JATA SHANKER Vs. PREM SHANKER AND OTHERS

JUDGEMENT

(1.) THIS petition arises out of consolidation proceedings.

(2.) THE holding now in dispute was the sir or khudkasht of one Hari Nandan. It devolved on his two sons, Mahanand and Ramanand, Ramanand died in 1942. Mahanand, the other brother, died in 1956. Before his death, Mahanand executed a will in 1955 bequeathing his property to two of his grandsons, Jata Shankar (Petitioner) and Adya Shankar (Respondent No. 3). During consolidation operations, Prem Shanker another grandson of Aahanand through Pudh Nath raised an objection and challenged the validity, of the will. The Deputy Director has upheld the claim of Prem Shanker and rejected the will on the ground that Mahanand, being a member of the Joint Hindu family, became a joint bhumidhar and as such he could not bequeath any part of the joint family property. For this view, he placed reliance, upon a decision of this Court in Mahabir v. Suba Lal, 1965 AWR 419 :, 1965 UPRC 189.

(3.) IN the present petition, the view of the Deputy, Director that a bhumidhar cannot will his property has been challenged. The point is supported by a Division Bench decision of this Court in Mahendra Singh v. Attar Singh, 1967 AWR 73 :, 1967 UPRC 26 (2), where it was held that the principles of Hindu law relating to coparcenary property were not applicable to humidhaifi rights which were fresh rights and were to be governed, by the provisions of the Zamindari Abolition Act. For this proposition, the Division Bench relied upon a Full Bench decision, of this Court in Ramji Dixit v. Bhrigunath, 1964 AWR 75 :, 1964 UPRC 44. The Bench also observed that a bhumidhar can make a will of his holding or any hart thereof, as provided by Section 169 of fire Zamindari Abolition Act. In view of this decision, the earlier decision relied upon by the Deputy Director cannot hold the field. It will, therefore, have to be held that Mahanand as a bhumidhar was competent to execute a will of his interest in the bhumidhari holding.