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YASHOWARDHAN TRIPATHI versus THE D.I.O.S VARANASI

High Court of Judicature at Allahabad

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Yashowardhan Tripathi v. The D.I.O.S Varanasi - SPECIAL APPEAL No. 1142 of 1999 [2005] RD-AH 2381 (5 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

1. SECOND APPEAL NO. 1141 OF 1999

Raghuraj Singh.......................................................Appellant

Versus

Mst. Ram Dei and others..................................Respondent

And

2. SECOND APPEAL NO. 1142 OF 1999

Raghuraj Singh .........................................................Appellant

Versus

Charan Das and others..................................................Respondents.

Hon. S.N.Srivastava, J.

The above two second appeals have been preferred by the appellants- one bearing Second Appeal No. 1141 of 1999 has been preferred impugning the judgment and decree dated 30.8.1999 passed in Civil Appeal No. 69 of 1993 arising out of Suit No. 182 of 1989 while the other second appeal bearing No.1142 of 1999 focuses challenge on judgment and decree dated 30.8.1999 rendered in Civil Appeal No. 16 of 1993 arising out of suit No.147 of 1989. Since dispute in both the appeals relate to one and the same property both the appeals were interknit together for hearing and disposal.

The facts forming background to the above appeals may be short-listed. One Karan Singh, the grand-father of the plaintiff appellant who was an affluent Zamindar of the Area, had tied nuptial knots with two women-one Smt. Ram Pyari and the other, Mst. Ram Dei and during his lifetime, he had executed a gift deed dated 8.2.1947 bequeathing certain property to persons including Mst. Ram Dei, Smt. Ram Pyari, Raghubir and Raghuraj Singh. The dispute arose consequent upon execution of sale deed by Mst. Ram Dei on 7.5.1988 pertaining to Khata no. 214 and Khasra no. 55 admeasuring 4.86 acres in favour of defendants 2 to 4. The sale deed, it would appear, was executed on a consideration of Rs. 92000/-. The other sale deed was executed on 7.12.1988 against property comprising in Khasra No.118 of Khata No. 214 admeasuring 6.69 acres in favour of defendants 5 to 7. The plaintiff instituted suit aforestated seeking the relief of declaration that sale deeds executed by Ram Dei dated 7.12.1988 firstly in favour of defendants 2 to 4 and secondly in favour of 5 to 7 were null and void. According to the plaint allegations, Mst. Ram Dei was given 1/3rd share ostensibly to enable her to maintain herself; that after the gift-deed, Zamindari Abolition Act came into force; that Mst. Ram Dei came to be recorded in the revenue record alongwith other members of the family in whose favour gift deed had been executed and that reaping benefit of her name finding place in the revenue record, it is further alleged, she unjustifiably executed the sale deed though according to further allegation in the plaint, her rights and interest in the property were intended to operate only to the extent it related to her maintenance and not beyond it. It is further alleged that she cannot acquire any Bhumidhari rights and that the sale deed executed by her was a null and void.

The defendants resisted the case and confuted the allegations contending that Mst. Ram Dei was in possession over the property on the date of vesting alongwith other persons and had acquired rights under section 18 (1) of the U.P.Z.A. & L.R.Act as Bhumidhar; that she was recorded as absolute owner and she rightly executed sale deed in favour of transferees. On the other hand, defendants-transferees also claimed benefit of Section 43 of the Transfer of Property Act.

The trial court, in the ultimate analysis converged to the view that in view of law laid down by the Apex, Mst. Ram Dei defendant no.1 would acquire Bhumidhari rights under section 18 (1) of the U.P.Z.A. & L.R.Act. In consequence, the suit for cancellation of sale deed dated 7.5.1988 and 7.12.1988 was dismissed but it was decreed in so far it related to the relief of a permanent injunction against defendants 2 to 7 and a permanent injunction was granted to the effect that the plaintiff would not be ejected from the land in dispute otherwise than in accordance with law. Dissatisfied with the judgment and decree, two appeals were preferred as aforestated and the appellate court allowed the appeal of defendant Charan Singh and set aside the decree of the trial court. The decree of the trial court in so far as it pertained to cancellation of sale deed was upheld and maintained vide judgment and decree dated 30.8.1999.

