- (1.) One Sehti, the husband of Smt. Phoola died in a state of jointness in the year 1911. The said Smt.Phoola continued to be member of the joint family along with other brothers of her husband. A dispute arose in the family and a compromise was entered into on February 8, 1932 in which it was agreed that Smt. Phoola who was the widow in the family should be given some lands for maintenance. Her name was also mutated in revenue records.
(2.) The said Phoola executed sale deeds in favour of the respondents on April 6, 1956 in respect of the lands in question. She died in the year 1966. Thereafter, the appellants filed a suit for declaration that Smt. Phoola having only a limited interest in the said property could not have transferred the same in favour of the respondents. That suit abated in view of issuance of the notification under the provisions of U.P. Consolidation of Holdings Act, Thereafter, the same question as to whether the transfer could have been made or not by Smt. Phoola in favour of the respondents was raised before the Consolidation Officer. The Consolidation Officer upheld the right of Smt. Phoola to transfer the lands in question. The appeal filed on behalf of the appellants before the Settlement Officer (Consolidation) was also dismissed with the same finding. However, on revision application being filed on behalf of the appellants, the Deputy Director, Consolidation set aside the orders passed by the Consolidation Officer and the Settlement Officer (Consolidation). Thereafter, a writ petition was filed on behalf of the respondents before the High Court. A learned Judge of the High Court after taking into consideration the provisions of the U.P Zamindari Abolition and Land Reforms Act, 1950 (hereinafter to be referred to as the Land Reforms Act) and the provisions of the Hindu Succession Act (hereinafter to be referred to as the Succession Act) came to the conclusion that even before coming into force of the provisions of the Succession Act Smt. Phoola had acquired absolute right under Section 18 of the Land Reforms Act on the basis of which she could have conveyed valid title to the respondents. The High Court also proceeded to consider the effect of the provisions of the Succession Act in connection with the arguments raised before the High Court that the lands which had been given to Smt. Phoola for maintenance, were in lieu of a pre-existing right.
(3.) Learned counsel appearing for the appellants took the stand that in the present case, Section 11 of the Land Reforms Act shall be attracted and not Section 18. Section 11 and relevant part of Section 18 of the Land Reforms Act are as follows: "Section 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. Settlement of certain lands, with intermediaries of 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 intermediarys 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 or Patta Dawami or Istamrari referred to in Section 17, possessing the right to transfer the holding by sale. (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. ********** " ;