RAGHURAJI AND ANOTHER Vs. BOARD OF REVENUE

JUDGEMENT

(1.) By this petition under Art. 226 of the Constitution the petitioner has sought the issue of a writ of certiorari to quash an order of the Assistant Collector, 1st Class, Pratapgarh, dated 4-5-1955 refusing to implead petitioner No. 1 as a legal representative of one Bahadur Singh plaintiff deceased, and the order of the Board of Revenue dated 6-7-1956 upholding that order. The suit, which had been filed by Bahadur Singh together with petitioner No. 2, was one under Sec. 180 U.P. Tenancy Act which, even after the enforcement of the U.P.Z.A. and L.R. Act, had to be decided in accordance with the provisions of U.P. Tenancy Act. Bahadur Singh, plaintiff died on 1-10-1954 after the U.P.Z.A. and L.R. Act had come into force. Earlier, before the U.P.Z.A. and L.R. Act came into force, Bahadur Singh had obtained a declaration under Sec. 6 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 in respect of the land in suit. That declaration was obtained on 31-1-1950. After having obtained that declaration, Bahadur Singh, on 20-4-1950, executed a registered will, and devised his properties including the land in suit in favour of petitioner No. 1 Smt. Raghuraji. In the land in suit he had tenancy rights. In these circumstances, the Assistant Collector held that by the will Bhumidhari rights in the land could pass to the petitioner no. 1 on the death of Bahadur Singh, but the tenancy rights did not and could not pass to her as tenancy rights were not transferable. Following this conclusion he proceeded to hold that Bahadur Singh in fact did not transfer his tenancy rights by virtue of the will but only the Bhumidhari rights. Since the proceedings in the suit had to be continued under the U.P. Tenancy Act and the tenancy rights had not passed to petitioner No. 1 her prayer for being substituted as legal representative of Bahadur Singh was refused. The petitioner No. 1 filed an application for revision before the Additional Commissioner seeking a reference to the Board of Revenue. The Additional Commissioner was of the view that the application of Smt. Raghuraji should be allowed and petitioner No. 1 should be substituted for the deceased plaintiff Bahadur Singh. The reference came up before the Board of Revenue. The Board of Revenue disagreed with the recommendation of the Additional Commissioner and rejected the revision. It is in these circumstances that the petitioners have moved this Court.

(2.) It is to be noticed that the Board of Revenue itself came to the view that the will executed by Bahadur Singh in favour of Smt. Raghuraji was a valid will and that the trial court was wrong in rejecting the application for substitution. It was held by the Board of Revenue that "Smt. Raghuraji was clearly the legal representative of the deceased as the deceased had executed a will in her favour, the will being valid." In spite of this finding arrived at by the Board of Revenue, the Board of Revenue proceeded to examine the question whether Smt. Raghuraji having acquired Bhumidhari rights on the basis of the will could maintain the suit under Sec. 180 of the U.P. Tenancy Act. The Board of Revenue was of the view that the suit by a Bhumidhar for ejectment of trespasser did not lie under the U.P. Tenancy Act or in the revenue court; it lay under the U.P.Z.A. and L.R. Act. Consequently, it was of the view that the trial court was not wrong in holding that Smt. Raghuraji could not maintain the suit. On this ground the Board refused to interfere with the order of the trial court.

(3.) It has appeared to us to be rather curious that the order of the Board of Revenue contains contradictory findings. There is first the finding that the will by Bahadur Singh was valid and that the trial court was wrong in rejecting the application filed by Smt. Raghuraji to be substituted as legal representative of the deceased. The will was executed, as we have mentioned earlier, on 20-4-1950. If it was a valid will the rights which it could convey to the legatee were the rights which Bahadur Singh possessed on 20-4-1950. In this land those rights were the rights of a tenant. If a valid will in respect of those tenancy rights was executed, as held by the Board of Revenue, it is clear that the petitioner No. 1 was entitled to be substituted in place of the deceased and to continue the suit. The second aspect mentioned in the order of the Board of Revenue that, under the will, only the rights of Bhumidhar passed to Smt. Raghuraji, appears to have no justification or basis. The will would transfer all rights in respect of this land purported to do in the will. On the face of it, therefore, the decision of the Board of Revenue is incorrect. The Board of Revenue has thus committed an error of law in holding that the will merely devised to petitioner No. 1 the rights of a Bhumidhar and not the rights as a tenant.