Sri B.D.Mandhyan, the learned counsel for the appellant canvassed that in view of terms and conditions as embodied in the gift-deed executed by Karan Singh dated 6.2.1947, the interest of Mst. Ram Dei in the property was confined to her lifetime and the property was bequeathed to her for her maintenance and by this reckoning, she could only acquire Asami rights as prescribed under section 11 of the U.P.Z.A. & L.R.Act. The learned counsel further contended that the decree passed by the courts below dismissing the suit for cancellation of sale deed is liable to be set aside and the suit is liable to be decreed in view of the fact that Mst. Ram Dei cannot acquire any right under section 18 (1) of the U.P.Z.A. & L.R.Act as Bhumidhar. To enforce his contention, the learned placed credence on number of decisions. The decisions relied upon by the learned counsel for the appellant are Gulabrao Balwantrao Shinde v. Chhabubai Balwantrao Shinde , AIR 2003 SC 160, Smt. Himi v. Smt.Hira Devi AIR 1997 SC 83, Bhura and others v. Kashiram AIR 1994 SC 1202,  Kothi Satyanarayana v. Galla Sithayya andothers AIR 1987 SC 353, G.Appaswami Chettiar and another v. R. Sarangapani Chettiar and others AIR 1978SC 1051, Smt. Karmi v. Amru and others AIR 1971 SC 745, Ram Jag Misir and others v. The Director of Consolidation U.P. and others AIR 1975 Allahabad 151, Prema Devi v. Joint Director, Consolidation, 1970 Allahabad 238 (V 57 C 39), Smt. Jaswant Kaur v. Harpal Singh 1977 Punjab & Haryana 341 (F.B.), K.Thomman and others v. Meenakshi and others AIR 1970 Kerala 284, Chhiddoo Singh v. Dy. Director of Consolidation (All. H.C.) A.L.R. 1976 (2), 664, and Ram Chandra Dubey v. Dy. Director of Consolidation, Deoria R.D. 1978 p. 1.    

Sri R.N.Bhalla, learned counsel representing the Opp. Parties contended that on the date of vesting, Mst. Ram Dei was recorded in the revenue record and was in possession over the property as Khudkast alongwith other co-tenure holders and as such she had validly acquired the right of Bhumidhari under section 18 of the U.P.Z.A. & L.R.Act. The learned counsel also relied upon decision of the Apex Court in Ramji Dixit v. Bhrigunath, 1964 A.L.J p 844 and also Ram Avtar v. Ram Dhani (1997 (15) LCD-22). Relying on a decision in State of U.P. V. Chandi Prasad Bhardwaj, 1996 A.L.R. (2) 204=1997 AIR (Alld) p. 17, the learned counsel argued that on the date of vesting as a sequel to enforcement of the U.P.Z.A. & L.R.Act, Mst. Ram Dei acquired the status of a Bhumidhar and she was accordingly recorded as such in the revenue record. It was further argued that she was rightly adjudged as absolute owner in consolidation proceeding. He further quipped that both the courts below rightly held that she had acquired Bhumidhari rights and was absolute owner after the date of vesting and she rightly executed the sale deed and further the findings recorded by the courts below are findings of facts which were rightly arrived at after appraisal of evidence in correct perspective and the same cannot be interfered with.

I have carefully considered the arguments and materials on record.

Before coming to grips with the controversy involved, it would be appropriate to refer to section 11 of the U.P.Z.A. & L.R. Act and section 18 of the U.P.Z.A. & L.R.Act. Section 11 of the U.P.Z.A. & L.R. Act refers to section 10 of the U.P.Z.A. & L.R. Act which envisages that where the Sir and Khudkast land was allotted by Sir or Khudkast holder to a person in lieu of maintenance allowance, such person shall be deemed to be asami thereof entitled to hold the land for so long as the right of maintenance subsists as an asami. Section 11 of the Act being germane to the controversy is quoted below.

