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1973 DIGILAW 462 (ALL)

Barsati v. Dir. of Consolidation U. P

1973-10-19

S.K.KAUL

body1973
JUDGMENT S.K. Kaul, J. - This is a writ petition under Article 226 of the Constitution and is directed against the order of Deputy Director of Consolidation dated January 25, 1969, of which Annexure No. 4. is copy of the writ petition. 2. The dispute related to plot Nos. 113, 116, 504 and 507/1 relating to Khata No. 104 in village Benipur, Pargana and Tahsil Amethi, District Sultanpur. These plots were in the name of one Ismail. Ismail died in 1966 as minor leaving behind him petitioner as his., father. Consolidation operations were going on and since mistake was detected in respect of these plots, a dispute arose as to who was to succeed to deceased Ismail. Consequently, this dispute was referred by Assistant Consolidation Officer to the Consolidation Officer. The Consolidation Officer, vide his judgment dated April 26, 1967, of which Annexure 1 is the copy of the writ petition, allowed the petitioner's name to be mutated in respect of the plots in question in place of Ismail. An appeal was preferred by opposite party No. 4 Settlement Office' (Consolidation) by his judgment dated March 11, 1968, of which Annexure No. 2 is a copy of the writ petition, dismissed the appeal. Thereupon, a revision was preferred by opposite party No. before the Deputy Director of Consolidation. He allowed the revision by means of his judgment, of which Annexure No 4 is a true copy and this is how the matter has come up in this court. 3. I heard Sri Hargur Charan Srivastava for the petitioner and Sri S.P. Pathak for opposite party No. 4. I am of this view that the writ petition must be allowed. 4. The admitted case of the parties is that Ismail died unmarried. Petitioner is father while opposite party No. 4 is mother of deceased Ismail. It may be indeed a question whether petitioner divorced opposite party No. 4 or not, it is irrelevant for the purposes of decision inasmuch as on the death of Ismail succession to his property would be governed by the provisions of Section 171 of the U.P.Z.A. and L.R. Act. Both the Consolidation Officer and the Settlement Officer (Consolidation) were clearly of this view that by virtue of the provisions of Section 171 the petitioner would succeed to Ismail in preference to opposite party No. 4. Both the Consolidation Officer and the Settlement Officer (Consolidation) were clearly of this view that by virtue of the provisions of Section 171 the petitioner would succeed to Ismail in preference to opposite party No. 4. It is clear that on the death of Ismail, his father would succeed in preference to his mother. Indeed, the Deputy Director of Consolidation also had no grievance so far as his succession under Section 171 was concerned. He, however, accepted this novel argument that since under Section 157 of the U.P.Z.A. and L.R. Act a divorced woman has been placed in the category of disabled persons as a widow therefore, "it seems correct to me that a divorced woman may be treated as a widow for the purposes of succession to the property of her son." 5. I have purposely mentioned this phrase in inverted commas as used by the Deputy Director of Consolidation to show the error of his reasoning. Obviously, this view is erroneous a law. Section 157 of the U.P.Z.A. and L.R. Act relates to a different subject. It reads thus:- "157 (1)-A Bhumidhar, or a Sirdar or an Asami holding the land in lieu of maintenance allowance under Section 11 who is: - (a) an unmarried woman, or if married, divorced or separated from her husband or whose husband suffers from any of the disqualifications mentioned in clause (c) or (d) or a widow; (b) a minor whose father suffers from any of the disqualifications mentioned in clause (c) or (d) or has died; (c) a lunatic or an idiot; (d) a person incapable of cultivating by reasons or blindness, or other physical infirmity; (e) prosecuting studies in a recognised institution and does not exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in clause (c) or (d) or has died; (f) in the Military, Naval, or Air service of Indian Dominion; or (g) under detention or imprisonment; may let the whole or any part of his holding, provided that in the case of a holding held jointly by more persons than one, but one or more of them, but not all, are subject to the disabilities mentioned in clauses (a) to (g), the person or persons may let out his or their share in holding. It is, therefore, clear that for the purposes of letting out the whole or any part of his holding, the disability, mentioned in the section, has to be read. It does not mean that in the category of disabled persons all those who are mentioned automatically should be treated as coming in the category of heirs as mentioned in Section 171 of tho Act. The view taken by the Deputy Director of Consolidation, therefore, being erroneous in law, cannot be sustained. 6. I would, therefore, allow the writ petition with costs and quash the order of the Deputy Director of Consolidation dated January 25, 1969, contained in Annexure No. 4 of the writ petition, and restore the order of the Settlement Officer (Consolidation) dated March 11, 1968, of which Annexure No. 2 is a copy.