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Ram Jag Mistri v. Director Of Consolidation

Allahabad High Court

Aug 8, 1967

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

This is a writ petition under Article 226 of the Constitution of India seeking certiorari to quash two consolidation-stage orders: the order of the Settlement Officer, Consolidation dated 31-5-1965 and the order of the Director of Consolidation dated 16-2-1966. The dispute concerns two occupancy-tenancy plots (Nos. 199 and 200) in village Chokia (Udai-ka-Pura), Taluqa Chauthar, pargana Bhadohi, district Varanasi. The plots originally belonged to Sheo Harakh’s occupancy holding and later involved his sons Ram Rup, Ram Jag (petitioner No. 1) and Ram Sundar. Petitioners Nos. 2–6 are descendants of Ram Rup. Smti. Phulbasi (opposite party No. 4) was the widow of Ram Sundar (died circa 1939).

After Ram Sundar’s death there was litigation between Smti. Phulbasi and collaterals; a compromise decree dated 29-2-1944 recorded that she admitted the defendants’ claim that Ram Sundar had died as a member of the joint family and that the property was joint family property. By the compromise she was recognised to remain in possession of the two plots (and other property) in lieu of maintenance, with a proviso that she would have no right of transfer during her lifetime. Possession was recognised with effect from 1351 Fasli and in 1357–1358 Fasli her name was recorded in revenue papers as co-tenure-holder.

During consolidation operations under the U.P. Consolidation of Holdings Act, her name appeared in Consolidation Form No. 5 as a co-tenure-holder (one-third share) for khata No. 55. The petitioners objected to this; the Consolidation Officer ordered expungement of her name from the tenancy khata and entry only in the remarks column as occupant in lieu of maintenance. Smti. Phulbasi appealed; the Settlement Officer held the compromise had the effect of transferring the two plots to her (not merely a licence) and ordered her name recorded as bhumidhar. A revision to the Director of Consolidation was dismissed. The present writ challenges those appellate and revisional orders.

Legal Issues Presented

Whether the consolidation courts were justified in holding that Smti. Phulbasi could be treated as a joint khata-holder and bhumidhar of the two plots in question.
Whether the compromise decree of 29-2-1944, which gave possession in lieu of maintenance and prohibited transfer during lifetime, should be interpreted as creating only a limited estate (maintenance-right) or as effecting a transfer that would make Smti. Phulbasi a full owner under subsequent statutory law.
Whether sub-section (2) of section 14 of the Hindu Succession Act, 1956 (which preserves restricted estates created by decree or other instruments) prevents application of section 14(1) to make Smti. Phulbasi a full owner of the plots.

Arguments of the Parties

Petitioners' Arguments

The 1944 compromise was intended to give Smti. Phulbasi possession merely in lieu of maintenance and to prohibit her from transferring the plots during her lifetime; it did not transfer full ownership.
On this basis the petitioners alleged an error of law apparent on the face of the consolidation courts’ records and sought correction by certiorari.
The petitioners relied on sub-section (2) of section 14 of the Hindu Succession Act, 1956, to argue that where rights are determined by a decree the restrictive terms of that decree should preclude enlargement into full ownership under section 14(1).

Opposite Party No. 4's (Smti. Phulbasi) Arguments

In the counter-affidavit it was averred that the tenancy plots were heritable and transferable under the Tenancy Law of Banaras State (a position not disputed in respect of the khata by the petitioners).
It was further contended that by virtue of the Hindu Women's Rights to Property Act, 18 of 1937, Smti. Phulbasi could lay claim to her deceased husband's property and was not limited to maintenance-only rights.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shakuntala Devi v. Beni Madhav, AIR 1964 All 165	Authority for the proposition that section 14 of the Hindu Succession Act applies to all “property”, including agricultural lands.	The Court relied on this precedent to support the view that agricultural occupancy holdings fall within the ambit of section 14(1), thereby supporting the conclusion that Smti. Phulbasi could be treated as full owner (bhumidhar) of the plots.
Amar Singh v. Baldev Singh, AIR 1960 Punj 666	Also cited as authority that section 14 applies to agricultural land (property broadly defined under section 14).	Used alongside Shakuntala Devi to establish that the statutory definition of “property” in section 14(1) includes agricultural holdings, reinforcing the statutory basis for regarding Smti. Phulbasi as full owner.

