RAMJI DIXIT DEAD Vs. BHIRGUNATH

JUDGEMENT

(1.) One Raj Kishore was possessed of sir and khudkasht lands, which on his death in l923 devolved upon his widow Sanwari. With the coming into force on July 1, 1952 of the U. P. Zamindari Abolition and Land Reforms Act 1 of 1951, Sanwari acquired the status of a bhumidhar in respect of those sir and khudkasht lands. On December 18, 1952, Sanwari made a gift of the bhumidhari lands in favour of respondents 1 and 2. Sanwari died in 1954. Claiming to be the nearest reversioners to the estate of Raj Kishore, the appellants commenced an action in the Court of Munsif, Deoria, for a declaration of their title to the lands gifted by Sanwari, and for a decree for possession of those lands on the plea, inter alia, that holding only a Hindu widow's estate in the bhumidhari lands Sanwari was incompetent to create an interest by gift which was to enure beyond her lifetime. The suit was dismissed by the Trial Court, and the decree was confirmed in appeal by the Additional Civil Judge, Deoria. In second appeal before the High Court of Allahabad Desai, C. J., and S. N. Dwivedi, J., agreed with the judgments of the courts below. Jagadish Sahai, J., was of the opinion that Sanwari held in the bhumidhari lands in dispute only a life estate. Against the decree of the High Court confirming the decree of the District Court, the plaintiffs have appealed to this Court.

(2.) The U. P. Zamindari Abolition and Land Reforms Act 1 of 1951 was primarily intended to abolish the rights of intermediaries and to define the interest of various classes of holders in possession of agricultural lands who since the extinction of the rights of intermediaries had direct relation with the State. By S. 4 on the commencement of the Act all estates situate in Uttar Pradesh stood transferred to and vested in the State free from all enumbrances. Extinction of the interest of the intermediaries did not however affect the interest of the tenants in the land who derived their right of occupation from the intermediaries. By S. 129, for the purpose of the Act, there were to be three classes of tenureholders - (1) bhumidhars; (2) sirdars and (3) asamis. By S. 130 every person belonging to one of the classes specified in Cls. (a) and (b) was to be a bhumidhar and was to have all the rights and to be subject to all the liabilities, conferred or imposed upon bhumidhars by or under the Act. The persons so entitled to bhumidhari rights were - (1) all persons who as a consequence of the acquisition of estates became bhumidhars under S. 18; and (2) all persons who acquired the rights of bhumidhars under or in accordance with the provisions of the Act. Section 18 provided, subject to exceptions not material for the purpose of this appeal, that all lands of the descriptions in Cls (a) to (e) shall on the date immediately preceding the date of vesting be deemed to be settled by the State with the intermediary, lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of the Act, be entitled to take or retain possession as a bhumidhar thereof. Persons belonging to the classes mentioned in S. 3 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, who had obtained the declaration referred to in S. 6 of that Act in respect of any holding or share thereof were also to be deemed bhumidhars of the holding or the share therein in respect of which the declaration had been made and continued in force. Section 134 provided for acquisition of bhumidhari rights by a sirdar, by paying to the credit of the State Government an amount equal to ten times the land revenue payable or deemed to be payable on the date of application for the land of which he is the sirdar. The Act provided by S. 189 that the interest of a bhumidhar in his holding or any part thereof shall be extinguished - (a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of the Act; (aa) when the holding or part thereof has been transferred or let out in contravention of the provisions of the Act; (b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land, or (c) when he has been deprived of possession and his right to recover possession is barred by limitation. By S.152 it was provided that :

(3.) Section 152 expressly provides that the interest of a bhumidhar shall be transferable, subject to the conditions contained in Ch. VIII. The conditions to which the transfer is subject are to be found in Ss. 154, 155, 156, 157, 161, 163, 164 and 165. These conditions do not purport to qualify the interest or the title in the holding of a bhumidhar, they merely impose restrictions upon the right of a bhumidhar to transfer his interest. By S. 152 no distinction is made between the power to transfer the interest by act intervivos by a made bhumidhar and a female bhumidhar Prima facie, therefore, the power of a female bhumidhar to transfer her interest in a holding by act inter vivos its as extensive as the power which a male bhumidhar may exercise in respect of his interest in a holding. By S. 169 (1) a bhumidhar is declared competent by will to bequeath his holding or any part thereof except as provided in sub-s. (2). But a female bhumidhar belonging to any of the classes specified in sub-s. (2) is declared incompetent to bequeath by will her holding. This restriction operates against every female bhumidhar entitled to a holding in the right of a female relation mentioned in sub-s. (2). It is plain on the words of the statute that a female who is entitled to the holding in the right of a widow of a male lineal descendant in the male line, or mother, daughter, father's mother, son's daughter, sister or half-sister, whether under S. 171 or under S. 174, is declared incompetent to bequeath the holding by will.