- (1.) This appeal by special leave arises from the judgment of the learned single Judge of the Allahabad High Court, made in W. P . No. 1894/73 on May 8, 1979.
(2.) The admitted facts are that one Jallo had purchased the proprietary rights of Zamindari in 1933. She, thereby, became Khudkhash-holder, in other words, proprietary-holder. She inducted her husband Tunda as a tenant who died in 1358 F., i.e., 1947-48. The U.P. Zamindari Abolition Act had come into force in 1359 F., i.e. 1948-49. The question arose : as to who had succeeded to the estate of either Tunda or Jallo in respect of the lands bearing Khata Nos. 76, 96 and 108 in Danawali alias Atta within police station Nachra Tehsil Hapur, District Meerut, now renamed as Ghaziabad; The Tribunals under the Consolidation Act had held that after the demise of Tunda the subordinate interest of tenancy rights held by him stood merged in the proprietary right held by Jallo and thereby Section 174 of the U.P. Zamindari Abolition and Land Reforms Act (for short, the 'Act') would apply which stood confirmed by the Director. In the writ petition the learned single Judge had held that since Tunda had the tenancy rights and on his demise his wife succeeded to the tenancy rights, by operation of S. 172 of the Act; she succeeded to that interest as a widow of Tunda and on her demise the succession would go to the heirs specified in Section 172. Birbal, the brother of Tunda, therefore, would get the tenancy rights in preference to the appellant-daughters of Tunda and Jallo. The question is whether the view taken by the High Court is correct in law
(3.) It is seen that under Section 171 of the Act the general order of succession is regulated. It postulates that subject to the provisions of Section 169, when a bhumidar or assami, being a male, dies, interest in his holding shall devolve in accordance with the order of succession envisaged therein. Since Tunda was not a bhumidar of the lands in the aforestated Khata numbers, Section 171 has no application. Section 172 prescribes succession thus : "172. Succession in the case of a woman holding an interest inherited as a widow .............. (1) when a bhumidar, or assami who has after the date of vesting, inherited an interest in any holding (a) as a widow - dies, and such bhumidar was on the date immediately before the said date an intermediary of the land comprised in the holding or held as a fixed rate tenant, or an exproprietary or occupancy tenant in Avadh or as a tenant on special terms in Avadh and she shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of last male intermediary or tenant.";