Court's Reasoning and Analysis

The Court proceeded step by step:

It noted the undisputed factual matrix: the 1944 compromise, recognition of possession in lieu of maintenance with effect from 1351 Fasli, and official revenue entries in 1357–1358 Fasli recording Smti. Phulbasi’s name.
It rejected the relevance of the Hindu Women's Rights to Property Act, 1937 as applied in Banaras, for the date of Ram Sundar’s death (circa 1939) preceded the Act’s extension to Banaras State (notification dated 27-11-1941). Thus the 1937 Act did not assist the respondent’s counter-affidavit on that ground.
The Court examined section 14 of the Hindu Succession Act, 1956. Section 14(1) makes property possessed by a female Hindu full-owned property; its Explanation lists acquisition in lieu of maintenance among the modes of acquisition included within “property”.
Relying on precedents (Shakuntala Devi and Amar Singh), the Court accepted that section 14 applies to agricultural holdings, so the plots fall within the statutory scheme.
The Court considered whether section 14(2) (preserving restricted estates created by gift, will, decree, etc.) excluded operation of section 14(1). It concluded that the compromise here was a family arrangement under which Smti. Phulbasi obtained possession in lieu of maintenance and that the decree merely confirmed that family arrangement. She did not acquire the property by a decree or order imposing a restricted estate that would be preserved by section 14(2).
Because the 1944 arrangement and possession were in lieu of maintenance and not under a decree that created a restricted estate to survive the enactment of the Hindu Succession Act, the Court held that section 14(1) applied to enlarge her estate into full ownership (bhumidhar) after the Hindu Succession Act came into force.
The Court observed that although the consolidation courts reached their conclusion by approaching the question as a transfer effected by the compromise (i.e., different reasoning), they had arrived at the correct result. The consolidation courts had not considered the effect of the Hindu Succession Act explicitly, but their conclusion—that Smti. Phulbasi was bhumidhar—was correct on statutory grounds.
Accordingly, there was no error of law, much less an error of law apparent on the face of the record, warranting interference by writ.

Holding and Implications

Holding:

Writ petition dismissed.

Implications:

The orders of the Settlement Officer, Consolidation and the Director of Consolidation (which recorded Smti. Phulbasi as bhumidhar/joint khata-holder of the two plots) stand; the Court found no error warranting certiorari interference.
On the statutory analysis, because Smti. Phulbasi had possession in lieu of maintenance and the restrictive terms of the 1944 compromise did not create a decree-based restricted estate that would survive the operation of the Hindu Succession Act, 1956, section 14(1) applies and she must be regarded as full owner (bhumidhar) of the plots.
The writ petition was dismissed with costs to the contesting respondents. The Court did not purport to lay down a novel precedent beyond applying section 14(1) to these facts and upholding the consolidation courts’ outcome.

End of summary based exclusively on the provided opinion.

Show all summary ...

