Jai Prakash v. Deputy Director of Consolidation — 1970 DIGILAW 270 (ALL)

ORDER S.N. Singh, J. - The dispute in these writ petitions is in respect of Khata No. 9 of village Gwaroli Bhojgarhi, pargana Khurja district Bulandshahr. 2. It is not disputed that this khata originally belonged to Kanchimal and Phool Chand. Kanchimal died on 28th December 1962 and was succeeded by his widow Smt. Angania. Smt. Angania adopted the Petitioner Jai Prakash and executed a registered adoption deed on 19th January 1963. Subsequent to this adoption on 9th October, 1963 Smt. Angania executed a gift deed in respect of her half share in the disputed holding in favour of Har Swaroop. This gift deed appears to have been executed in respect of more than 12-1/2 acres. Thereafter on 9th October 1964 another document was executed terming it to be a clarification deed by which it was said that although Smt. Angania intended to execute a gift deed in favour of her daughter Smt. Sagia as well as her daughter's son Har Swaroop but by a clerical mistake the name of Har Swaroop only was mentioned. This document was executed to clarify the matter. 3. On the start of consolidation proceedings in the basic year khata No. 9 was recorded in the names of Phool Chand and Har Swaroop. Jai Prakash filed an objection asserting that he being adopted son of Smt. Angania and Kanchimal was entitled to the co-tenancy right in the disputed khata and his name should be recorded in place of Har Swaroop. Another objection was filed, on behalf of Smt. Sagia daughter of Smt. Angania who also claimed cotenancy right with Har Swaroop in the disputed plot on the basis of the subsequent document which had been executed in favour of Har Swaroop and Smt. Sagia. Har Swaroop admitted the claim of Smt. Sagia and asserted that he along with Smt. Sagia was the tenureholder to the extent of half. Three cases were registered on the objections filed by these persons in respect of the same khata. 4. The Consolidation Officer considered the cases of the parties and came to the conclusion that on adoption Jai Prakash was entitled to the half of the khata in dispute as the adopted son of Kanchimal. Accordingly he directed the expunction of the name of Har Swaroop and entry of the name of Jai Prakash. 5. Three appeals were preferred against this decision before the SO(C). Accordingly he directed the expunction of the name of Har Swaroop and entry of the name of Jai Prakash. 5. Three appeals were preferred against this decision before the SO(C). The SO(C) did not accept the claim of Jai Prakash but at the same time he was of the view that since the gift in favour of Har Swaroop was in respect of the land which was more than 12-1/2 acres the transfer was invalid and the property went to the Gram Samaj. Accordingly he rejected that claims of both Har Swaroop as well as Jai Prakash and directed that the name of Gram Samaj be entered over the share of Kanchimal. 6. Since Jai Prakash and Har Swaroop were dissatisfied with the decision of the SO(C) each filed three revisions. Thus there were six revisions before the Dy. Director against the decision of the SO(C). The Dy. Director allowed the revisions of Har Swaroop and dismissed the revisions of Jai Prakash. He held that half of the disputed khata should be recorded in the names of Smt. Sagia and Har Swaroop with one fourth each. 7. Against the decision of the Dy. Director the present writ petitions Nos. 346, 347 and 348 of 1966 have been filed. It is contended on behalf of the Petitioner that on the adoption of Jai Prakash he became the son of Kanchimal with the result that the property left by Kanchimal would be deemed to be vested in him from the date of the death of Kanchimal. It was submitted that Smt. Angania had no right to transfer the property in favour of her daughter or daugther's son. Secondly it was argued that the transfer being in contravention of Section 154 of the UP ZA and LR Act was void and no right or title passed in favour of the donee or donees. 8. I have considered both these submissions but in my opinion they lack force. The question as to whether on adoption the Petitioner became the son of Kanchimal and Smt. Angania is not disputed before me and this point has been set at rest by the decision of the Supreme Court in Sawan Ram and Others Vs. Kala Wanti and Others, AIR 1967 SC 1761 . The question as to whether on adoption the Petitioner became the son of Kanchimal and Smt. Angania is not disputed before me and this point has been set at rest by the decision of the Supreme Court in Sawan Ram and Others Vs. Kala Wanti and Others, AIR 1967 SC 1761 . At the same time by virtue of Section 13 of the Hindu Adoption and Maintenance Act it is clear that adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter views or by will. In the instant case on the death of Kanchimal he was succeeded by his widow Smt. Angania with the result that the property which was left by Kanchimal vested in Smt. Angania. Adoption of the Petitioner took place subsequent to the vesting of the property in Smt. Angania, the result was that the property which once vested in Smt. Angania could not be divested on account of adoption of Jai Prakash at a later date. This matter has been put at rest by a very recent decision of the Supreme Court in Punithavalli Ammal v. Minor Ramalingam 1970 SC Cases 1 570 where in it has been held that fiction of rejection back in the case of adoption under Hindu law which is based on Hindu Law texts is no longer applicable after the passing of the Hindu Succession Act of 1956. The rule of law laid down in this authority is clearly applicable to the facts of this case. The property in dispute is bhumidhari property. Smt. Angania had an absolute right of transfer. On the death of Kanchimal, it had vested in Smt. Angania who was fully competent to execute the gift deed dispute. The contention of the learned Counsel that on adoption of Jai Prakash he will be deemed to have become the bhumidhar of the property from the time of the death of Kanchimal cannot be accepted. The above view is also supported by the decision of the Supreme Court in Sawan Ram and Others Vs. Kala Wanti and Others, AIR 1967 SC 1761 . In view of these Supreme Court decisions and Section 13 of the Hindu Adoption and Maintenance Act the first contention of the learned Counsel for the Petitioner has to be rejected. 9. The above view is also supported by the decision of the Supreme Court in Sawan Ram and Others Vs. Kala Wanti and Others, AIR 1967 SC 1761 . In view of these Supreme Court decisions and Section 13 of the Hindu Adoption and Maintenance Act the first contention of the learned Counsel for the Petitioner has to be rejected. 9. So far as the second contention is concerned this also does not hold good. There is no reason not to accept the subsequent document executed by Smt. Angania in favour of Har Swaroop and Smt. Sagia. But even assuming that the first document holds good even then it cannot be said that Har Swaroop did not get any right in the property in dispute. A transfer made in contravention of Section 154 of the UP ZA and LR Act is not void, the only liability which is incurred by a transferor or transferee in the case is that they are liable to ejectment u/s 163 of the UP ZA and LR Act, till they are ejected the transferee continues to be the tenureholder of the property purchased. The right of the transferee is only affected when there is a suit by the Gaon Sabha for ejectment and the suit is decreed for the ejectment. Till then the transferee has good title in the property transferred. In Barjor v. Dy. Director of Consolidation, Camp Kanpur 1968 AWR 156 a learned Single Judge of this Court upon an examination of the provisions of Sections 163, 166 and 189 of the UP ZA and LR Act held that a transfer in contravention of Section 154 is not void. The transferee is only liable to the penalty laid down in Section 163 subject to that liability, the transferee becomes the owner of the bhumidhari property. Thus the view taken by me is supported by this decision. The two points raised in these writ petitions fail. 10. Accordingly these petitions are dismissed. However, there will be no order as to costs.