanent use. He, then, is the owner of material object, who has a right to the general or residuary uses of it, after the deduction of all special and limited rights of use vested by way of encumbrance in other persons." 5. In the present case, admittedly under the compromise possession over this land was given to Smt. Rukmin only for the period of her life and besides she was prohibited from making any transfer of this property either by sale or mortgage. It cannot be said therefore that Smt. Rukmin became owner or proprietor of this land in virtue of this compromise. She was given only a right of enjoyment of the property for her life time under certain limitations, from which it followed that the general and residuary rights in the es,ate continued to remain vested in Dhakan who was the sole heir of the last male sir-holder and to whom the property would revert on the death of Smt. Rukmin. It is not possible in our view to hold that Smt. Rukmin became owner or proprietor of this land on the analogy of the limited estate of a Hindu widow before the Hindu Succession Act of 1956 came into force. The position of a Hindu widow and other female limited owners was peculiar to Hindu law before amendment of the law of succession by the Hindu Succession Act, 1956. A Hindu widow or other limited female heirs to the limited estate in the property inherited by them were not tenants-for-life but they were regarded as owners of the estate subject to certain restrictions on alienation and they represented the estate and took it as legal representatives of the last male owner. As they represented the estate the whole estate for the time being was deemed vested in them. As they represented the estate the whole estate for the time being was deemed vested in them. Besides they possessed the power to alienate the property for legal necessity, religious and charitable purposes and for the benefit of the estate (see Mulla's Hindu law, Articles 174 to 176) but Smt. Rukmin (lid not possess the right to alienate the property under any circumstances. Besides she did not get the property by inheritance like a Hindu widow or other female limited heir but under the terms of the compromise. Therefore the analogy of the Hindu widow or other female limited heir does not hold here. The reasoning of the Director of Consolidation was that the compromise was itself evidence of conferment of bhumidnari rights on Smt. Rukmin as the compromise did not state that the plots were given to her in lieu of maintenance and because the only condition laid down in the compromise was that she will not have a right to transfer. In this the Director of Consolidation fell into manifest error of law, misinterpreting the compromise. In the first place, the circumstance that the compromise did not in so many words mention that the plots were given to Smt. Rukmin in lieu of maintenance was not by itself decisive of the question and in the second place the Director of Consolidation missed the important condition of the compromise that Smt. Rukmin was given the land for her life-time only. He seems to have noticed only the other condition which put a restraint on her right to transfer the property. Thus there was a manifest error apparent on the face of the record in the decision of the Director of Consolidation. The Director of Consolidation failed to take into account circumstantial evidence which pointed to the intention of the parties that Smt. Rukmin was to retain possession of these plots in lieu of maintenance. The first of these circumstances was the conditions imposed in the compromise deed itself whereby she was to hold the plots for her life-time and was denied the right of transfer. The first of these circumstances was the conditions imposed in the compromise deed itself whereby she was to hold the plots for her life-time and was denied the right of transfer. Secondly, there was the fact that she was the widow of a predeceased son of the last sir-holder Gur Prasad and, while at the time she was not entitled to any share in the property left by Gur Prasad, she was all the same entitled to maintenance out of the disputed property in which her husband was a coparcener (Article 559 Mulla's Hindu Law, ibid). Another circumstance was that pursuant to the compromise the name of Smt. Rukmin was mutated over the disputed plots. Vide Khatauni for 1359 Fasli, in which note was made to the effect that these plots were given by Dhakan to Smt. Rukmin by way of maintenance. As this entry was made soon after the compromise both Dhakan and Smt. Rukmin will be reasonably presumed to know it. If this entry did not correctly reflect the intention of the parties in the compromise, then Smt. Rukmin as a prudent person must have taken steps for expunction of the note which appeared to indicate that she was only a maintenance-holder. Her conduct in not taking any such step is an additional circumstance in adding to the inference that under the compromise Smt. Rukmin was given this land in lieu of maintenance. Section 11 of the Act provides as follows: "Notwithstanding anything contained in Section 10 where sir or Khudkasht has been allotted by the sir or khudkashts holder thereof to a person in lieu of maintenance allowance, such person shall be deemed to be the asami thereof entitled to hold the land for so long as the right of maintenance allowance subsists." On the principle contained in Section 11 of the Act therefore the appellant's contention that she would only be a maintenance-holder and consequently acquired only the rights of asami appears to be valid and correct. It may be noted here that the wordings of Section 18(1) (a) are: "Subject to the provisions of Section 10, 15, 16 and 17 all lands in possession of or held or deemed to be held by an intermediary as sir, Khudkasht or an intermediary's grove etc." This is a case in which the disputed land should be deemed to be held by the appellants being the sole heirs of the last sir-holder, just as in the case of the kedar or montages under Section 13 (2) (a) and Section 14 (2) (a) respectively the land is deemed to be held by the intermediary. 6. Finally, it cannot be maintained that the appellants had no locus standi to question continuance of the entry of bhumidar against the name of Snit. Rukmin as it cannot be said that their rights are not affected by such entry. This is the only stage where they should claim final adjudicate on on the correctness or otherwise of an entry in the revenue records in proceedings arising out of their objection under Section 9 of the U. P. Corbolidaiion of Holdings Act. If an adverse finding is re-corded in these proceedings and the entry of bhumidhari continues in favour of Smt. Rukmin then it is doubtful if they will be able to challenge such an entry at any subsequent stage with the result that Smt. Rukmin would permanently acquire bhumidhari rights. This will permanently affect the rights of the appellants and their heirs and successors as on the death of Smt. Rukmin in terms of the compromise the property must revert to them. If, however, Smt. Rukmin acquires bhumidhari rights then the property will not revert to them but will go to her heirs. Besides on becoming a bhumidhar she will also acquire right of transfer, in exercise of which she may transfer this land by mortgage or sale which was prohibited under the compromise and will also affect the rights and interests of the appellants vitally and seriously. 7. For the aforesaid reasons we ai of the opinion that this appeal is entitled to succeed. 8. 7. For the aforesaid reasons we ai of the opinion that this appeal is entitled to succeed. 8. We allow the appeal with costs, set aside the judgment of the learned Single Judge, quash the order of the Director of Consolidation (Annexure 3) restore orders of opposite parties 2 and 3 (Annexures 1 and 2) and direct that the revenue records shall be corrected in such a way as to show that the appellants are bhumidhars of the disputed land and Smt. Rukmin, respondent No. 4, is only an asami of the plots in dispute for life.