"11. Sir or khudkasht allotted in lieu of maintenance allowance.-Notwithstanding anything contained in Section 10, where sir or khudkasht has been allotted by the sir or khudkasht holder thereof to a person in lieu of maintenance allowance, such person shall be deemed to be the asami thereof entitled to hold the land for so long as the right of maintenance allowance subsists."

Section 18 (1) of the Act envisages that in case section 18 (1) (a) is taken into consideration, the words inserted are "subject to the provisions of Sections 10, 15, 16 and 17, all ands (a) in possession of or held or deemed to beheld by an intermediary as sir, Khudkasht or an intermediary's grove, on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or grove holder as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof. Section 18 of the Act is also excerpted below.

"18. Settlement of certain lands with intermediaries or cultivators as Bhumidhar- (1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands-

(a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove,

(b) held as a grove by, or in the personal cultivation of, a permanent lessee in Avadh,

(c) held by a fixed rate tenant or a rent free grantee as such, or

(d) held as such by-

(i) an occupancy tenant,

(ii) a hereditary tenant

(iii) a tenant on patta dawami or istamrari referred to in section 17,

(e) held by a grove holder,

on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary[lessee, tenant, grantee or grove holder] as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a Bhumidhar thereof;

(2) Every person belonging to the class mentioned in [Section 3 or sub-section (2) of Section 3-A) of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949, U.P. Act of 1949, who has been granted the declaration referred to in Section 6 of the said Act in respect of any holding or share thereof shall, unless the declaration is subsequently set aside, be deemed to be the Bhumidhar of the holding or the share in respect of which the declaration has been made and continues in force.

(3) Notwithstanding anything contained in the United Pr9ovinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 any declaration granted under Section 6 of the said Act in favour of a tenant to whom sub-section  (2) of Section 10 applies, shall be and is hereby cancelled and the amount deposited by him under section 3 or 6 of the said Act shall, after deducting the amount which might have been paid or be payable by the State Government to his landholder under Sections 7 and 8 of the said Act, be refunded to the person entitled in such manner as may be prescribed."

The plaintiff in the instant case, has filed paper no. 8 C which is a certified copy of the gift deed dated 6.2.1947 and it is explicit from its perusal that smitten by old age, Karan Singh grand father of the plaintiff executed a gift deed transferring sir, and Khudkasht rights to Smt. Ram Pyari and Mst. Ram Dei and Raghubir Singh son of Karan Singh and Raghuraj Singh son of Saligram and delivered actual possession of the entire property to them as owner studded with rider that Smt. Ram Pyari and Mst Ram Dei would hold possession over the property in lieu of maintenance and would have no right to sell, gift or mortgage the property and after her death the property would devolve on her heirs in accordance with law. It would further appear that 1/3rd share each fell to the lot of all the three set of persons named in the gift deed.

It would be further explicit from the record that on the basis of the gift deed the name of all the heirs were recorded in the revenue records and thereafter on Ist July 1952 U.P.Z.A.& L.R.Act came into force and on the date of enforcement of the Act Mst. Ram Dei was in actual possession and was also recorded as Khudkast holding and as such her name was accordingly recorded alongwith other co-tenure holders as Bhumidhar as contemplated in section 18 (1) of the Act. It would further transpire from the record that during consolidation proceeding, her status as Bhumidhar-received reinforcement and the land was subsequently alienated in favour of defendants II set and defendants III set.

Now the question that looms large before me is whether the land was allotted to Mst. Ram Dei in lieu of maintenance as contemplated in section 11 of the U.P.Z.A. & L.R.Act or it was a transfer by way of gift deed and whether in consequence section 18 of the U.P.Z.A.& L.R.Act would apply?

