MAINIA DEAD Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) This appeal by special leave under Art. 136 of the Constitution of India against the judgment of a learned single Judge of the Allahabad High Court in Writ Petition No. 3048 of 1973 decided on May 11,1979.

(2.) The subject-matter of the dispute is a holding comprising of Khata No. 141 in village Khera, Laxmipur, Pargana Kashipur in District Nainital of which one Chain Sukh was initially the occupancy tenant. The said Chain Sukh died issueless prior to the date of vesting, that is, 1-7-1952 under the U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Zamindari Abolition Act") survived by his widow, Smt. Sukhia, The interest of Chain Sukh as the occupancy tenant of the holding devolved upon his widow, Smt. Sukhia, in accordance with S. 35 of the United Provinces Tenancy Act. 1939 (hereinafter referred to as "the Tenancy Act") in the absence of any male lineal descendant of Chain Sukh. The appellant, Smt. Mainia, is the sister of deceased Chain Sukh. Even according to the appellant, Smt. Mainia, Chain Sukh's widow, Smt. Sukhia, remarried Gopal Singh in "Karwa" form according to the caste custom about two years after the death of Chain Sukh and a son, Chander Pal, respondent No. 4, was born to Sukhia during her wedlock with Gopal Singh. Smt. Sukhia continued to remain in possession of this holding till her death in 1965.

(3.) A dispute arose between appellant, Smt. Mainia and respondent No. 4, Chander Pal, during the consolidation proceedings under the U. P. Consolidation of Land Holdings Act in respect of this holding, each of them claiming sole interest therein to the exclusion of the other. Ultimately, the Consolidation Officer, Afzalgarh, by his order dated 29-1-1972 (Annexure III) passed under S. 9-A of the Act dismissed Chander Pal's claim to the holding. The Consolidation Officer held that Smt. Sukhia on her remarriage with Gopal Singh lost her interest in the holding and by virtue of S. 171 of the Zamindari Abolition Act, appellant, Smt. Mainia, being the sister of Chain Sukh inherited the interest in the holding. It was held that Chander Pal, not being the son of Smt. Sukhia from Chain Sukh but the son born to Smt. Sukhia after her remarriage with Gopal Singh, could not inherit as a heir of Chain Sukh. The Settlement Officer, Consolidation, Nainital dismissed Chander Pal's appeal under S. 11 against the order of the Consolidation Officer by order dated 14- 2-1972 (Annexure IV). However, the Settlement Officer held that even though Smt. Sukhia lived in the house of Gopal Singh for several years there is no positive evidence of her remarriage with Gopal Singh and, therefore, a legal marriage of Smt. Sukhia with Gopal Singh is not proved. It was held that Smt. Sukhia cultivated the land throughout as the widow of Chain Sukh and therefore Chain Sukh's sister Smt. Mainia inherited it after the death of Smt. Sukhia. A revision by Chander Pal to the Deputy Director Consolidation, Moradabad, Camp Kashipur, under S. 48 was also dismissed by order dated 15-11-1972 (Annexure V). It was observed that Smt. Mainia in her reply dated 10-12-1970 had stated that Smt. Sukhia did "Karwa" with Gopal Singh but Smt. Sukhia had been shown in the family register as widow of Chain Sukh which shows that Smt. Sukhia was treated as a widow of Chain Sukh till the time of her death. It was held that Smt. Sukhia's "Karwa" with Gopal Singh not being proved to be a legal marriage, the succession would be governed on the basis that she was Chain Sukh's widow at the time of her death.