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2002 DIGILAW 825 (RAJ)

Bibi v. B. O. R.

2002-04-22

SUNIL KUMAR GARG

body2002
Honble GARG, J.–In the instant writ petition filed under Article 226/227 of the Constitution of India, the question to be determined is whether Hindu Women Right to Property Act, 1937 (hereinafter referred to as the Act of 1937) which came into force with effect from 14.4.37 was applicable in the erstwhile State of Bikaner or not at the relevant time. (2). It arises in the following circumstances: (i) The present writ petition relates to Araji No. 24, 25 and 44 respectively measuring 52.5, 5.11 and 22.11 bighas situated in village Killawali, Tehsil Sadul Shahar, District Sri Ganganagar. (hereinafter referred to as the land in question). (ii) That the present litigation substantially is between the petitioners on the one hand and the respondents No.4, 5, 6, 7, 8 and 9 on the other hand. (iii) The petitioners mother Smt. Narain Kaur filed a suit on 28.7.60 against late Shri Kishan Singh for partition and declaration of the land in dispute alleging inter alia that the land in dispute was the ancestral property of Shri Gokha Singh who died some 25 to 26 years before filing of the suit and was survived by two sons Kishan Singh and Keshar Singh. The respondents No. 4 to 9 are legal representatives of Kishan Singh who died during pendency of the suit while Keshar Singh, petitioners father expired bit later and had one son Teksingh who also died issueless and his widow Harnam Kaur remarried and therefore, the land was claimed to be inherited by the plaintiff Narayan Kaur being the widow of Keshar Singh. It is alleged that Kishan Singh clandestinely and with intention of usurping the land got it mutated in his own name while the plaintiff Narayan Kaur claimed half share in the property. During pendency of the litigation the plaintiff Narayan Kaur expired and the petitioners being the daughters of plaintiff Narayan Kaur and Keshar Singh were substituted as her legal representatives. (iv) Through judgment dated 2.4.73, the learned trial Court after retrial of the suit, decreed the suit of the petitioners inter alia holding that Gokha Singh had two sons, out of whom Kershar Singh had expired and was survived by Tek Singh who also expired and was survived by his widow Harnam Kaur who remarried. (iv) Through judgment dated 2.4.73, the learned trial Court after retrial of the suit, decreed the suit of the petitioners inter alia holding that Gokha Singh had two sons, out of whom Kershar Singh had expired and was survived by Tek Singh who also expired and was survived by his widow Harnam Kaur who remarried. It was also found that the land in question was ancestral one and thus, the plaintiff Narayan Kaur was entitled to partition and share in the land. It was also found that on the death of Keshar Singh and Tek Singh and in view of Harnam Kaur having remarried, Narayan Kaur inherited and after her death, the present petitioners became entitled to the share of Keshar Singh which according to Hindu Law, the plaintiff Narayan Kaur was entitled to 1/3rd share and the defendant was entitled to 2/3rd share and that judgment is Annex. 3. (v) Aggrieved from that judgment both the parties preferred appeal before the Revenue Appellate Authority and the Revenue Appellate Authority through his judgment dated 31.3.78 (Annex. 4) decided both the appeals and also came to the conclusion that the Act of 1937 was applicable and the lady acquired life estate and it was further found that live estate enlarged in favour of the petitioners with the enactment of Hindu Succession Act, 1956 and the Court further found that the plaintiff was entitled to 1/2 share in the property. The appeal filed by the defendants was dismissed and the appeal filed by the plaintiff was partly allowed. It may be stated here that this 1/2 share was given to the plaintiff because the learned Revenue Appellate Authority came to the conclusion that the provisions of Act of 1937 were applicable in the present case. (vi) Aggrieved from judgment dated 31.3.78 (Annex. 4) the defendants (respondents No. 4 and 5) filed second appeal before the Board of Revenue and the Board of Revenue through judgment dated 23.8.79 allowed the appeal and dismissed the petitioners suit in toto inter alia holding that provisions of Act of 1937 were not in force in the erstwhile State of Bikaner and therefore, the findings of the appellate Authority that it was in force were found erroneous one. For coming to the above conclusion that the Act of 1937 was not in force in the erstwhile State of Bikaner, the Board took support of the fact that no notification by which provisions of the Act of 1937 were made applicable in the erstwhile State of Bikaner have been produced by the petitioners and thus because of this fact, it was found that the Act of 1937 was not in force and further more after going through the provisions of Bikaner Tenancy Act, 1945 (hereinafter referred to as the Act of 1945) specifically Section 22 of the Act of 1945, the Board of Revenue held that Act of 1937 was not applicable in the erst while state of Bikaner and thus the Board came to the conclusion that Narayan Kaur and after her death, the petitioners were not entitled to any share in the disputed land and the suit of the plaintiffs was dismissed. (vii) Aggrieved from the judgment of Board of Revenue dated 23.8.89, this writ petition has been filed by the petitioners. (3). In this writ petition, the only prayer which has been made by the learned counsel for the petitioners is that the case may be remanded back to the first appellate Court i.e. RAA so that this question whether the provisions of Act of 1937 were applicable or not may be re-examined and they may also place some relevant documents before that Court. (4). In my considered opinion this argument is not at all tenable in a writ petition purported to be filed under Article 227 of