Research › Browse › Judgment

Allahabad High Court · body

1969 DIGILAW 426 (ALL)

Lal Gopal alias Triloki Nath v. Mahangi

1969-12-23

J.S.TRIVEDI

body1969
ORDER J.S. Trivedi, J. - Lal Gopal alias Trilok Nayak filed four suits against the Respondents of these appeals for cancellation of the sale deeds executed by Smt. Kailashi Devi in favour of the defend ant Respondents on the ground that she was holding the property for he maintenance and was an Asami of the land in dispute and she had therefore no right to execute the sale deed in favour of the Defendants Respondents. The Defendant Respondents contested the suit and contended that Smt. Kailashi was holding the property as a Hindu widow and was a Bhumidhar of the land in dispute and as such was competent to execute the sale deeds. The sale deeds were also challenged on the ground that the same were not executed with full understanding and were without legal necessity. 2. The trial court decreed the Plaintiff's suit for cancellation of the sale deeds, but dismissed the suit for possession on the ground that the relief for possession was barred u/s 331 of the UPZA and LR Act and also because the Plaintiff alone was not the sole beneficiary. The lower appellate court allowed the appeal of the Defendant Respondents and dismissed the cross-objection of the Appellant with the result that the suit of the Plaintiff Appellant stood dismissed with costs. These four appeals are filed against the aforesaid judgment of the Additional Civil Judge, Gorakhpur. As the suits and appeals were disposed of by one common judgment, these second appeals are also being disposed of by one common judgment. 3. The relevant facts of the case are that Harishchandra Nayak was the common ancestor. He had four sons: Lal Gopal alias Trilok, Radheraman, Radhey Mohan and Radhey Krishna. Radhey Mohan died in 1941 leaving his widow Smt. Kailashi Devi. Harishchandra also died thereafter. After his death, Smt. Kailashi claimed one-fourth share in the property. An agreement was thereafter entered into between the three sons of Harishchandra and Smt. Kailashi, on 15-5-46, under which it was agreed that Smt. Kailashi would get her name mutated over one-fourth share of the property. The relevant term of her status as given in para 2 of the agreement was as under: Yen ki mukira fariq doyam ko zai-dad zamindari khandani me mahaz mahduda akhtiyar misl bewa Hindu Khandani ke hasil hoga, yani unko koi akhtiyar kisi tarah kisi zaidad khandani ka intkal karne ka na hoga.... The relevant term of her status as given in para 2 of the agreement was as under: Yen ki mukira fariq doyam ko zai-dad zamindari khandani me mahaz mahduda akhtiyar misl bewa Hindu Khandani ke hasil hoga, yani unko koi akhtiyar kisi tarah kisi zaidad khandani ka intkal karne ka na hoga.... On the abolition of zamindari she became Bhumidhar of the Sir and Khudkasht land which was in her possession and thereafter on various dates between 28-10-64 to 27-1-67 she executed the four sale deeds in favour of the Defendant Respondents of various agricultural plots of which she was the Bhumidhar. The suits giving rise to these appeals were therefore filed for the reliefs mentioned above. 4. The learned Counsel for the Appellant has contended that Smt. Kailashi in the year 1941 on the death of her husband could not claim any right under the Hindu Woman's Right to Property Act (hereinafter called the Act). All that she was entitled to was a right of maintenance and therefore the agreement dated 15-5-46 (Ext. 8) conferred only a right of maintenance on her. It is further contended that she having held the property in lieu of maintenance was entitled to hold the land as an Asami only u/s 11 of the Zamindari Abolition Act and the transfer by her in favour of the Defendant Respondents was invalid. In support of his contention he has relied on a cyclostyled copy of the judgment of the Hon'ble Supreme Court passed in Civil Appeals Nos. 1954 and 1955 of 1966 Shyam Lal v. Amar Nath. The main passage on which reliance has been placed is an observation of their Lordships after a discussion of Section 3(1) of the Act and which runs as follows: From this provision it is clear that the Hindu Women's Right to Property Act applies only to a separate property left by a Hindu male. It does not apply either to a coparcenary property or to the property of a Hindu female. 5. The main question for determination is whether Smt. Kailashi obtained any right under the Act as amended by Act 11 of 1938 or not. It does not apply either to a coparcenary property or to the property of a Hindu female. 