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RAM SEWAK SAROJ versus IIND.ADDL. D.J. ALLD. &

High Court of Judicature at Allahabad

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Ram Sewak Saroj v. Iind.Addl. D.J. Alld. & - WRIT - C No. 4580 of 1985 [2006] RD-AH 3254 (13 February 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.31

CIVIL MISC. WRIT PETITION NO.4580 OF 1985

Ram Sewak Saroj, s/o Ram Kuber, R/0 119-Swaraj          ..Petitioner

Nagar, Allahabad City.

Versus

IInd Additional District Judge, Allahabad and others.   ....Respondents

-------------------  

Hon'ble Bharati Sapru, J.

The present petition has been filed against the judgment passed on 3.1.1985 by the 2nd Additional District Judge, Allahabad in Civil Appeal No.123 of 1982 by which the learned Additional District Judge has remanded the matter to be decided on merits and has directed the Court below to consider whether the persons who sought substitution had any legal right or not.?  

The facts of the case are that one Smt. Janakia who claimed to have occupancy tenancy rights died on 25.5.1982.  Two set of persons claimed to be her heirs.  One was Shri Ram Sewak Saroj who claimed to be her heir under a Will made by Smt. Janakia on 26.8.82.  The other set of persons who claimed to be made legal representatives and heirs were Shri Sangam Lal and others who claimed that  their rights as legal heirs and representatives devolved on them under the provisions of Section 35 of the U.P. Tenancy Act, 1939.  The appellate court remitted the objection of the defendant to the Lower Court for a finding to be reached on the point of heirship.  The Trial Court's finding is that the claim of Ram Sewak, the present petitioner, who claimed heirship to the Will was correct and he alone should be substituted in the place of Smt. Janakia.  

I have heard learned counsel for the parties at length and also have gone through the record of the case. .  Learned counsels for the parties have also submitted written submissions.  

Shri Radhey Shyam, learned counsel for the petitioner has claimed that there is a finding in his favour that there was a registered Will in favour of  the petitioner and it is he who should be substituted in place of Smt. Janakia.  He has argued that registered Will could not be treated to be a  transfer as defined under Section 5 of the Transfer of Property Act.  He has argued that there is a distinction between the transfer as permitted under the Transfer of Property Act and Will, which is defined under Section 8 of the Transfer of Property Act.  A Will has also been defined under the Indian Succession Act.  Whereas the transfer of property operates from the date of transfer itself, transfer under a Will  will only come into being after the death of the testator.  His argument is that there is no transfer involved in the execution of a Will but simply there is devolution of  interests of the person.  He has relied upon a decision of the Allahabad High Court as rendered in the case of  Bindeshwari Vs. Board of Revenue as reported in 2002 (1) A.W.C. 498.  In this case it is held  while interpreting Section 34 of the U.P. Land Revenue Act that the Will is a mode of succession and not a transfer of the succession under Section 34 and, therefore, mutation on the basis of Will will be fully maintainable.  

On the other hand, Shri B.B. Paul, learned counsel for the respondent has argued that on facts it is clear that Smt. Janakia was a occupancy tenant of the land in dispute no.101 within the area of 1 ½ bigha situated in village Chandpur Salori , District Allahabad. The property in question was the land of the predecessor of Smt. Janakia in Original Suit No.44 of 1981 Sangam Lal  Vs. Smt. Janakia filed by Sangam Lal for permanent injunction.

The suit of Sangam Lal was dismissed on 9.2.82 and an appeal was filed being Appeal No. 123 of 1982.  During the pendency of the appeal Smt. Janakia died and her heirs and successors under Section 35 of the U.P. Tenancy Act 1939, that is the natural heir belonging to her family tree came into the picture as necessary respondents who sought to get substituted with the heirs of Smt. Janakia under Section 35 of the Occupancy Tenancy Act, 1939.  It is their application for substitution as stated earlier, which has been decided.  The petitioner went on claiming  through their Will made by Smt. Janakia and the respondents on the other hand, claimed to be the natural heirs as prescribed under Section 35 of the Act of 1939.  

Learned counsel for the respondents has argued that Occupancy Tenancy is non-transferable and this is the law, which has been laid down for many decades.  He has argued that a Will amounts to a transfer and under the Act of 1939, the Occupancy Tenants Act cannot regulate succession of his tenancy by making a Will.  He has relied upon a decision of the Hon'ble High Court, which has held the sway  for decades.  

He has relied on the decision of Kallu and others versus Ganga Ram as reported in  1925 Revenue Decisions (IX) 394 where this Court has held that the land of succession in case of the death of the occupancy tenant has been laid down under Section 35 of the Act.  The Agra Tenancy Act provisions are para-material to the provisions of U.P. Tenancy Act, 1939.  He has also relied on the case of  Nageshwar Murao and another Vs. Bhikhi Murao and others as reported in 1929 RD (13) 188 where also it has been held that occupancy tenancy cannot regulate succession of his tenancy by making a Will.  

