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1982 DIGILAW 820 (ALL)

Anirudh Kumar v. Shanti Devi

1982-07-14

N.N.SHARMA

body1982
JUDGMENT N.N. Sharma, J. - Both these appeals are being disposed of by this common judgment. Both the appeals are directed against judgment and decree of Shri S. P. Misra, learned Civil Judge, Basti who dismissed Civil Appeals Nos. 203 and 204 of 1970 arising out of original suits Nos. 100 and 72 of 1966 of the Court of Munsif Basti. 2. Both the suits were consolidated with the consent of the parties on 30-7-1968. Evidence was recorded in suit No. 100 of 1966. 3. Plaintiff in suit No. 100 of 1966 sought declaration about the gift deed dated 7-8-1964 executed by Smt. Bhagwat Devi in favour of Smt. Shanti Devi being null and void. It was further prayed that the two sale deeds dated 29-9-1964, executed by Smt. Shanti Devi in favour of defendants 2 to 5 and dated 8-10-1964 executed by Smt. Shanti Devi in favour of defendant No. 6 were illegal, null and void. Plaintiff also sought possession over the property in dispute detailed at the foot of the plaint. 4. In suit No. 72 of 1965, plaintiff Smt. Shanti Devi sought a permanent injunction restraining the defendants from interfering in her possession over the plots specified at the foot of the plan and the crop standing thereon at the time of institution of the suit. As the crop was harvested pendente-lite on deposit of Rs. 500/- by plaintiff in court, she also prayed to withdraw that amount. 5. The following pedigree which was not controverted before me at the time of arguments in these appeals shall be helpful to appreciate the points involved :- Admittedly, Tilak Dhari died in the life time of Babban Misra. According to the plaint allegations of suit No. 100 of 1966, Babban Misra was a member of joint Hindu family with Tilak Dhari and had considerable ancestral property but developed illicit intimacy with his daughter-in-law Smt Bhagwat Devi and for that reason executed a gift deed in her favour about a share in Khewat and plots in villages Bairihiwa, Khargaula and Dharsohia on 11-12-1931. It was registered instrument. He had no right to execute the gift deed of coparcenery property. Smt. Bhagwan Devi could not get possession over the gifted property under that gift deed and so she filed suit No. 526 of 1934 in the court of munsif Basti. It was registered instrument. He had no right to execute the gift deed of coparcenery property. Smt. Bhagwan Devi could not get possession over the gifted property under that gift deed and so she filed suit No. 526 of 1934 in the court of munsif Basti. A compromise was effected in suit No. 526 of 1934 between Smt. Bhagwan Devi and Palak Dhari and so a compromise decree was drawn on 10-7-1936 vide Ext. 7. Under this compromise decree, Smt. Bhagwan Devi was to remain in possession over the property specified in the compromise during her life time in lieu of maintenance. She had no right to alienate any property. Smt. Bhagwan Devi died on 9-3-1966. Smt. Shanti Devi procured a gift deed in her favour from Smt. Bhagwat Devi which was void and inoperative. The house in dispute was a residential one and Smt. Bhagwat Devi had no right to execute the deed about it. She had no right to occupy the house. 6. All these allegations were controverted by the defendants in their within statements. 7. Smt. Bhagwat Devi also claimed to be the owner of the crop which was harvested pending the suit a sum of Rs. 500 was deposited by her in the court as price thereof. 8. Both the courts below found against the appellants and upheld the contention of Smt. Shanti Devi giving rise to these appeals. 9. I have heard learned counsel for the parties and perused the records. 10. The first point which was vehemently pressed on behalf of the appellants was that in view of the compromise decree in suit No. 526 of 1934, Smt. Bhagwat Devi was simply an Asami of the disputed property and could not execute the gift deed in favour of Smt. Shanti Devi. In this connection, reliance was placed upon the compromise decree in suit No. 526 of 1934. On behalf of Palak Dhari, there were statements of Palak Dhari (P.W. 1) and Subedar (P.W. 2). A bare look at their deposition shall disclose the falsity of the case of Palak Dhari. Palak Dhari alleged his father was debauch who carried incest with his daughter-in-law. In cross examination, he had to concede that his father was not a man of loose morals and he filed this suit at the instance of Azmat Ali Pradhan who meets expenses of this litigation. Palak Dhari alleged his father was debauch who carried incest with his daughter-in-law. In cross examination, he had to concede that his father was not a man of loose morals and he filed this suit at the instance of Azmat Ali Pradhan who meets expenses of this litigation. He tried to suppress the fact that Smt. Shanti Devi is the daughter-in-law of Smt. Bhagwat Devi herself. Ram Adhar (P.W. 1), Bhagirathi (P.W. 2) and Paras Nath (D.W. 3) were examined in defence. 11. There is also on record a certified copy of the gift deed dated 11-12-1931 Ext. A-8, executed by Babban Misra who transferred half of 2 annas 8, pies share in village Gharsohiya, 4 pie share in village Bairiya and 1 anna 4 pie share in village Khargaula in favour of Smt. Bhagwat Devi for the reasons laid in that gift deed. This gift deed was given effect to in the revenue papers and the name of Smt. Bhagwat Devi was recorded as Proprietor in the Khewat of the above villages till the abolition of Zamindari. Exts. A-3 and A-7 are the copies of the Khewat of villages Bairiya and Gharsohiya which show Smt. Bhagwat Devi as the proprietor. 