5. The main question for determination is whether Smt. Kailashi obtained any right under the Act as amended by Act 11 of 1938 or not. Section 3 of the Act is as under: 3(1) When a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of the property in respect of which he dies intestate, to the same share as a son.... (2) When a Hindu governed by any school of Hindu law other than Dayabhaga school or by customary law dies having at the time of his death an interest in a joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had. (3) Any interest devolving on the Hindu widow under the provisions of this section shall be the limited interest known as Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner. It is not disputed that Radhey Mohan died as a member of Mitakshara joint Hindu family leaving behind Smt. Kailashi as his widow. Under Sub-section (2) read with Sub-section (3) Smt. Kailashi will be entitled to the same interest as her husband had. The interest, however, shall be the limited interest known as "Hindu woman's estate". The case relied upon by the learned Counsel for the Appellant is not at all applicable to the facts of the present case. Their Lordships in that case were considering succession to Streedhan property and while considering this point, their Lordships after quoting Section 3(1) of the Act made the observation referred to above. The observation given above begins with the words "from these provisions", i.e. from Section 3(1). It cannot therefore be argued that the remarks of their Lordships of the Supreme Court are applicable in respect of Section 3(2) of the Act. The observation given above begins with the words "from these provisions", i.e. from Section 3(1). It cannot therefore be argued that the remarks of their Lordships of the Supreme Court are applicable in respect of Section 3(2) of the Act. I am therefore not prepared to accept that Section 3 would not be applicable to coparcenary property and Smt. Kailashi could not inherit any interest. Once it is held that Smt. Kailashi was entitled to an interest under the Act on the death of her husband and the said interest was recognised by the agreement, her possession could not be said to be in lieu of maintenance allowance and that being so, Section 11 of the Zamindari Abolition Act will not be applicable to her case. 6. It has next been contended by the learned Counsel for the Appellant that the possession of a Hindu widow in any case was for her life only and Bhumidhari rights were conferred on her on account of her being in possession of the Sir and Khudkasht land as a Hindu widow and the enlarged rights of Bhumidhari possessed by the widow will continue to be a Hindu widow's estate. Reliance has been placed on Kashi Prasad v. Inda Kuer ILR 30 Ali 490 wherein it was laid down that: An under proprietor, whose status was described by the term Mukaddam, died and his estate devolved upon his widow. Whilst the estate was in possession of the widow, the government proceeded with the settlement of the Mukaddam excluding the superior proprietor to whom an allowance by way of Malkana was given. Held that the enlarged estate of which the widow was possessed was still a Hindu widow's estate merely; the action of the government had not the effect of making her a Zamindar with a title independent of that which she derived from her husband. The facts of that case are quite distinguishable from the facts of the present case. There, the status of the under proprietor was enlarged by the settlement of the State Government and the enlarged estate was held to be the widow's estate. Bhumidhari rights are new rights conferred by the statute and is not the enlargement of the estate held by the widow in her own right. As such the question of enlargement of the estate did not arise. 7. Bhumidhari rights are new rights conferred by the statute and is not the enlargement of the estate held by the widow in her own right. As such the question of enlargement of the estate did not arise. 7. The learned Counsel for the Appellant has also relied on Basudeo v. Director of Consolidation 1969 ALJ 1027 in respect of his proposition that Smt. Kailashi acquired Asami rights. The case relied upon by him is not applicable because in that case the widow was held to be a maintenance holder of the plots in dispute. 8. The result, therefore, is that these appeals have no force and are accordingly dismissed with costs.