PREM CHAND Vs. GRAM SAMAJ, ETC

JUDGEMENT

(1.) These are two connected references made by the Additional Commissioner. Gorakhpur Division, Gorakhpur, under his order dated March 8, 1963 in a mutation case.

(2.) On the death of Smt. Kastura, her co-tenant Prem Chand and others claimed mutation of their names by succession through survivorship. Vide its order dated April 23, 1962, the trial court rejected the application and ordered, that the property of Smt. Kastura deceased would vest in the Gaon Sabha. The appeal of Prem Chand and others against the trial court's order was dismissed by the Assistant Collector (J.), Azamgrah on Sept. 17, 1962. Prem Chand has now come up in revision and the Additional Commissioner has recommended that the same may be rejected. Prem Chand has filed an objection against the Additional Commissioner's recommendation.

(3.) The learned counsel for the revisionist is present and I have heard him and perused the records of the case. Admittedly, Smt. Kastura died heir-less and after the U.P.Z.A. and L.R. Act came into force. It is also not disputed that Prem Chand and others are the recorded co-tenants of Smt. Kastura deceased. While rejecting the claim of Prem Chand and others co-tenants, the courts below relied upon the ruling reported in Kalawati v. Nathu, 1961 R.D. 3 . I have gone through this ruling, and I find that the facts of the case governed by this ruling were different from the facts of the present case. The facts of the case of the ruling were that Smt. Kalawati and Smt. Durga were two co-widows and the former had remarried with the result that she forfeited her rights and the question arose whether she had acquired any rights afresh by remaining in possession. Accordingly, the Board framed an issue as to whether Mst. Kalawati, after remarriage, matured her right against the Gaon Samaj, and remanded the case to the trial court for decision afresh, after giving a finding on the issue framed by the Board. The facts of the present case are quite different from these facts. Here, Smt. Kastura was admittedly a co-tenure-holder, and not the sole tenant, of the land in question and she died without leaving any heir. The above mentioned ruling has therefore no application to the present case. At the same time, the courts below have completely erred in holding the view that on the death of one of the co-tenure-holders, his/or share would pass to the Gaon Sabha and not to the remaining co-tenure-holders. The provisions of Sec. 175 of the U.P.Z.A. and L.R. Act are quite clear and are not subject to any interpretation This Sec. say that in the case of a co-widow or a co-tenure-holder, who dies leaving no heir entitled to succeed under the provisions of the Act, the interest in such holding shall pass by survivorship. Since Prem Chand and others are admittedly the recorded tenure-holders of the land in question, the share of Smt. Kastura deceased would pass by survivorship to Prem Chand and others because Mst. Kastura has died without leaving and heir entitled to succeed under the provisions of U.P.Z.A. and L.R. Act. Therefore, Prem Chand and others co-tenure-holders will be entitled to mutation in place of the name of Smt. Kastura deceased. Accordingly, I would allow this revision petition and vacate the orders of the Addl. Collector (J.) dated Sept. 17, 1962 and of the trial court dated March 29, 1962, and order that the name of Mst. Kastura be expunged from the holding in question and the names of Prem Chand and others, recorded co-tenure-holders, will continue in respect of the entire holding.