Ram Kumar v. Krishna Chandra — 1976 DIGILAW 416 (ALL)

JUDGMENT G.S. Sial, Member. - These are two connected second appeals against the judgment and decree dated 6.12.1973 passed by the learned Additional Commissioner, Varanasi Division, in first appeals arising out of two suits under section 229-B of the U.P.Z.A. and L.R. Act. 2. Briefly, the facts of the case are that Ram Kumar, plaintiff, brought the suits alleging that during the lifetime of Bachcha his two sons separated; that property of Schedule Kha was ancestral and joint in which Bachcha had ?rd share and Ram Siroman and Sukhnandan had ?rd shares; that property of Schedule Kha was the self acquisition of Ram Siroman who died on 17.5.69; that Bachcha executed will dated 13.10.49 in favour of his two sons wherein it as stated that both the sons will get equal share and after the death of Ram Siroman the land will go to Sukhnandan. Thus Ram Siroman was given only life interest under the will. Bachacha died on 7.1.1950. It was further alleged that Ram Siroman executed a Will on 18.2.1969 in favour of the plaintiff and the plaintiff has become owner and in possession of Schedule Kha property and that defendants have no concern with the disputed land. Hence the suit for sole bhumidhari. The defence was that the plaintiff has no title or possession over the disputed land; that Ram Sirorman died on 17.5.69 and Smt. Ram Dei defendant no. 1 became legal heir and she executed a gift deed in his favour of the plaintiff and that the plaintiff in collusion with witnesses managed to get the thumb impression of the Ram Siroman on some paper during his illness and got a forge, fictitious, illegal and ineffective Will deed by Bachcha does not confer any right to title of the plaintiff. 3. The trial court as well as the lower appellate court dismissed the plaintiff's suits. Hence the second appeals by the plaintiff before the Board. 4. The learned counsel for the plaintiff appellant pressed his case on two grounds: First, he argued that it was admitted between the parties that the tenancy was fixed rate tenancy and in the registered will Bachcha had stipulated about the separation of family and further that after his death ram Siroman will get only life interest over of the property ?rd of his share. There is no denial about this will in the written statement. There is no denial about this will in the written statement. The courts below have also not discarded this will. He submitted the according to the will Ram Siroman will get only life interest and upon his death the property reverted back to Sukhnandan. There is also a recital in the will that no female issue will get any share. Therefore, he contended that even after the abolition of Zamindari, this 'will' will operate and under section 18 of the Z.A. and L.R. Act Ram Siroman's interest would remain limited. He further submitted that since there was separation between the member of the coparcener hence the will executed by Bachcha will remain operative even the enforcement of the U.P.Z.A. and L.R. Act. He further argued that the devolution of right could not be governed by the provisions of a Hindu Law but by the provisions contained in section 95 and 96 of the Indian succession Ac, which according to him has not been repealed. In this contention he referred to Rule 339 of the U.P.Z.A. and L.R. Act. He further argued hat no compensation was awarded to the intermediary in respect of fixed rate tenancy and hence only the nomenclature of the tenancy underwent a change in the right of the tenure-holder in respect of that land remained operative and as a result of this, the will would be effective. Secondly, he urged that court below acted illegally in brushing aside the subsequent will lightly without considering the evidence on record and their finding on this point is perverse. 5. The learned counsel for the respondent submitted that as far as the second will is concerned there is a clear finding of fact by the courts below that this document is fictitious and Farzi one and thereunder no rights can pass on the appellant. He urged that this finding of fact being based on a full and proper consideration of the evidence on record cannot be challenged in second appeal. He urged that this finding of fact being based on a full and proper consideration of the evidence on record cannot be challenged in second appeal. As regards the first point argued by the appellant he submitted that even those person who were given life estate of limited interest before the commencement of the U.P.Z.A. and L.R. Act were given absolute rights by the provisions of the U.P.Z.A. and L.R. Act and the condition which was imposed prior to its enforcement that no female would get a right of share in the property in dispute would vanish. He stated that the rights of Smt. Ram Dei were recognized by the consideration authorities and the entries made by them have now become final. He further submitted that the suit of a plaintiff for declaration of sole tenancy was bound to fail as he could be no stretch of imagination be the sole tenant of the land in dispute and the courts below were correct in dismissing the suit. He further contended that at the stage of second appeal he cannot be given the option to amend his relief and seek co-bhumidhari rights in the dispute land. He referred to 1954 R.D. page 79 and 1971 R.D. page 460 in support of his contention. 6. In reply the learned counsel for the appellant argued that in the interest of justice the courts will grant that much of relief to which the plaintiff is found to be entitled even if he had sought for a higher relief. 