CHHIDDOO SINGH Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THIS writ petition is directed against the orders dated 1-6-1970 and 21-9-1971 passed by the Settlement Officer, Consolidation and the Deputy Director of Consolidation respectively. The points which have arisen for decision are : the nature of the legal rights which vested in Smt. Kesar Kunwar, who was her legal heir after her death and on whom these rights subsequently devolved. '

(2.) THE dispute relates to chak No. 38 recorded in the basic year in the name of Smt. Kesar Kunwar, widow of Sumer Singh of village Harsainpur in pedigree for the purposes of appreciat -the district of Moradabad. THE relevanting the controversy is noted below : Khamani Singh Bhagwant Singh Khushal Singh Baldeo Singh Harihar Phool Tika Badam Sumer Chhiddoo Gopal Chamman Singh Singh Singh Singh Singh Singh ? Singh Singh Smt. Kesar Kunwar was in the first instance married to Badam Singh and Smt. Moorti Devi, respondent No. 4, is the daughter of Smt. Kesar Kunwar by her union with Badam Singh. It is admitted that Badam Singh died when the Agra Tenancy Act, 1926 was in force and Smt. Kesar Kunwar remarried his real brother Sumer Singh also when the Agra Tenancy Act was in force. Sumer Singh too died during the pendency of the same Act and Smt. Kesar Kunwar died on 17-7-1968 when the village had come under consolidation operations. On the death of Smt. Kesar Kunwar objections were filed under section 12 of the U. P. Consolidation of Holdings Act by the petitioner Chhiddoo Singh on the ground that Smt. Kesar Kunwar was recorded over chak No. 38 and she was dead and he, being her legal heir, was entitled to have his name recorded over those plots. Another objection was filed by Smt. Moorti Devi claiming heirship of Smt. Kesar Kunwar.

(3.) THE crucial point of controversy in the case appears to have been as to whether Smt. Kesar Kunwar was a limited owner of this chak and inherited the property as the widow of her first husband Badam Singh so as to attract the provisions of section 172 of the U. P. Zamindari Abolition & Land Reforms Act or whether Smt. Kesar Kunwar had acquired independent rights as a tenure holder so that on her death the succession would be governed by section 174 of the U. P. Zamindari Abolition & Land Reforms Act. It is the decision on this cardinal point on which the findings on other subsidiary points raised in the case would eventually depend. I find that in the order of the Settlement Officer, Consolidation it has been mentioned that chak No. 38 was recorded in the basic year in the name of Smt. Kesar Kunwar as the widow of Badam Singh. THE Settlement Officer, Consolidation has also adverted to other documentary evidence in the case such as the statement made by Smt. Kesar Kunwar in Suit No. 15 of 1953 in the court of Munsif, Moradabad where she had said that she was the widow of Sumer Singh and that Sumer Singh left 50 Bighas of land to be inherited by her after his death. THE Settlement Officer, Consolidation adds that Smt. Kesar Kunwar was the wife of Badam Singh but she remarried Sumer Singh, brother of Badam Singh, after his death when the Agra Tenancy Act, 1926 was in force. THE Deputy Director of Consolidation specifically observed in his order that it was admitted by the parties that Smt. Kesar Kunwar was the widow of Badam Singh and inherited the property from him after his death and thereafter she remarried his real brother, Sumer Singh. From these observations contained in the orders passed by the Consolidation authorities it can be safely inferred that Smt. Kesar Kunwar expressly claimed her rights as the widow of Badam Singh in the first instance. In my opinion the initial statement of the widow regarding the source of her rights was the most crucial point in the case and in the absence of anything to the contrary all her future legal rights would take shape only from the intrinsic right which devolved upon her on the death of her husband. It is also an admitted fact that Badam Singh had died when Agra Tenancy Act was in force and in fact Sumer Singh also died during the same period. THErefore, on Badam Singh's death Smt. Kesar Kunwar inherited the land as his heir and acquired a limited interest therein as the succession would be governed by section 24 of the Agra Tenancy Act, 1926 according to which the property devolved on the death of an occupancy tenant in the absence of a male lineal descendant upon his widow "till her death or remarriage" Consequently when she remarried Sumer Singh, brother of Badam Singh, then her rights extinguished and Sumer Singh became the heir of his brother. Succession opened again when Sumer Singh died and on his death Smt. Kesar Kunwar became the occupancy tenant of the said land as a limited heir under the Hindu law.