Ram Dhakeli v. Sukhrani — 1981 DIGILAW 601 (ALL)

Judgment Deoki Nandan, J. 1. THIS is a defendant's second appeal from a decree cancelling a sale-deed executed by defendant-appellant no. 1 in favour of the second appellant who was the 8th defendant in the suit, to the extent of 1/2 of the 1/2 share sold and also cancelling a deed of surrender executed by the plaintiff-respondent no. 1 in favour of the second appellant. These are the relevant facts : One Man Singh had two sons Ujagar Singh and Sukhnandan Singh. The plaintiff Smt. Sukhrani is the widow of Sukhnandan. Defendant nos. 2 to 7 who are respondent nos. 2 to 7, represented the branch of Ujagar Singh. The property in suit is in the nature of agricultural land of which Man Singh was the Sir-holder before the abolition of Zamindari and after him Sukhnandan and Ujagar Singh became the joint Sir-holders, the share of the respective branch being 1/2 each in the property. Sukhnandan died in the year 1941 leaving him surviving his widow Smt. Sukhrani, a son Prahlad and three daughters Shyama Bai, Ram Pyari and Sia Pyari. Prahlad Singh died on 6th June, 1952, that is some 24 days before the abolition of Zamindari. Smt. Ram Dhakeli the first defendant-appellant is his widow. Yadunath Singh, the 8th defendant who is the second appellant, is the husband of Shyama Bai, one of the three daughters of Sukhnandan and Smt. Sukhrani. According to the plaintiffs case, on the death of Sukhnandan in the year 1941, she along with her son Prahlad became the joint Sir-holders of the land along with the members of Ujagar Singh's branch. However, as is not unusual only the name of Prahlad Singh, the son was entered in the revenue papers. According to the plaintiffs case, on the death of Sukhnandan in the year 1941, she along with her son Prahlad became the joint Sir-holders of the land along with the members of Ujagar Singh's branch. However, as is not unusual only the name of Prahlad Singh, the son was entered in the revenue papers. On the death of Prahlad Singh, although the plaintiff Smt. Sukhrani continued to have a 1/2 share in the 1/2 share of Sukhnandan, only the name of Smt. Ram Dhakeli, widow of Prahlad Singh was entered in the revenue papers, but her i. e. Smt. Sukhrani's right not having been questioned by any one she did not know of it and the things continued like that until Yadunath Singh, the plaintiff's son-in-law brought Smt. Ram Dhakeli under his influence and obtained a sale-deed from her on 11th July, 1966 for the entire 1/2 share of Sukhnandan's branch in the land in suit and also obtained, by fraud, mis-representation and undue influence, a deed of surrender from the plaintiff Smt. Sukhrani on 23rd July, 1966 in respect of her share, in the land. The trial court accepted the plaintiffs case and decreed the suit cancelling the deed of surrender dated 23rd July, 1966 in its entirety and declaring that the sale-deed dated 11th June, 1966 was valid only in respect of 1/4th share in the whole of the property in suit and was invalid in respect of the rest. The lower appellate court cofirmed that decree but also passed a decree for payment of Rs.500/- as special costs against Smt. Ram Dhakeli and Yadunath Singh who were the appellants before it on the ground that it had been falsely and fraudulently represented before it that Smt. Sukhrani had died during the pendency of the appeal before it when in fact she had not. 2. THE four questions on which notice of the second appeal was issued by this Court after hearing under Order 41 rule 11 C.P.C. are as follows :- "I. Whether the provisions of Hindu Women's Rights to the Property Act, 1937 applied to agricultural land covered by the governors' provinces in India as the devolution to the agricultural land was included in the state list II. Whether Smt. Sukhrani as widow could inherit right in agricultural land under THE Hindu Woman's Rights to Property Act, 1937? III. Whether Smt. Sukhrani as widow could inherit right in agricultural land under THE Hindu Woman's Rights to Property Act, 1937? III. Whether the suit of the plaintiffs having been filed in the year 1968 could be within time from the death of her husband Sukhnandan Singh in the year 1941? IV. Whether the plaintiff herself having surrendered her right in favour of her son can reagitate the same after a period of 27 years?'' Having heard learned counsel for the appellants I find that the first two questions appear to have been raised on account of some mis-apprehension of the correct facts. The validity of the provisions of the Hindu Women's Rights to Property Act, 1937 was the subject matter of consideration by the Federal Court on a special reference made by the Governor General in the year 1941. The opinion of the Federal Court is reported as : In the matter of the Hindu Women's Rights to Property Act, 1937, A. I. R. 1941 F.C. 72. The Federal Court held that the Hindu Woman's Rights to Property Act, 1937 and the Hindu Women's Rights to Property (Amendment) Act, 1938, do not operate to regulate succession to agricultural land in the Governors Provinces and do operate to regulate devolution by survivorship of property other than agricultural land. The reason was that the Central legislature was not competent under the Government of India Act 1935 to legislate in respect of succession to agricultural land. The Federal Court held that when a Legislature with limited and restricted powers makes use of a word of such wide and general import the word 'property' the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the court is bound to construe the word "property" as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate, that is to say, property other than agricultural land. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the court is bound to construe the word "property" as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate, that is to say, property other than agricultural land. The said opinion of the Federal Court was followed by appropriate legislation by some of the provinces in India extending the operation of the Hindu Women's Rights to Property Act, 1937 and the amending Act of 1938 to agricultural land also. The Act passed in the Governors' provinces known as United Provinces at that time, was the U. P. Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1942 (U. P. Act No. XI of 1942). That applied the Hindu Women's Rights to Property Act to all agricultural land retrospectively. An exception was, however, made in respect of succession to those rights in agricultural land which were regulated by Special law such as tenancy rights. 3. THE succession to the rights of a Sir holder in agricultural land was governed by his personal law, and not by the U.P. Tenancy Act, 1939, which was in force when Sukhnandan and Prahlad died. THE result was that on the death of Sukhnandan in the year 1941, Smt. Sukhrani his widow got the same interest which he had in the land as a sir-holder, and on the death of Prahlad on 6th June, 1952 his widow Smt. Ram Dhakeli got the same interest which he had in the land as Sir-holder, with the result that the two widows Smt. Sukhrani and Smt. Ram Dhakeli were joint Sir-holders of the land in suit along with the branch of Ujagar Singh, and on the abolition of Zamindari both of them must be deemed to have become co-bhumidhars along with them. 4. 4. THE first two questions raised are, therefore, answered by saying that the provisions of the Hindu Women's Rights to Property Act, 1937, applied to succession of agricultural land in so far as it was not governed by the provisions of the U. P. Tenancy Act 1939, by virtue of the U.P. Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1942 (U. P. Act No. XI of 1942) and that Smt. Sukhrani did inherit on the death of her husband Sukhnandan the same interest which he had in the land in suit as a sir-holder thereof, under the provisions of Hindu Women's Rights to Property Act, 1937 as amended by Act No. XI of 1938. So far as the third question is concerned the answer thereto is clear. The two deeds for the cancellation of which the suit was instituted were dated 11th July, 1966 and 23rd July, 1966. The suit having been instituted on 10th July, 1969 within three years from the dates of both the said instruments it was clearly within limitation and the third question as raised in the appeal is clearly misconceived and does not arise on the facts of the case. 5. THE fourth question is equally mis-conceived. It has been found by the lower appellate court that the alleged oral surrender of her rights in the land in suit by Smt. Sukhrani was not a fact. That being so, there was no question of re-agitating the same after a period of 27 years. THE finding is that Smt Sukhrani never surrendered her rights in the land in suit, whether orally or by the instrument dated 23rd July, 1966. About the latter, the finding is that it was not the voluntary act of Smt. Sukhrani. That finding is based on evidence and does not appear to be vitiated by any error of law. Being a finding as to a question of fact, it is not open to this Court to re-appraise the evidence with respect thereto. 6. A word about the award of ordinary costs of litigation and the special costs in the sum of Rs. 500/-against the two appellants Smt. Ram Dhakeli and Yadunath Singh. Being a finding as to a question of fact, it is not open to this Court to re-appraise the evidence with respect thereto. 6. A word about the award of ordinary costs of litigation and the special costs in the sum of Rs. 500/-against the two appellants Smt. Ram Dhakeli and Yadunath Singh. Whatever may have been the reasons for the award of the special costs by the lower appellate court it is clear that the costs should not have been awarded against Smt. Ram Dhakeli and should have been awarded only against Yadunath Singh. It is accordingly necessary to modify the decree of the lower appellate court in this respect. It is also necessary to clearify that the sale-deed dated 11th July, 1966 executed by Smt. Ram Dhakeli was only in respect of 1/2 share in the land in suit. It was accordingly sufficient to say that it shall be valid to the extent of 1/2 of the 1/2 share, that is, in respect of 1/4 of the whole. It was not necessary to say that it was invalid in respect of 3/4 share of the land in suit inasmuch as Smt. Ram Dhakeli never purported to sell the 1/2 share of the branch of Ujagar Singh represented by defendants nos. 2 to 7. In the result, subject to the modification that the decree awarding costs as also special costs in the sum of Rs. 500/- shall be deemed to have been passed only against Yadunath Singh, who was the 8th defendant in the suit and is the second appellant in this court. The appeal fails and is dismissed. There will be no order as to costs of the appeal in this Court. Appeal dismissed.