7. I have considered the arguments of both sides and have gone through the record of the case. The learned counsel for the appellant has urged two points in his favour. The second point submitted by him was the courts below acted illegally in brushing aside the will execute db Ram Siroman without considering the evidence on record and that their finding on this point is perverse. I have gone through the judgment of the trial court as well as the lower appellate court who clearly recorded a finding of fact that the so-called will is fictitious and farzi document and cannot be relied upon. I find that this finding is based on a full and proper consideration of the entire evidence on record and as such cannot be challenged in second appeal. I find that this finding is based on a full and proper consideration of the entire evidence on record and as such cannot be challenged in second appeal. Therefore there is no force in this contention of the learned counsel for the appellant. As regard the first ground argued by the learned counsel it can be spilt up into several points. Firstly,he submitted that the tenancy being a fixed rate tenancy prior to the enforcement of U.P.Z.A. and L.R. Act and as no compensation was awarded to any intermediary in respect of fixed rate tenancy hence only nomenclature of the tenancy under went a change and the rights of the tenure-holders in respect of that land would remain operative and hence the 'will' will be effective. I am afraid, I cannot accept the contention of the learned counsel in this behalf. The Hon'ble High Court have held in a number of cases that have held in a number of cases that the U.P.Z.A. and L.R. Act uprooted the entire pre-existing tenures and conferred fresh rights of tenure. The bhumidhari rights which were created by section 18 would be a new right altogether. The Hon'ble High Court have also held that various kinds of pre-existing tenancy rights were equally abolished, and fresh rights conferred on the tenure-holders. This is the view contained in R.D. 1968 page 347 at page 348. the learned counsel tried to support his case by referring to A.L.J. 1970 page 1104 and U.P. Revenue Cases 1967 page 206. I am afraid these two rulings are not applicable at all to the facts of the case. They deal with the rights of the tenure-holders in respect of trees standing on certain plots and have nothing to do with the rights of tenure as create by the U.P.Z.A. and L.R. Act. Secondly, he tried to make out that the will of Bachcha should be treated as a family arrangement and in support thereof he quote A.I.R. 1972 (S.C.) page 1280. I have gone through this ruling and find that this is not application to the facts of the case. A will to operate as a valid family arrangement must be with the willing consent of the various members of the family intended to be generally and reasonably for the benefit of the family and further in should be executed with the object of compromise doubtful or disputed rights. A will to operate as a valid family arrangement must be with the willing consent of the various members of the family intended to be generally and reasonably for the benefit of the family and further in should be executed with the object of compromise doubtful or disputed rights. There is no evidence to prove that the will executed by Bachcha was with the agreement amongst the various member of the family or further that it was meant to resolve as dispute. In fact the nature of the will in an expression of the desire of Bachcha, ancestor, that his share of the land should go to his sons who begets a son. Therefore I am unable to agree that the will can be treated as a family arrangement. 8. Now the question arises whether the will executed by Bachcha on 18.10.49 will operate upon the death of Ram Siroman on 17.5.69 and thus the interest of Ram Siroman would be a limited interest confined to this lifetime. I am afraid that the answer has to be given in the negative. There is no concept of limited bhumidhari under the U.P.Z.A. and L.R. Act. The restrictions that have been placed on a bhumidhar are contained in the Act itself, Section 152 of the act provides that interest of a bhumidhar shall be transferable subject to certain restriction as contained in section 154 to 156 of the Act. Thus section 152 of the Act gives full rights to each bhumidhar to make a transfer of his interest in the bhumidhari land and this right is not subject to any other restriction. Even a Hindu Widow who had become bhumidhar of the land was held to be entitled to pass absolute interest to her transferee in a Full Bench decision of the Hon'ble High Court reported in 1964 R.D. page 80. Further section 171 of the U.P.Z.A. and L.R. Act provides for a general order of succession the death of a male bhumidahr and this is applicable to Hindus, Muslims and Christians alike. It is thus clear that a bhumidhar's rights to disposal of his land cannot be subject to restrictions. I am, therefore, afraid that the will cannot limit the rights of the bhumidahr who has been recognized as such also under the U.P. Consolidation of Holdings Act. 9. It is thus clear that a bhumidhar's rights to disposal of his land cannot be subject to restrictions. I am, therefore, afraid that the will cannot limit the rights of the bhumidahr who has been recognized as such also under the U.P. Consolidation of Holdings Act. 9. Thirdly, he argued that even if he has brought a suit for declaration claiming sole bhumidhari rights he should be awarded the relief co-tenancy in case he is found entitled thereto. In support of his contention he has cited 1966 A.L.J. page 1063. I have gone through this ruling and find that this is not applicable to the facts of the case. In this ruling the only proposition held is that a suit for declaration of co-tenure-holdership can be granted under section 229-B of the U.P.Z.A. and L.R. Act. It does not lay down the proposition that where declaration for sole bhumidari is sought a declaration for co-bhumidhari can also be given. In fact to this case the ruling contained in R.D. 1971 page 460 is more appropriately applicable. In this case it has been clearly held that a declaration of co-sirdari cannot be given when the suit claims sole sirdari. It has been laid down in 1954 R.D. page 79 that while amendment of the plaint may be allowed, so enlarge the subject-matter of the claim but not to change it. There is big gulf between the claim of sole-tenancy and the claim of co-tenancy. Hence it was held that an amendment to change the claim of sole tenancy into co-tenancy changes the nature of the suit. Under the circumstances I am afraid that no claim for co-tenancy can be considered when the suit is for sole bhumidhari. 10. I view of my findings contained above, I find that there is substance in these second appeals and that the orders of the court below are correct and not call for any interference. The appeal are accordingly dismissed with costs and counsel's fee of Rs. 30/-. 11. This order will govern S.a. Nos. 269 and 270 of 73-74/Jaunpur. 12. Judgment signed, dated and pronounced in open court.