LAWS(ALL)-1981-12-39

JAGDAMBA PRASAD PANDEY Vs. DEPUTY DIRECTOR OF CONSOLIDATION

Decided On December 16, 1981
JAGDAMBA PRASAD PANDEY Appellant
V/S
DEPUTY DIRECTOR OF CONSOLIDATION Respondents

JUDGEMENT

(1.) The dispute in the present writ petition relates to land of khstas Nos. 98, 120 and 121 situate in village Gandiyawan, Tahsil Patti, district Pratapgarh, They were recorded in the name of Ambika Prasad, the father of petitioner No. 1, and other co-sharers in the basic year Khatauni. In village Malangpur the land of Khatas Nos. 135 and 136 is not in dispute. The name of Ambika Prasad was recorded as sole tenant in Khata No. 137 and the names of Ambika Prasad and Devi Dutt were recorded on Khata No. 135 in the basic year Khatauni The dispute in the present writ petition is with regard to the share of Ambika Prasad, Kashi Prasad and Ram Naresh, who are dead. Petitioner No. 1 Jagdamba Prasad claimed that his father, Kashi Prasad, was adopted son of Ram Bharosey and he is entitled to the share of Ram Bharosey in the land in dispute. The case of petitioner No. 2 Bhupati Dass, son of Ambika Prasad was that Smt. Bachchi, widow of Ram Naresh, opposite party No. 4, is not heir of Ambika Prasad as by way of family settlement she had relinquished all her rights in the disputed land owned by Ambika Prasad. The case was contested by the opposite parties. Smt. Bachchi, widow of Ram Naresh, also contested the case. She asserted that the father of petitioner No 1 was not the adopted son of Ram Bharosey and she also denied to have executed the family settlement deed and she asserted to be entitled to one fourth share in the land in dispute, which had devolved upon her on the death of her father-in-law Ambika Prasad, being widow of his pre-deceased son Ram Naresh. The Deputy Director of Consolidation as well as the Settlement Officer (Consolidation) held that petitioner No. 1 Jagdamba Prasad has not been able to prove adoption of his father Kashi Prasad as alleged by him. This is a concurrent finding of fact recorded by the consolidation authorities and I do not find any infirmity in the said finding nor any interference can be made on the said question of fact decided by the consolidation authorities in exercise of powers under Article 226 of the Constitution. So far as the question about relinquishment of her rights by Smt. Bachchi is concerned, I find that opposite parties Nos. 1 and 2 have rightly held that she has not made any surrender of her rights in respect of the in terest which had devolved upon her being widow of pre-deceased son of Ambika Prasad, At the time of the alleged execution of the surrender deed Sri Ambika Prasad the father of her husband Ram Naresh, was alive and the property by then had not at all devolved upon her. Opposite parties No 1 and 2 have record ed, a concurrent finding to the effect that Smt. Bachchi had not made surrender of the land in dispute and she is in possession over the land which she had inherited upon the death of Ambika Prasad. Her name was also mutated in the revenue records. It is well settled that a deed of relinquishment, release or surrender, which would operate to extinguish the interest in an immovable property worth more than Rs. 100/- requires registration and it would be inadmissible in evidence for want of registration. In Sahib Singh v. Dalip Singh, A. I R. 1933, Lah. 422 a learned single Judge of the Lahore High Court held that: "a deed by which certain rights are relinquished in respect of pro perty over Rs. 100 requires registration and is inadmissible as evidence without registration. " In Abdul Rahman v. Gurdit Singh, A. I R. 1934 Lah. 604, a High Court held that: "a document which purports to declare that the executants hold no title in the house and have relinquished their connection with it, requires registration and if unregistered is not admissible in evidence. " In Secy of State v. Krishna Prasad, A. I. R. 1936 Cal. 774, the Division Bench of the Calcutta High Court held that; "in order to show that a party has contracted himself out of his rights and surrendered what he had already acquired with reference to property the value of which is more than Rs. 100. , the transaction must be evidenced by a registered document under the Registration Act 1877. . . . . . . . . . . . . . . A plea that a particular deed requires registration is a pure question of law which is not dependent on any disputed facts can be allowed for the first time in appeal. " In Premsukhdas v. Peerkhan, A. I. R. 1926 Nag. 21. Hon'ble Wadegaonkar, A. C. J. held "a release, when in writing, in order to be operative in law must be registered under Section 17, when the amount of the claim of interest is immovable property which is extinguished by the release of the value of Rs. 100 or upwards. " In this view of the matter I am of the opinion that even if the said deed of relinquishment be taken to have been executed by opposite party No. 4 in favour of the petitioners in the year 1949 disclaiming the interest in the property of her father-in-law, the same could not be read and relied upon in evidence being inadmissible for want of registration. Learned counsel for the petitioner has, however, contended that the aforesaid deed of agreement by which Smt. Bachchi, opposite party No 4 had relinquished her life estate in the property in question in favour of the petitioners, who were her husband's collaterals, would not be compulsorily registrable as it would not amount to creating right, title or interest in the land in question. I do not find any merit in this contention. In my opinion the right of a widow to hold possession of the property as owner thereof till her death or re-marriage amounts to a 'right, title or interest' in that land within the meaning of Section 17 of the Registration Act. Therefore, an agreement by which a widow relinquishes her interest in such property in favour of her husband's collaterals is compulsorily registrable, and, if unregistered, it would be inadmissible in evidence. Thus the alleged deed of surrender or release, even if held to have been executed by Smt. Bachchi, could not be read and relied upon in evidence being inadmissible for want of registration nor it would operate to extinguish right, title or interest of Smt. Bachchi in the land in dispute which had later on devolved upon her on the death of her father-in-law. There is yet another ground to reject the claim of the petitioners, which is based on the alleged deed of relinquishment executed by opposite party No. 4, by which she is said to have relinquished her right, title and interest in the land in question in their favour, who are collaterals of her husband. It is not disputed that in the year 1949, when the said deed of relinquishment is said to have been executed by opposite party No. 4, her father-in-law was alive. She had, therefore at that time merely chance of succession and thus it being an inchoate right could not be surrendered or assigned in favour of the petitioners. It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he or she hopes to succeed as heir at law, or next-of-kin of such living person. During the life time of such person no one can have more than a spec succession an expectation or hope of succeeding to the property. Such an interest is not assignable at law. Only present rights can be dealt with as property and not inchoate future rights, such as spec successions. A deed of relinquishment in favour of next reversioner in respect of such a non- existent right is invalid and not binding on her. It would neither at law nor in equity operate according to its tenor. Such an agreement regarding relinquishment of her rights in the property in question in favour of the petitioners would be altogether void under Section 6 (a) of the Transfer of Property Act and it would not estop the opposite party No. 4 Smt. Bachchi from claiming her share in the property in question. Thus, in my opinion, the Deputy Director of Consolidation has committed no error of fact, law or jurisdiction in passing the impugned orders. In the result the writ petition fails and is accordingly dismissed. Parties shall, however, bear their own costs. .