The learned counsel for the appellant argued that a perusal of gift deed makes it clear that all rights were transferred to the four persons namely, Raghubir Singh, Raghuraj, Smt. Ram Pyari and Smt. Ram Dei hedged with the postulates that Smt. Ram Pyari and Ram Dei would have rights of maintenance only sans any right of alienation of property by way of sale, gift or mortgage etc and therefore, the gift deed would be construed to have been executed for allotment of rights on the land in dispute to certain extent in lieu of maintenance and therefore ,it is covered by section 11 of the Act and necessary corollary thereof is that Ram Pyari and Ram Dei would acquire only asami rights after Abolition of Zamindari Act under section 11 (1) of the Act and they would not acquire any rights under section 18 (1) of the U.P.Z.A. & L.R.Act.

From a punctilious reading of the scheme of U.P.Z.A. & L.R.Act, it is explicit that on coming into force of the U.P.Z.A. & L.R.Act all rights in all the land stood transferred to the State and the State has conferred new rights as enumerated in sections 9,11,18, 19, 20 and 21 of the Act. Admittedly, in the present case, the land in dispute was sir-khudkasht in actual possession of Karan Singh who transferred the rights by way of gift deed in favour of Raghuraj Singh, Raghubir Singh, Ram Pyari and Ram Dei and they were put in possession accordingly. So far as title is concerned, the title was transferred jointly in favour of all the four persons. There is no indicium on record to show that there was any private partition amongst all the four persons. All the four persons were recorded as Sir-khudkasht on the date of vesting. They continued to be recorded as Sir/khudkasht. The right of alienation was restored during the life time of Ram Dei and in case she had not acquired any right under the U.P. Z.A. & L.R.Act, the rights of sir and khudkasht transferred to her could have been with further restriction of alienation by her but in the meantime, U.P.Z.A. & L.R.Act came into force and section 18 of the Act conferred Bhumidhari rights on persons holding sir khudkasht and therefore, the courts below rightly held that Smt. Ram Dei got Bhumidhari rights and consequently, had right to transfer the property as Bhumidhar. There is no manifestation in the gift deed that there was any maintenance allowance fixed by the courts or otherwise under some Settlement of family in favour of Ram Dei. The joint sir or Khudkasht by all the four persons continued upto the date of vesting without any partition. There was no allotment of any plot in favour of Smt. Ram Dei in lieu of maintenance and therefore, rider imposed restricting rights of transfer to Smt. Ram Dei will not impinge upon her rights accorded under the new statute and after enforcement of U.P.Z.A. & L.R.Act she would acquire absolute right under section 18 of the Act. As she has acquired Bhumidhari rights, there was no restriction under the U.P.Z.A. & L.R.Act for any transfer.

The gift-deed is a complete transfer of all rights on the date on which actual deed was executed. There is nothing on record to show that there was any other settlement in the family by which Smt. Ram Dei was allowed some maintenance allowance and any specific land was allocated to her for the same. After transfer of absolute sir/Khudkasht right by way of gift deed in favour of Ram Dei, the rider imposed was for the future but with the enforcement of the U.P.Z.A. & L.R.Act, the embargo put on the rights of transfer of the beneficiary came to end by operation of law.  

A similar controversy arose before the Apex Court wherein husband of a widow died in jointness or widow continued to be member of joint Hindu Family. Under some agreement pertaining to the year 1932, she was given rights of maintenance but her name was mutated on the land and she continued as sir khudkasht holder on the date of vesting. The matter came up before the Apex Court and the Apex Court considered this matter. Similar arguments were raised before the Apex Court. After considering the arguments of the parties, the Apex Court in 1997 (15) DCD p 52 SC, Ram Autar v.Ram Dhani and others held that there is no finding that there was any partition at any stage or later and it shall be deemed that Smt. Phoola continued to be a member of the joint family which was admittedly an intermediary within the meaning of provisions of Land Reforms Act. The Apex Court thus held that Section 18 (1) was fully attracted and on the basis thereof it shall be deemed that the land which she was holding as sir or khudkasht was settled by the State Government with her and she was entitled to retain possession as Bhumidhar thereof. It was further held in paragraph 7 of the judgment that section 11 shall be applicable where the holder of sir or khudkasht lands allots such lands to a person in lieu of maintenance allowance. Though in the case referred to above, Smt. Phoola got land on the basis of compromise entered into in the year 1932 and she was in possession thereof. The facts involved in the case in hand have lot of similarly and as such the ratio flowing from the said decision would be attracted for application to the facts of the present case.