1. This is a petition under Article 226 of the Constitution of India and the prayer is that the order of the Director of Consolidation (opposite party No. 1) passed on 16-2-1966 and of the Settlement Officer Consolidation (opposite party No. 2) passed on 31-5-1965 be quashed by the issue of a writ in the nature of certiorari. This writ petition arises out of a proceeding under section 9A(2) of the U.P Consolidation of Holdings Act as amended upto date and the dispute relates to two occupancy tenancy plots of pre-zamindari abolition era, to wit, plots Nos. 199 (10 biswas 9 dhurs) and 200 (10 biswas 10 dhurs) of village Chokia alias Udai-ka-Pura, Taluqa Chauthar, pargana Bhadohi, district Varanasi These two plots originally formed part of the occupancy holding of Sheo Harakh, who had three sons, namely Ram Rup, Ram Jag (petitioner No. I) and Ram Sundar. Petitioners Nos. 2 to 6 are the descendants of Ram Rup while Sm. Phulbasi (opposite party No. 4) is the widow of Ram Sundar, who died sometime in the year 1939 After the death of Ram Sundar there was some dispute between Sm. Phulbasi on the one hand and the collaterals of her husband on the other and Sm. Phulbasi had to institute a suit against them on the allegations that her husband Ram Sundar was separate from other members of his family at the time of his death. However, a compromise was arrived at between the parties rs a result of which the plaintiff i.e Sm Phulbasi (opposite party No. 4) admitted the defendants' claim that Ram Sundar, her late husband, had died while he was still a member of the joint family along with the present petitioners and that the entire property was joint family property. The defendant? of that suit by means of that compromise recognised the right of Sm Phulbasi to remain in possession of the two plots, now in dispute, along with certain other property in lieu of maintenance, past and future. It was also provided that she shall have no right of transfer over the property which was being given to her in lieu of maintenance. The compromise decree was passed on 29-2-1944. It was also provided in the compromise that the possession of the plaintiff over the plots and other property which had been given to her duly recognised with effect from 1351 Fasli. During the years 1357 and 1358 Fasli the name of Sm. Phulbasi was recorded in the revenue papers as co-tenure-holder of the plots.

2. When the U.P Consolidation of Holdings Act was enforced and consolidation operations were started in the village in question the name of the opposite party no. 4 appeared in Consolidation of Holdings Form No. 5 as a co-tenure-holder of the petitioners to the extent of one-third share in khata No. 55. The petitioner filed an objection that the entry, regarding her being a co-tenure-holder be expunged. Sm. Phulbasi also filed an objection claiming that she had become a bhumidhar of the two plots in question. The Consolidation Officer ordered that her name be expunged from the tenancy khata and that it should be entered only in the remarks column against these two plots as an occupant in lieu of maintenance. Opposite party No. 4 went up in appeal before the Settlement Officer, Consolidation, who look the view that the effect of the compromise was that the two plots in question stood transferred to her and that she was not a licence therefor. He therefore, ordered that the name of Sm. Phulbasi (opposite party No. 4) be recorded over the two plots as bhumidhar. The petitioners filed a revision application which was dismissed. The present writ petition is, therefore, directed against the orders passed by the Settlement Offcer, Consolidation, in appeal and the Director of Consolidation in revision.

3. It is contended that the compromise arrived at between the parties in the year 1944 has not been properly interpreted and the opposite party No. 4 being a widow in the joint family had no interest in the family property and that he was in possession of the two plots in question merely in lieu of maintenance by virtue of the compromise decree of 1944. On the basis of these assertions it is alleged that there is an error of law apparent on the face of the record which should be corrected by means of a writ in the nature of certiorari.

4. Most of the facts mentioned in the writ petition and narrated above were not disputed by opposite party no. 4. It was, however alleged by means of a counter affidavit that the tenancy plots in question were heritable as well as transferable under the Tenancy Law of Banaras State That position is not disputed on behalf of the petitioner so far as the khata of which the two plots in question form part is concerned. Another averment made in the counter affidavit was that Sm. Phulbasi could, by virtue of the provisions of the Hindu Women's Rights to Property Act, 18 of 1937, lay claim to her deceased husband's property and the contention of the petitioners that she was entitled only to maintenance allowance was without any force.

5. This contention in the counter affidavit is, however, of no avail because the Hindu Women's Rights to Property Act (Act 18 of 1937) was extended to Banaras State by means of Notification No. 180.XVII-3-3/1940-1941 dated 27-11-1941, published in the Banaras State Gazette dated 10-12-1941. Ram Sundar died sometime in the year 1939 and by that time the Hindu Women's Rights to Property Act, 18 of 1937, was not enforced in Banaras State.

6. Learned counsel for the petitioner has contended that there is an error of law apparent on the face of the record because under the terms of the compromise it was specifically provided that

(1) the two plots in question were being given to Sm. Phulbasi in lieu of her right of maintenance, and

(2) she could not transfer these plots during her lifetime.

