RAM DHANI Vs. D.D.C. AND OTHERS

JUDGEMENT

(1.) IN the petition directed against order of Deputy Director of Consolidation, apart from the controversy whether a female in possession on the date of vesting over Sir and Khudkast land, allotted to her in lieu of maintenance in a compromise, acquired bhumidhari rights under Section 18 or Asami under Section 11 of U.P.Z.A. and L.R. Act of 1951 (hereinafter referred to as the Act) the question to be decided is binding effect of decision given by Supreme Court under Article 141 of the Constitution of India irrespective of it being based on omission to notice certain provisions of the Act. The petitioners are transferees from one Smt. Phoola, wife of Sehti who, it has been found, died in state of jointness in the year 1911. A few months thereafter his only brother also died and when in 1931 Smt. Murtana, mother -in -law of Smt. Phoola died, she filed an application for mutation which was compromised on 8 -2 -1932 and it was agreed that although predecessor in interest of opposite -parties who were members of joint family of Sehti shall be the owners but she being a widow of the family, her maintenance was their responsibility, therefore, it was necessary to get her name mutated in revenue records so that in case of default she could enter into possession and maintain herself. But she was not given any right of transfer and it was provided that after her death the property shall revert to opposite parties. Unfortunately for opposite parties Smt. Phoola survived till after the date of vesting and on 6 -4 -1956 she sold the disputed plots to petitioners giving rise to series of litigations which, however, did not finalise either because suits were withdrawn or proceedings were started due to enforcement of consolidation. After notification under Section 4 of the U.P. Consolidation of Holdings Act was issued, opposite parties filed objection under Section 9A against basic year entry in favour of petitioner which was rejected by the consolidation officer and the order was upheld in appeal. In revision the orders were set aside and it was found that after enforcement of Act Smt. Phoola did not become bhumidhar but only Asami under Section 11 of the Act. She, therefore, did not have any transferable right and the sale -deed executed by her in favour of petitioner was contrary to the provisions of law.

(2.) FOR acquisition of Bhumidhari rights under Section 18 of the Act a person had to belong to one of the classes mentioned in it. It does not distinguish between male and female tenure -holders. A female, therefore, holding the land as one of the class of persons mentioned in it would become bhumidhar, whether the female was holding the land in that capacity would depend on the nature of right which she had on the date of vesting. If the female was in possession as limited owner, in lieu of maintenance or as widow, then it shall be seen whether her possession was in capacity of one of the classes mentioned in Section 18 or she had no right or title as a person of that class but was holding land only for the purposes of maintenance or for cultivation. Succession or devolution to a person, mentioned in Section 18, before the date of vesting was governed by personal law. The nature of right therefore, which a female had, shall have to be examined in the light of personal law which applies to her. In Tulsamma v. Sista Reddi : AIR 1977 SC 1944. Mr. Justice Fazal Ali on careful consideration and detailed analysis of various authorities textual and judicial in relation to incidence of a Hindu Widows' right to maintenance, found it to be personal obligation of husband and if the husband had property then the right became an equitable charge and any person who succeeded to the property carried it with the legal obligation to maintain the widow, who, by virtue of her right become a sort of co -owner in the property of her husband though her co -ownership was of subordinate nature. The authority, therefore, is a settler so far the nature of female's right in property held by her in lieu of maintenance is concerned. That the right existed even prior to the Act of 1937 is further clear by following observation in the same decision at page 1957.

(3.) IT was urged by learned counsel for opposite -parties that having regard to the terms of the compromise Smt. Phoola could not be considered to be the owner as right of transfer or heritability the two essential ingredients were missing. Inspiration of this in fact was drawn from a Division Bench of this Court in Basudev v. D.D.C., 1970 RD 75, but these observations were made in different context. On behalf of female in that case it was urged that as she was intermediary she became bhumidhar. The Bench did not agree as while considering the meaning of intermediary and Proprietor it was held that a person could not be the owner unless the requisites of transfer and inheritance were there. Here rights depend not on whether Smt. Phoola was owner but whether she could be considered to be a Sir or Khudkast holder on the date of vesting. It has been seen above that under Hindu Law a widow or limited owner was always deemed to be the owner in her life time, may be of subordinate type because she had no right to transfer and the property after her death did not devolve on her heirs but on the heirs of last male tenant. This authority, therefore, cannot be of any help.