Sheoratri v. Assistant Director of Consolidation, Azamgarh
1980-09-30
R.S.SINGH
body1980
DigiLaw.ai
ORDER R.S. Singh, J. - This writ petition arises out of consolidation of holdings proceedings started under Section 9-A (2) of the U.P. Consolidation of Holdings Act. 2.. The facts of the case, in brief, are that one Sital Kandu was a tenant of the land in dispute. On his death the tenancy was inherited by his widow Smt. Reshma Kunwar. She had no male issue. Smt. Husnaki and Smt. Basmati were her two daughters. Smt. Husnaki's son was Babu Lal, respondent No. 4 and Smt. Basmati's daughter was Smt. Sheoratri, the petitioner. Smt. Reshma Kunwar deposited ten times of the rent and a declaration was granted in her favour under the provisions of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949. Thereafter she executed a will on 22-6-1950 in favour of Babu Lal and Smt. Sheoratri aforesaid. According to the petitioner, after the death of Smt. Reshma Kunwar both the petitioner and respondent No. 4 as legatees entered into possession and are continuing in possession. But the respondent No. 4 taking advantage of the illiteracy of the petitioner got his name recorded over some of the land in dispute and over some of the holdings the name of the petitioner was recorded. After the commencement of the consolidation of holdings proceedings in the village an objection under Section 9-A (2) of the U.P. Consolidation of Holdings Act was filed by the petitioner claiming to be the co-tenure-holder along with respondent No. 4 whereas respondent No. 4 also filed an objection claiming to be the sole-tenure-holder of the properties over which the name of the petitioner was recorded. 3. The Consolidation Officer held that both the petitioner and respondent No. 4 are co-tenure-holders of the khatas in dispute. The order of the Consolidation Officer was affirmed by the Settlement Officer (Consolidation). But the revision filed by the respondent No. 4 was allowed by the Assistant Director of Consolidation and it was held that the petitioner is not an heir and does not get any right on the basis of the will. The petitioner has challenged the order of the Assistant Director of Consolidation before this Court. 4. The only question for consideration in this case is as to whether a widow has got an absolute right to bequeath by will the land inherited by her from her husband.
The petitioner has challenged the order of the Assistant Director of Consolidation before this Court. 4. The only question for consideration in this case is as to whether a widow has got an absolute right to bequeath by will the land inherited by her from her husband. According to the learned counsel for the petitioner Smt. Reshma on depositing ten times of the annual rent, had obtained a declaration under Sec. 6 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949. Thus, she had full right to execute a will in favour of Smt. Sheoratri, the petitioner and Babu Lal, respondent No. 4 and on the basis of the will the petitioner is also co-tenure-holder along with respondent No. 4. But according to the learned counsel for the respondent Smt. Reshma had a limited interest in the land in dispute. Therefore, she had no right to execute a will and the respondent No. 4 being the daughter's son of Smt. Reshma inherited the property on her death and the petitioner has got no concern with the land in dispute. 5. The argument of the learned counsel for the respondent is based on general principle of law that a widow has no right to execute a will or to transfer the property beyond her lifetime. Reference was also made to Section 169 (2) of the U.P. Zamindari Abolition and Land Reforms Act which stood before it was amended in the year 1977 wherein it was provided that a widow has got no right to execute a will of the property inherited by her from her husband. Therefore, before the date of vesting when the Will was executed on 22-6-1950 she had no right to execute the Will, although after the deletion of sub-sec. (2) of Section 169 of the Amending Act, 1977 there is no restriction on the power of a widow to execute a Will in respect of the property inherited from her husband. After the amendment, now there is no difference between the rights of a man or woman regarding the right to bequeath by Will. The argument of the learned counsel for the respondent is correct. But in the present case the principles of Hindu Law are not applicable.
After the amendment, now there is no difference between the rights of a man or woman regarding the right to bequeath by Will. The argument of the learned counsel for the respondent is correct. But in the present case the principles of Hindu Law are not applicable. In this case the widow on depositing ten times of the annual rent, had been granted a declaration under Section 6 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949. This Act has been amended with retrospective effect by Section 340 of the U.P. Zamindari Abolition and Land Reforms Act and in view of Section 7 (1)(c) thereof a person on obtaining a declaration has been conferred a right to bequeath by Will or transfer by way of sale, simple mortgage or gift his interest in the holdings or a share therein. This right is a special right conferred by the Legislature on a person after obtaining a declaration irrespective of the fact that a person obtaining a declaration is male or female or widow having inherited the property from her husband. Previously also there was a dispute regarding the right of transferring the bhumidhari land by a widow. It was considered that a widow having inherited the property from her husband had no absolute right of transfer and that restriction was also applicable in a case of bhumidhari land. But this controversy was finally set at rest by the Supreme Court in the case of Ramji Dixit v. Bhrigunath, ( AIR 1968 SC 1058 ): (1968 All LJ 844) wherein it has been held that an interest of female bhumidhar is absolute and not merely a life interest. In this case it has also been held that in view of Sec. 7 (1) (c) of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 a widow obtaining a declaration under the provisions of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 has an absolute right to bequeath by Will or transfer by way of sale or gift.
In this case it has also been held that in view of Sec. 7 (1) (c) of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 a widow obtaining a declaration under the provisions of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 has an absolute right to bequeath by Will or transfer by way of sale or gift. A similar view was expressed in the case of Raghuraji v. Board of Revenue (1962 All LJ 596) wherein it was held that by virtue of sub-section (1) of Section 340 of the U.P. Zamindari Abolition and Land Reforms Act the provision of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 has been amended with retrospective effect and the declaration granted under Section 6 of the said Act conferred a right by virtue of Section 7 (1)(c) of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 to bequeath by Will or transfer by sale or gift by a person who has obtained a declaration under the provisions of this Act. This provision is equally applicable to a widow who has inherited any property from her husband. In this view of the matter Smt. Reshma who had acquired the declaration under Section 6 of the said Act on depositing ten times of the annual rent was fully competent to bequeath by Will in favour of the petitioner and respondent No. 4, the property inherited from her husband. On the strength of the Will the petitioner is a co-bhumidhar along with respondent No. 4. The view taken by the Assistant Director of Consolidation is contrary to law and is not correct. Therefore, the order of the Assistant Director of Consolidation is not sustainable in law and deserves to be quashed. 6. In the result, I allow the petition, and quash the order of the Assistant Director of Consolidation dated 21-10-1972. However, in the peculiar circumstances of the case I shall direct the parties to bear their own costs.