PALAK DHARI Vs. DEPUTY DIRECTOR OF CONSOLIDATION VARANASI

JUDGEMENT

(1.) THE question of law argued before me in this writ petition was whether a female Bhumidhar, who had inherited a holding from her husband, was competent to bequeath it by a will. The Deputy Director of Consolidation upheld the view of the Settlement Officer (Consolidation) that in view of Section 14 of the Hindu Succession Act the female Bhumidhar became a full owner and was entitled to bequeath the agricultural holding by will. On that basis he repelled the claim of the petitioners.

(2.) IN Ramji Dixit v. Bhirgunath, (1968 All LJ 844) : (AIR 1968 SC 1058) the Supreme Court has upheld the view of this Court that a female Bhumidhar governed by sub-section (2) of S. 169 is incompetent to bequeath a Bhumidhari holding by will. Sub-section (2) of S. 169 aforesaid applies, inter alia, to a widow. In the present case Smt. Rameshwari Devi had inherited the holding from her husband and had executed the will on 10th November, 1963 before her death on 18th December, 1963. In view of the decision in Ramji Dixit's case it is clear that she was incompetent to bequeath the holding by will and in this respect the decision of the consolidation authorities cannot be upheld.

(3.) SECTION 4 (2) speaks of any law providing for the devolution of tenancy rights. In Kaniz Zohra v. The Deputy Director of Consolidation, (1968 RD 9 (All)) a Division Bench of this Court held that a will regulates testate succession, and succession is a mode of devolution. In view of this decision it is apparent that testate succession being a mode of devolution is within the purview of Section 4 (2) of the Hindu Succession Act. The result is that nothing contained in the Hindu Succession Act shall be deemed to affect the provisions of the U. P. Zamindari Abolition and Land Reforms Act which deal with the devolution of tenancy rights, namely, which deal with intestate as well as testate succession to Bhumidhari holdings. Section 169 (2) of the Zamindari Abolition Act deals with testate succession. It makes a female Bhumidhar mentioned in sub-section (2) of S. 169 incompetent to bequeath a holding by will. None of the provisions of the Hindu Succession Act can affect or override this provision. In view of Section 4 (2) of the Hindu Succession Act, which is a provision which overrides all other provisions of the Hindu Succession Act, neither Section 14 nor Section 30 of the Succession Act can be relied upon by the respondents to sustain the will executed by Smt. Rameshwari Devi. She was incompetent to execute the will. The will executed by her was totally ineffective to pass any interest in the holding in dispute.