12. There are also on record copies of Khatauni 1372 to 1374 F. which show that the name of Smt. Bhagwat Devi was recorded on the disputed holdings as Sir and Khudkast held immediately preceding the date of vesting. She was recorded as Bhumidhar throughout in the revenue papers during Chakbandi operations vide Form 23 (Ext. A-20), allotment order Form No. 25 (Ext. A-22), Form No. 41 (Exts. A-12 and A-13). During consolidation operations, this contention of Palak Dhari was repelled and Smt. Bhagwat Devi was held to be Bhumidhar of the disputed holding vide judgments of A. C. O. (Ext. A-18), C. O. (Ext. A-4) and S. O. C. (Exts. A-5 and A-6). All these findings of the said courts became final. 13. On behalf of appellants, much stress was laid on compromise and thus it was pointed out that being a limited owner, she had no right to dispose the property or to execute any gift deed in favour of Smt. Shanti Devi. A-4) and S. O. C. (Exts. A-5 and A-6). All these findings of the said courts became final. 13. On behalf of appellants, much stress was laid on compromise and thus it was pointed out that being a limited owner, she had no right to dispose the property or to execute any gift deed in favour of Smt. Shanti Devi. In this connection, reliance was placed upon Smt. Tilari v. Director of Consolidation, 1971 RD 232 where it was observed:- "U.P. Zamindari Abolition and Land Reforms Act, 1 of 1951 Section 172 (a) (i), (ii) - Female inheriting Sir and Khudkasht from her husband before enforcement of Act - She became Bhumidhar after commencement of Act - On her death succession will be governed by Section 172 (e) (a) (i).' 14. A mere look at the facts of that case would go to disclose that in that case Smt. Budha inherited Sir and Khudkasht from her husband. In the instant case, Smt. Bhagwat Devi or Smt. Shanti Devi did not inherit the place from their husbands but they were simply donees under the gift deeds executed in their favour as discussed above. 15. It is significant to note that the gift deed executed by Babban Misra in favour of Smt. Bhagwat Devi was never assailed by Palak Dhari upto the abolition of Zamindari and on the date of vesting, Smt. Bhagwat Devi was in possession over the Sir and Khudkasht land not only as a maintenance-holder but as a proprietor. The crucial date was the date of vesting and every Sir and Khudkasht holder became Bhumidhar under Section 18 of I). P. Act i of 1951 (U.P. Zamindari Abolition & Land Reforms Act). It is further significant to note that Section 18 of the aforesaid Act did not distinguish between a male or female Sir holder and Khudkasht holder. It conferred this right as Bhumidhar on such person as was held in Raj Bali Singh v. Deputy Director of Consolidator, AIR 1972 Allahabad 291. It is further significant to note that Section 18 of the aforesaid Act did not distinguish between a male or female Sir holder and Khudkasht holder. It conferred this right as Bhumidhar on such person as was held in Raj Bali Singh v. Deputy Director of Consolidator, AIR 1972 Allahabad 291. A careful perusal oP the aforesaid authority would go to disclose that even when a life Estate was given to a widow under a compromise, she became a co-sharer in the property and co-sirdar holder in the Sir and Khudkasht plots and the right of Bhumidhari acquired by her on the date of vesting under Section 18 of the aforesaid Act was conferred on her as a fresh right which would be transferred irrespective of the recitals in the compromise decree. 16. Morever, a look at Ext. 7 shall go to disclose that it simply referred to Estate and not holding in dispute which was subsequently transferred and there was nothing in the compromise decree to cut down her right of disposal in the holding. The point is concluded now by Bishwanath Pandey v. Badami Kaur and others, AIR 1980 SC 1329 , where it was held. "Hindu Succession Act 1956, Section 14 U.P. Zamindari Abolition and Land Reforms Act (1 of 1951) Sections 171, 172 - Widow of the last proprietor of lands in dispute was recorded as such - At that time neither the U.P. Act was passed nor Succession Act came into force - Held that after passing of both the Acts the widow became absolute owner of the property and the interest of collaterals ceased to exist. Decision of Allahabad High Court dated 3-2-1969, Reversed." 17. The next contention put forward on behalf of appellants was that the question of title was not decided by the Civil Courts pending the consolidation operations. Such question was referable to the Civil Courts under Section 12 of the U.P. Consolidation of Holdings Act. 18. A perusal Exts. A-18, A 2, A-4, A-5 and A-6 shows that all the points were decided by the authorities concerned in consolidation operations and a finality attaches to these proceedings under Section 49 of the aforesaid Act. It is not open to the party to agitate this point now vide Nand Lal v. Awadh Narain, 1972 RD 71. 19. A perusal Exts. A-18, A 2, A-4, A-5 and A-6 shows that all the points were decided by the authorities concerned in consolidation operations and a finality attaches to these proceedings under Section 49 of the aforesaid Act. It is not open to the party to agitate this point now vide Nand Lal v. Awadh Narain, 1972 RD 71. 19. Learned counsel for the appellants also pointed out that the house in dispute could not be deemed to be in possession of Smt. Bhagwati Devi under Section 9 of the U.P. Act No. 1 of 1951. It is in evidence that Smt. Bhagwati Devi was the owner of the house and has validly transferred it to Smt. Shanti Devi. It has been settled with her under Section 9 to the U.P. Act 1 of 1951 and she has every right to transfer the house in favour of Smt. Shanti Devi who is residing therein as wherever there is evidence on record to show that when. So this contention of appellants is also this house was modelled by suit Bhagwati Devi and Shanti Devi devoid of force. 20. As regards the sowing of the crop in dispute there are concurrent findings of fact of the courts below that Smt. Shanti Devi had sown the crop in dispute. No illegality in that findings or in gift or sale deed was pointed out before me. 21. Thus I find no force in these appeals. 22. In the result, both the appeals fail and are dismissed with costs. The impugned judgment and decree are affirmed.