Shri B.B. Paul has also relied on the decision of a Division Bench

of this Court in Kaniz Zohra and others Vs. Dy. Director of Consolidation, Lucknow and others  as reported in 1968 ALJ 11 wherein this Hon'ble Court has held that " Will devising Sir rights is invalid and ineffective"  This case has also been examined under the provisions of Chapter 3 of the Agra Tenancy Act and under Chapter 4 of the U.P. Tenancy Act, 1939 which are virtually analogous to each other.

"Agra Tenancy Act, 1926  

35. Extinction of tenancies (1) The interest of a tenant shall be extinguished -

(a) when he dies leaving no heir entitled to inherit it;

(b) in land from which he has been ejected in

     execution of a decree or order of a court unless

such decree or order is subsequently reversed  in appeal  or otherwise;

(c) by surrender under Section 103 or   abandonment under section 107 ;

(d) in land which has been acquired by (the Government) for a public purpose, or a work of

public utility;

(e) by merger, as provided in Sec. 36;

(f) where the tenant has been deprived of possession and his right to recover possession is

barred by limitation.

2. Subject to the provisions of Sec.16 of the Land Acquisition Act, 1894, the extinction of the interest of a tenant having a transferable interest shall not of itself affect the rights of any transferee from such tenant under a valid transfer but after the transfer all covenants binding and enforceable as between the landlord and the tenant shall be binding and enforceable as between the landlord and the transferee.      

U.P.Tenancy Act, 1939

36. (1) When a female tenant, other than a tenant mentioned in section 34, who either before or after the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as a step-mother, as a father's mother, or as a daughter dies or abandons such holding, or surrenders such holding or a part of such holding, or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, notwithstanding anything in section 45, devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant, other than a tenant who inherited as a father's father under the provisions of that section.

(2)     When a tenant, who inherits an interest in a holding as a father's father in accordance with the provisions of sub section (1) or of section 35, abandons such holdings or surrenders such holding or a part of such holding or dies, such holding or such part shall, notwithstanding anything  in section 45, devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with the provisions of section 35.

U.P.Z.A. & L.R. Act, 1950  

189. Extinction of interest of a bhumidhar with transferable rights - The interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished -

(a) When he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act.

((aa)When the holding or part thereof has been    

      transferred or let out in contravention of the

  provisions of this Act.) ;

(b) When the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land; or

(c) When he has been deprived of possession and his rights to recover possession is barred by limitation.  

190. Extinction of the interest of a {bhumidhar with non-transferable rights} - (1) Subject to the provisions of (Section 172), the interest of a {bhumidar with non-transferable rights} in a holding or any part thereof shall be extinguished -

(a) when he dies having no heir entitled to inherit in accordance with the provisions of this Act;

(b) when the holding has been declared as abandoned in accordance with the provisions of Section 186;

(c) When he surrenders his holding or part thereof,

{(cc) when the holding or part thereof has been      

      transferred, let out or used in contravention of

  the provisions of this Act};

(d) when the land comprised in the holding has  been acquired under any law for the time  in force relating to the acquisition of land;

(e) when the has been ejected in accordance with the provisions of this Act; or

(f) when he has been deprived of possession and his right to recover possession is barred by limitation.

2. The provisions of sub-section (1) shall apply mutatis mutandis to assamis also."

Shri Paul, therefore, concludes that a Will is a transfer  under both the Agra Tenancy Act and U.P. Tenancy Act and the occupancy tenant cannot regulate succession by making a Will.  

The case as cited by Radhey Shyam as reported in 2002 (1) A.W.C. 498 has no application in the facts and circumstances of the present case.

Having heard learned counsel for the parties and having perused

the record as well as the judgment of the Court below, I am of the view that the appellate court has committed no error of law in coming to the conclusion that Smt.  Janakia was  merely a tenant occupancy and   have no right to dispose of the property by Will or to change the lieu of succession or devolution by making a Will.  The devolution could only have been made by way as prescribed under the  provisions of Section 36 of the U.P. Occupancy Tenancy Act, 1939.  I am of the opinion that the Appellate Court has rightly come to the conclusion that the applications for substitution were rightly allowed as the applicants were the legal representatives and inter meddlers with the estate of the deceased Smt. Janakia and  has rightly confined their status to that of legal representatives and inter meddlers. I am firmly of the opinion that the learned Court below has rightly remanded the matter to be heard on merits.  

The Court below has correctly allowed the application for substitution of legal heirs.  I see no reason to interfere with the same under Article 226 of the Constitution of India.  The judgment-dated 3.1.1985 is hereby affirmed. As the matter is a very old one, I also direct that the matter shall be re-opened immediately upon production of a certified copy of this order and proceedings in the Court below shall be concluded expeditiously.  

The writ petition is dismissed.  There will be no order as to costs.

Dated : 13.2.06

L.F.

 


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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