JUDGMENT S.K. Lakhtakia, Member - This reference has been made by Additional Commissioner, Faizabad Division, Faizabad on March 26, 1980 through which he has recommended that the order passed by the Tahsildar dated December 16, 1987 and the order of the S.D.O. dated June 30, 1978 be set aside and the mutation be ordered in favour of Smt. Draupadi. 2. The facts of this case in brief are that one Surfaraj was the tenure-holder of the property in dispute. On his death the property was mutated in favour of Smt. Ramraji the widow of Surya Pal Singh who was the nephew of Sarfraj Singh. On the death of Smt. Ramraji, Drauapdi the mother of the revisionist applied for mutation claiming herself to be the real sister of Ramraji's husband Suryapal Singh. On publication of proclamation the opposite party Bhagwati Singh filed an objection. He denied that Draupadi was the sister of Surya Pal Singh and he himself claimed mutation in his favour alleging himself to be the real brother of Smt. Ramraji, The learned Naib-Tahsildar rejected the prayer of Smt. Draupadi and ordered mutation in favour of Bhagwati Singh. His order was upheld in appeal, hence a revision as filed before the Commissioners. The learned Additional Commissioner disagreeing with the finding of the courts below has recommended that Smt. Draupadi be mutated in place of Smt. Ramraji and the orders passed by the courts below in favour of Bhagwati be set-aside. 3. Heard the learned counsels for both the parties, perused the record. 4. The main point in this case to be consider is whether succession in the instant case is to be governed by Section 172 or Section 174, Z.A. and L.R. Act. 5. The learned counsel for the opposite party argued that Smt. Ramraji was not an heir of Sarfaraj Singh, hence it cannot be said that she get the property on succession and, therefore, the property shall be deemed to be self acquired by her and, possession of succession under Section 174, Z.A. and L.R. Act would apply. 6. The learned counsel for the revisionist contended that on the death of Saragaraj Singh Surya Pal Singh was alive, hence he was his heir but before his name could be mutated he also died and that was why the name of his widow Smt. Ramraji was mutated. 6. The learned counsel for the revisionist contended that on the death of Saragaraj Singh Surya Pal Singh was alive, hence he was his heir but before his name could be mutated he also died and that was why the name of his widow Smt. Ramraji was mutated. Consequently the provisions of Section 172 and not Section 174, Z.A. and L.R. Act would be attracted in this case. 7. The record clearly speaks that Sarafraj Singh died in 1957 whereas Suryapal Singh died in 1958, hence the latter was alive at the time of the death of Sarafaraj Singh. Suryapal Singh being the nephew of Sarafaraj Singh was his heir under Section 171 Z.A. and L.R Act. Suryapal also died in 1958 leaving his widow Smt. Ramraji who naturally became his heir under section 171, Z.A. and L.R. Act. The order of mutation was passed in favour of Smt. Ramraji in 1959 which clearly shows that Surya Pal Singh had already died and that his why the name of Smt. Ramraji was recorded as his widow. This evidence therefore clearly proves the property was not self acquired by Ramraji but she get it on succession from Sarafarah Singh through her husband Surya Pal Singh. Consequently on her death succession would be governed by Section 172 Z.A. and L.R. Act and not Section 174 of the Z.A. and L.R. Act. Both the courts have held Bhagwati Singh to be the real brother of Ramraji but that finding would not help him because he is not the heir under Section 171 Z.A. and L.R. Act of Surya Pal Singh. No order of mutation could be passed in his favour even though he is the real brother of the deceased. The learned Naib Tahsildar and the learned S.D.O. both failed to appreciate the evidence on this score, hence their orders upholding the claim of Bhagwati Singh deserve to be set aside. 8. Even though Bhagwati Singh denied that Smt. Draupadi is not the sister of suryapal Singh but the learned Additional Commissioner has shifted the evidence and has come to the finding that she is real sister of the Surya Pal Singh. There is no reason to differ with his opinion when Bhagwati Singh is not going to get the property. 8. Even though Bhagwati Singh denied that Smt. Draupadi is not the sister of suryapal Singh but the learned Additional Commissioner has shifted the evidence and has come to the finding that she is real sister of the Surya Pal Singh. There is no reason to differ with his opinion when Bhagwati Singh is not going to get the property. In these circumstances the reference made by the learned Additional commissioner deserves to be accepted and the orders passed by the leared Tahsildar and the S.D.O. are liable to be set aside. 9. In view of the above discussion the reference in accepted and the revision is allowed. The orders passed by the Tahsildar and S.D.O. dated December 16, 1976 and June 30, 1978 respectively are set aside and the name of Smt. Draupadi is ordered to be mutated in place of Smt. Ramraji widow of Suryapal Singh.