the Constitution of India. (5). The High Courts power of revision under Article 227 of the constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law, and would be exercised most sparingly in cases where grave injustice would be done unless the High Court interferes. It cannot be used as appellate or revisional power. (6). This power would not be exercised to correct an error of fact or of law not being an `error of law apparent on the face of record, of an `irregularity or illegality of procedure, unless such error affects the jurisdiction or involves a breach of the principles of natural justice; or to reappraise the evidence. (7). (6). This power would not be exercised to correct an error of fact or of law not being an `error of law apparent on the face of record, of an `irregularity or illegality of procedure, unless such error affects the jurisdiction or involves a breach of the principles of natural justice; or to reappraise the evidence. (7). This power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes. (8). It follows that where two views are possible on the facts before the trial Court has taken one of the, the High Court cannot, under Article 227, interfere merely because the other view appears to it to be more attractive. (9). In exercise of its power of superintendence, the High Court cannot re-appreciate the evidence as if it were sitting in appeal. It has the power to go into questions of facts if justice so requires, but it would not do so unless the findings of the inferior tribunal unless it is perverse; not based on any material whatever; or it is vitiated by a misdirection in law; or it is against the preponderance of evidence and has resulted in manifest injustice. (10). Nor will the High Court in exercise of this power, substitute its own judgment for that of the inferior court, whether on a question of fact or of law or interfere with the intra vires exercise of a discretionary power, unless it is `arbitrary or capricious or perverse or unless there was no evidence at all on which the inferior court could have come to the conclusion it did or them was error of finding on a `jurisdictional fact. (11). In short as regards findings of fact of the inferior court, the jurisdiction under Art., 227 is limited to only examining whether the subordinate Court kept itself within the bounds of its authority in reaching the findings of fact. (11). In short as regards findings of fact of the inferior court, the jurisdiction under Art., 227 is limited to only examining whether the subordinate Court kept itself within the bounds of its authority in reaching the findings of fact. Consequently, the High Court cannot quash the judgment of the subordinate court merely on the ground that its findings of fact were erroneous, but could do so only if the subordinate court came to its conclusions without any evidence or upon a misreading of the evidence, or if its conclusions were perverse. (12). Under Art. 227, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its findings or order is clearly perverse or patently unreasonable. (13). So far as present case is concerned, the findings of the Board of Revenue are based on correct appreciation of law and facts. From perusing the judgment of the learned Board of Revenue, it does not appear that any flagrant violation of law has been made or there is patent irregularity or error of law apparent on the face of record or it cannot be said that the findings are perverse. Therefore, all these factors are lacking. In these circumstances this Court should not interfere with the judgment of Board of Revenue under Articles 226 and 227 of the Constitution of India as the Board of Revenue gave cogent reasons in coming to the conclusion that the provisions of Act of 1937 were not applicable in the erstwhile State of Bikaner at the relevant time. (14). Whether provisions of Hindu Women Right to Property Act, 1937 were applicable to Agricultural Land or not? (15). Apart from this, there is one more aspect of the case that goes against the petitioners and touches very root of the controversy in issue and that was not discussed by the Board of Revenue. The Board of Revenue simply came to the conclusion on two grounds that the provisions of Act of 1937 were not applicable in the erstwhile state of Bikaner and, therefore, the plaintiffs were not entitled to 1/2 share in the disputed land. In this case from perusing para 1 of the plaint, it is very much clear that it relates to Araji No. 24, 25 and 44 meaning thereby the dispute pertains to agricultural land. In this case from perusing para 1 of the plaint, it is very much clear that it relates to Araji No. 24, 25 and 44 meaning thereby the dispute pertains to agricultural land. The Honble Madras High Court in the case of Tadepalli Sarojini Devi minor by father and next friend Tadikonda Rama Krishna Rao vs. Tadepalli Sri Krishtna Anjaneya Subramanyam and ors. (1), has held that provisions of Act of 1937 have no application to the agricultural land. This High Court is also in agreement with the view taken by the Honble Madras High Court long back and this view is in consonance with the provisions of Tenancy Law of any State as under the Tenancy Law, the Rules of succession & inheritance are different from the general Rules of Succession and inheritance. (16). Therefore, the question formulated above is answered that the provisions of. ``the Hindu Women Right to Property, 1937 were not applicable to the agricultural land. (17). From this point of view also, the findings recorded by the learned Board of Revenue through judgment dated 23.8.89 that the provisions of Hindu Women Right to Property Act, 1937 were not applicable in the present case appears to be sound one and are liable to be confirmed one by this Court in the present writ petition and this writ petition is liable to be dismissed. For the aforesaid reasons, this writ petition is hereby dismissed. Cost made easy.