SARBATI DEVI Vs. STATE OF PUNJAB & OTHERS

JUDGEMENT

(1.) THE facts giving rise to this writ petition under Articles 226 and 227 of the Constitution by Sarbati Devi are not open to any dispute. The third respondent Mohan Lal was an owner of land measuring 233.87 ordinary acres in village Goriawala of Sirsa tehsil. In the computation of the surplus area made by the Collector, Surplus Area, on 26th December, 1961, some land which had been gifted by Mohan Lal to his son Bhim Sain before the enactment of the Punjab Security of Land Tenures Act, 1953, on 15th of April, 1953, had been taken into reckoning. Obviously this could not by done.

(2.) IT is true that Bhim Sain, to whom some land was gifted in pursuance of the Mutation No. 296 of 12th of April, 1952, died on 29th of July, 1952. Mohan Lal under a misapprehension of law considering that the land had reverted back to him on the death of the donee son Bhim Sain, re -gifted the land in favour of his minor son Raghbir Singh on 22nd of December, 1953. This gift having been made after the enactment of the Punjab Security of Land Tenures Act has been ignored in the computation of the surplus area. Now, the legal position with regard to the succession of the Bhim Sen's property cannot be said to be in dispute. Under article 43 of Mulla's Hindu Law (13th edition) page 104 the order of succession is set out. The first three heirs in order of preference are son, grandson and great -grandson. Then comes the widow at No. 4. The daughter is No. 5 and daughter's son No. 6. Bhim Sen died without leaving any son, grandson or great -grandson. He was an unmarried man and did not leave behind any widow or daughter. The next in order of succession is the mother and the father comes after her. Thus, the property of Bhim Sen, which had been gifted to him by his father, came to devolve on the petitioner Sarbati as his mother and not Mohan Lal as the father. Mohan Lal, in other, words, had no right to make a farther gift of the land in favour of his minor son Raghbir Singh.

(3.) IT is submitted by Mr. Shakar, the learned counsel for the State, that Sarbati herself took no steps to get herself impleaded in surplus area proceedings. Now, it was for the State and its functionaries to act in accordance with the law of the land. If Sarbati was the person entitled to succeed to the property left by her son, Mohan Lal could not be treated as an heir, and consequently, the land mutated in his favour after the death of Bhim Sain is clearly illegal.