7. It is contended that the opposite party no. 4 having been given some property by means of a family arrangement could not claim that the property had been transferred to her under the compromise decree and, therefore, the line of argument adopted by the consolidation courts was wrong.

8. The khata of which the two plots in question formed part was an occupancy holding. It is not disputed that in the Banaras State the land of occupancy holding was both heritable and transferable. With the enforcement of the U.P Zamindari Abolition and Land Reforms Act, 1951, as applied to Banaras State the khata-holders of the disputed khata, of which the two plots in question formed part, were to became bhumidhars of the land (vide section 18 of the U.P Zamindari Abolition and Land Reforms Act, 1951).

9. The main question for consideration is whether the consolidation courts were justified in arriving at the finding that Sm. Phulbasi (opposite party no. 4) could be treated as a joint khata-holder and bhumidhai of the plots in question.

10. Section 14 of the Hindu Succession Act, 1956, provides as follows:—

“14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not ab a limited owner

Explanation — In this sub-section ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person whether a relative or not, before at, or after her marriage, or by her own skill, or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhan immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or decree, order or award prescribed a restricted estate in such property.”

11. The section applies to all “property” including agricultural lands as was held in the case of Shakuntala Devi…Applicant; v. Beni Madhav…Opposite Party., AIR 1964 All 165 and Amar Singh v. Baldev Singh, AIR 1960 Punj 666.

12. All the requirements of sub-section (1) of section 14 were, therefore, fulfilled as according to the compromise decree and also the averments made in the petition Sm. Phulbasi, opposite party no. 4, had remained in possession of the plots in question in lieu of maintenance allowance. She must, therefore, be regarded to be the bhumidhar of the plots and not merely a limited owner as she must have been considered prior to the passing of the Hindu Succession Act, 1956.

13. The learned counsel for the petitioner has placed reliance on sub-section (2) of section 14 and has contended that inasmuch as the rights of the parties in regard to the property in question had been determined by means of a decree of the court the provisions of sub-section (1) of section 14 shall not apply.

14. In my opinion there is no force in this argument. Sm. Phulbasi got possession over the plots in question as she (was) a widow of the family and clearly entitled to maintenance. The decree merely confirmed the family arrangement she got the property in lieu of maintenance under a family arrangement. She did not acquire the property in question under a decree or order of the civil court.

15. The object of sub-section (2) of section 14 of the Hindu Succession Act, 1956, is to confine the language of sub-section (1) to its own subject and to stress its co-existence with sets of provisions in other enactments, such, for instance, as the Transfer of Property Act and the Indian Succession Act which may be applicable to Hindus its object is also to make it abundantly clear that a restricted estate can even after the commencement of the Hindu Succession Act 1956 come into existence in case of interest in property given to a female Hindu, by operation of transactions inter vivos, by testamentary disposition, by decree or order of a civil court or under an award. It also makes it clear that any such restricted estate created prior to the commencement of the Act will not be enlarged into full ownership by operation of sub-section (1) if the gift, will, other instrument, decree, order or award had prescribed a restricted estate. However, in the present case we are concerned with a family arrangement under which certain property was ear-marked for Sm. Phulbasi, in lieu of her maintenance allowance, past and future. It is nowhere mentioned in the compromise decree that after the death of Sm. Phulbasi the plots in question will revert to the collateral of her husband. All that was mentioned therein was that during lifetime she will have no right to make any transfer of the property. It may be that in case Sm. Phulbasi had died prior to the commencement of the Hindu Succession Act, 1956, the plots in question might have gone bock to the next reversioners of her husband. However, the effect of the passing of the Hindu Succession Act, 1956, is that she becomes a full owner (bhumidhar) of the plots in question.

16. The consolidation courts have considered this matter from a slightly different angle holding that the two plots in question stood transferred to Sm. Phulbasi under the compromise decree and that she was not a licence therefor. They did not consider the effect of the Hindu Succession Act, 1956 They, however, arrived at the correct conclusion.

17. No case for interference is made out as there does not appear to be any error of law, much less an error of law apparent on the face of the record. The writ petition is dismissed with costs to the contesting respondents.

DRR

18. Writ petition dismissed.