SUMITRA DECD Vs. GAYA PRASAD

JUDGEMENT

(1.) This writ petition is directed against the order of Consolidation Officer dated 10.11.1975, the order of the Assistant Settlement Officer Consolidation dated 13.8.1976 and the order of the Deputy Director of Consolidation, Mirzapur, dated 12.5.1978.

(2.) The dispute relates to Khata No. 50. 64, 19 and 17 of village Raipur Pokhta. Tappa Chaurasi. Pargana Kantit. Tahsil Sadar, District Mlrzapur. During the consolidation proceedings in the basic year khatauni the name of Smt. Sumitra, petitioner No. 1. was recorded over Khata Nos. 50 and 19 exclusively, while in Khata Nos. 64 and 17 she was recorded with the respondents. The contesting respondents filed objection that Smt. Sumitra had no right over the land in dispute as her husband died before the year 1937. The land in dispute was Sir and Khudkasht and she will not have any right over the land in dispute. The petitioner denied this allegation. She claimed that her husband died after the year, 1937. The consolidation authorities have recorded concurrent finding that the husband of Smt. Sumitra died after the year 1937 and the land in dispute was Sir and Khudkasht land. She will not inherit any share of her husband. The gift deed executed by her in favour of Shitla Prasad, petitioner No. 2, on 3.1.1989 shall be treated as a void document in respect of the property owned by her husband.

(3.) The core question is whether Smt. Sumitra will inherit the right of her husband who had expired before the year 1937. It is not disputed that the land in dispute was Sir and Khudkasht land. At the time of death of the husband of Smt. Sumitra, the provisions of Agra Tenancy Act, 1926 were applicable. Section 24 of the Act provides for succession to a male tenant. In the order of succession, male lineal descendant in the male line of descent, has a preferential right over the widow. This section is. however, not applicable in respect of Sir and Khudkasht land. Section 5 of Agra Tenancy Act provides that on the death of a Sir-holder, his Sir-right shall devolve on the person who succeeds to his proprietary interest in the Sir. The succession to proprietary interest is governed by personal law.