KALUA Vs. DY. DIRECTOR OF CONSOLIDATION AND ORS.

JUDGEMENT

(1.) The dispute in the present petition is confined to khata No. 153. Kalua, the Petitioner, claimed succession to this khata. This khata originally belonged to Bakhtawar. On his death it was inherited by his widow Smt. Sharifan. It is admitted by the parties that Kalua is son of Smt. Sharifan. There is dispute that he was son of Bakhtawar or not. The Petitioner claimed that he was son of Umrao and not of Bakhtawar. That claim has not been found proved by the authorities below. The Settlement Officer, however, upheld the claim of Kalua on the finding that on the death of Smt. Sharifan in 1962 Kalua succeeded in preference to the reversioners. The Dy. Director reversed this view. He held that the land would go to the next reversioners of Bakhtawar after the disappearance of the life estate held by Smt. Sharifan. On this view he directed the name of Kalua to be expunged from khata No. 153.

(2.) Smt. Sharifan died in 1962 after the zamindari abolition had come into force. Sec. 172, ZA Act, deals with succession in the case of a woman holding an interest inherited as a widow. Sub -section (2) applies to a bhumidhar who has before the date of vesting inherited an interest in a holding as a widow. In the present case Bakhtawar died in 1925. Smt. Sharifan inherited an interest as a widow in 1925. So, Sub -section (2) would apply. Smt. Sharifan held the land on the date of vesting as an exproprietary tenant. So, Clause (a) of Sub -section (2) would apply. In Smt. Tilari v/s. Deputy Director, 1971 AWR 343 a Bench has held that where the widow inherited an interest before the date of vesting and she died afterwards, Clause (i) and not Clause (ii) of Sec. 172(2)(a) would apply. Under Clause (i) it has been provided that the holding shall devolve upon the nearest surviving heir to be ascertained in accordance with Sec. 171 if she was, in accordance with the personal law applicable to her, entitled to a life estate only in the holding. Clause (ii) provides that if she was, in accordance with the personal law applicable to her, entitled to the holding absolutely, the holding shall devolve in accordance with the table mentioned in Sec. 174. Smt. Tilari's case was of a Hindu widow. Under Hindu law a Hindu widow normally holds a life estate. Smt. Sharifan was a Muslim. Learned Counsel for the Respondents was not able to cite any authority or provision of Muslim personal law suggesting that Smt. Sharifan held a life estate. Consequently, Clause (i) would not on facts apply. Therefore, Clause (ii) will have to be made applicable and under it the holding shall devolve in accordance with Sec. 174. Under Sec. 171 a son is a heir. Hence the holding would go to Kalua as the son of Smt. Sharifan.

(3.) In this view it is not necessary to go into the submission that the finding that Kalua was not the son of Bakhtawar was manifestly erroneous in law. It was urged that on being admitted that Kalua was the son of Smt. Sharifan and that Smt. Sharifan was the wedded wife of Bakhtawar, there was no room for doubting that Kalua was the son of Bakhtawar and this result should not have been defeated merely because Kalua had claimed that he was the son of Umrao. But as the claim of Kalua succeeds on the other ground, it is unnecessary to deal with this submission.