The case laws relied upon by the learned counsel for the petitioner are decisions dealing with section 14 (1) and (2) of the Hindu Succession Act and as such the same is unavailing to the facts of the present case. It needs hardly be said that U.P.Z.A. & L.R.Act is a special Act where provisions of Hindu Succession Act are not applicable inasmuch as rights of the parties are governed by U.P.Z.A. & L.R.Act. The U.P.Z.A. & L.R.Act is a self contained Code and as such all the cases relied upon by the learned counsel for the appellant being one drawing cue from Hindu law will not be applicable to the facts of the present case.

As noted above, section 11 embodies the words ''maintenance allowance' and also the word ''allotted'. In the present case, there is no indicium on record to show that there was any decree for maintenance allowance or there was any document under which maintenance allowed was granted and in execution of which any land was allotted to Mst. Ram Dei. To the contrary, the first part of the gift deed leaves no manner of doubt that gift deed was executed and all rights of Karan Singh were transferred and persons mentioned in the gift deed were given possession on the date of gift deed though there is some reference of maintenance to Mst. Ram Dei in the subsequent part of the gift deed about subsequent share in the land after the death of Ram Dei as her heirs but the question that begs consideration is whether in case the transfer by way of gift deed was complete on the date of the gift deed alongwith three other co-tenants and she continued in possession alongwith three other persons who were also recorded in the revenue record as owner alongwith Mst. Ram Dei, section 18 of the Act would be attracted for application on all fours where it is envisaged that all land in possession or of or land or deemed to be held by an intermediary as sir, Khudkasht or an intermediary's grove shall, on the date of vesting, be taken to be settled in such intermediary. Admittedly, on the date of vesting, Mst. Ram Dei was recorded and was in possession of the land in dispute on the basis of gift deed and therefore, acquired bhumidhari rights as contemplated in section 18 of the U.P.Z.A. & L.R.Act. Section 11 of the U.P.Z.A. & L.R.Act cannot be called in aid for application to the present case.

The case-laws cited across by the bar as mentioned in the preceding part of this judgment, by the learned counsel for the appellant have also been scanned on the count whether the ratio flowing the decisions can be called in aid to enforce the submissions of the learned counsel. The decisions cited across the bar by the learned counsel for the appellants are decisions emanating from Hindu Succession Act 1956 and therefore, they are unavailing in the perspective of the present case in view of the fact that the question involved in the case is whether on the date of vesting i.e. Ist July, 1950, the right was created under the new statute i.e. U.P.Z.A. & L.R.Act under section 18 of the Act and by this reckoning, the Hindu Succession Act cannot be called in aid for application to the facts of the present case which is governed by the U.P.Z.A. & L.R.Act where a separate mode of succession is envisaged. On the other hand, the case laws cited across the bar by the learned counsel for the Opp. parties are fully applicable to the facts of present case inasmuch as the question involved in the decision cited across the bar related to a widow having interest in the property in question and the question was whether she could acquire any asami rights under section 11 or Bhumidhari rights section 18 of the U.P.Z.A. & L.R. Act would be applicable?    

As a result of foregoing discussion, I veer round to the view that the judgment and decree passed by the lower appellate court was passed in accordance with law and the courts below rightly held that Mst. Ram Dei acquired bhumidhari rights and in consequence, rightly transferred the same in favour of contesting defendants. The findings of the court below to the effect that sale deeds are not void as pleaded by the plaintiff on the averments made in the plaint, do not suffer from any taint of perversity.

In the result, the second appeals are bereft of merits and are accordingly dismissed.

M.H.

Sept.5,2005.


Copyright

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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