Srivastava, J.:— This is a plaintiff's appeal. Ganga Ram was the occupancy tenant of a certain holding and owned a house also. On his death Smt. Shyam Kuer his widow, became the occupancy tenant of the holding and the owner of the house. After the date of vesting under the Zamindari Abolition and Land Reforms Act she became a Bhumidhar of the holding by depositing ten times the rent. She executed a deed of gift in respect of the holding and the house on the 18th of February, 1953 in favour of Kawal Singh, a son of one of her daughters. The plaintiffs who are the sons of her other daughter claimed to be the next reversioner of her husband and sought to avoid the gift and wanted it to be declared that as the widow had only a limited interest in the holding and the house the gift made by her would not be binding on them or the actual reversioner of her husband after her death. The trial court decree the suit in respect of the house but dismissed it in respect of the holding. The plaintiffs went up in appeal and the decree of the trial court was affirmed. The view taken by the lower appellate court is that so far as the bhumidhari holding was concerned, the widow had a right to give it away and the gift would enure even after her death. The reversioner of her husband had, therefore, no right to challenge the gift.
2. So far as the house is concerned, as the donee did not appeal against the decision of the trial court, that decision has become final and it is not necessary to consider its correctness or otherwise. It is urged by the plaintiffs in second appeal that the view taken by the lower appellate court in respect of the holding is incorrect and that as the widow had only a limited life estate in the Bhumidhari holding, a gift made by her would not be binding upon the reversioner of her husband after her death. The suit, it is urged, should, therefore, have been decreed in respect of the holding too.
3. Bhumidhari rights are a creation of statute and came into existence for the first time with the enactment of the Zamindari Abolition and Land Reforms Act. For finding out the incidents of the right, therefore, one has to refer to the provisions of the Act and cannot go outside it. It is conceded on behalf of the plaintiffs that there is nothing in the Act providing that widows like Smt. Shyam Kuer have only limited life estate in their Bhumidhari holding or that they have no right to make the gift like the one which is in question. Except to the extent laid down in Sec. 172, Bhumidhari rights are not to be governed or affected in any way by the personal law of the Bhumidhar. The same provisions of the Act are to be applicable whether the Bhumidhar is a Hindu or a Muslim or a person following any other religion. The Act expressly provides under Sec. 152 that Bhumidhari rights shall be transferable subject to the limitations laid down in Chapter VIII of the Act. Transfer by gift is specifically provided for in Sec. 154 and the only condition laid down is that a gift cannot be made to a person, the total area of whose holding will exceed 30 acres as a result of the gift. It is also expressly laid down that succession to a Bhumidhar will be governed by the provisions of the Act. It follows that it will not be governed by his or her personal law. It is, therefore, difficult to say on what basis it can be urged that Smt. Shyam Kuer had only a life estate in the Bhumidhari holding and could not make an absolute gift of it in favour of any one she liked.
4. Reliance has, however, been placed on Sec. 169 and Sec. 172, clause (2) of the Act in support of the contention that Smt. Shyam Kuer could not make a gift to the prejudice of the reversioner of her husband.
5. Sec. 169 only provides that a Bhumidhar cannot by will bequeath his holding or any part thereof except as provided in sub-sec. (2). This means that, though a Bhumidhar has a right to will away his holding, the right is a restricted one and the will can be made only in favour of the persons mentioned in sub-sec. (2) of Sec. 169 and in the manner laid down in sub-sec. (3) of that section. The is, therefore, no absolute prohibition even in respect of the making of a will by a Bhumidhar. There is nothing in the section to justify the contention that a Bhumidhar like Smt. Shyam Kuer possessed only a life estate in her holding and cannot on that account make a will or gift in respect of it. In any case the limitations contained in Sec. 169 on the power of making a will cannot with any justification be extended to cover the power to make a gift.
6. Sec. 171 contains the order of succession in which the interest of a Bhumidhar is to devolve after his death. By implication this section excludes all considerations of the personal law of the Bhumidhar so far as succession to his holding is concerned. Sec. 172 engrafts a sort of exception to the rule laid down in Sec. 171. Sub-sec. (1) of Sec. 172 provides that, if the succession to the Bhumidhari rights opens after the date of vesting and the interest is inherited by the females named in the sub-section, when they die, marry, abandon or surrender the holding or any part thereof, the holding shall devolve not on their personal heirs, but on the heirs of the last male Bhumidhar. Sub-sec. (2) of Sec. 172 lays down a special rule for succession in respect of those female Bhumidhurs who are mentioned in the sub-section and who have inherited an interest in the holding before the date of vesting. In their case, if the person from whom they have inherited the holding was before the date of vesting an intermediary or a tenant of the kind mentioned in clause (a) of the sub-section, the personal law applicable to the female Bhumidhar will have to be taken into consideration. If according to that personal law she was entitled only to a life estate in the holding the holding shall devolve on her death not on her own heirs but on the heirs of the last male-holder. If on the other hand, according to her personal law she had an absolute right in the holding it will devolve on her death on her own heirs according to the line of succession provided in Sec. 174. If, however, the last male-holder from whom she had inherited the holding was not before the date of vesting an intermediary or a tenant of the kind mentioned in clause (a) of sub-sec. (2), then on the death or marriage of and abandonment or surrender by such female-holder, the holding shall go to the nearest surviving heir of the last male tenant. The practical effect of these provisions is that in certain contingencies depending upon the personal law of the female-holder and the person from whom she has inherited her interest in the holding, the holding is to devolve on the heirs mentioned in Sec. 174, while in other contingencies it is to devolve on the heirs of the last male-holder mentioned in Sec. 171. These provisions, however, come into play only on the death, marriage, abandonment or surrender of the holding by the female-holder. In other words, they only determine who is to get the holding in case the interest of the female-holder comes to an end in one of the ways mentioned in the section. There appears to be nothing in Sec. 172 from which it can follow that even while the female-holder retains her interest in the holding, she has only limited right in it and can deal with it only in the manner in which females with a limited life estate can deal with their properties under Hindu Law. The provisions in Sec. 172 cannot apply to the present case and the plaintiffs cannot get any advantage of the same for the simple reason that Smt. Shyam Kuer has not yet died or remarried. She has also not abandoned or surrendered her holding. She has only executed a deed of gift in respect of it and in view of what has been laid down in Lala Sri Ram v. Nand Kishore 1958 A.I.R All. 107., the execution of the gift deed cannot amount to an abandonment of the holding.
7. The learned Civil Judge, therefore, appears to be correct in his view that there/was nothing to debar Smt. Shyam Kuer from making the gift which she has made and that the plaintiffs could not challenge it or get it declared that it will not enure after her life-time. The suit in respect of the Bhumidhari holding thus appears to have been rightly dismissed.
8. There is no force in this appeal and it is dismissed under Order 41 Rule 11, C.P.C Permission for leave to appeal is prayed for, but is not granted.
9. Appeal dismissed.
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