- (1.) One Raj Kishore was possessed of sir and khudkasht lands, which on his death in l923 devolved upon his widow Sanwari. With the coming into force on July 1, 1952 of the U. P. Zamindari Abolition and Land Reforms Act 1 of 1951, Sanwari acquired the status of a bhumidhar in respect of those sir and khudkasht lands. On December 18, 1952, Sanwari made a gift of the bhumidhari lands in favour of respondents 1 and 2. Sanwari died in 1954. Claiming to be the nearest reversioners to the estate of Raj Kishore, the appellants commenced an action in the Court of Munsif, Deoria, for a declaration of their title to the lands gifted by Sanwari, and for a decree for possession of those lands on the plea, inter alia, that holding only a Hindu widow's estate in the bhumidhari lands Sanwari was incompetent to create an interest by gift which was to enure beyond her lifetime. The suit was dismissed by the Trial Court, and the decree was confirmed in appeal by the Additional Civil Judge, Deoria. In second appeal before the High Court of Allahabad Desai, C. J., and S. N. Dwivedi, J., agreed with the judgments of the courts below. Jagadish Sahai, J., was of the opinion that Sanwari held in the bhumidhari lands in dispute only a life estate. Against the decree of the High Court confirming the decree of the District Court, the plaintiffs have appealed to this Court.
(2.) The U. P. Zamindari Abolition and Land Reforms Act 1 of 1951 was primarily intended to abolish the rights of intermediaries and to define the interest of various classes of holders in possession of agricultural lands who since the extinction of the rights of intermediaries had direct relation with the State. By S. 4 on the commencement of the Act all estates situate in Uttar Pradesh stood transferred to and vested in the State free from all enumbrances. Extinction of the interest of the intermediaries did not however affect the interest of the tenants in the land who derived their right of occupation from the intermediaries. By S. 129, for the purpose of the Act, there were to be three classes of tenureholders - (1) bhumidhars; (2) sirdars and (3) asamis. By S. 130 every person belonging to one of the classes specified in Cls. (a) and (b) was to be a bhumidhar and was to have all the rights and to be subject to all the liabilities, conferred or imposed upon bhumidhars by or under the Act. The persons so entitled to bhumidhari rights were - (1) all persons who as a consequence of the acquisition of estates became bhumidhars under S. 18; and (2) all persons who acquired the rights of bhumidhars under or in accordance with the provisions of the Act. Section 18 provided, subject to exceptions not material for the purpose of this appeal, that all lands of the descriptions in Cls (a) to (e) shall on the date immediately preceding the date of vesting be deemed to be settled by the State with the intermediary, lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of the Act, be entitled to take or retain possession as a bhumidhar thereof. Persons belonging to the classes mentioned in S. 3 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, who had obtained the declaration referred to in S. 6 of that Act in respect of any holding or share thereof were also to be deemed bhumidhars of the holding or the share therein in respect of which the declaration had been made and continued in force. Section 134 provided for acquisition of bhumidhari rights by a sirdar, by paying to the credit of the State Government an amount equal to ten times the land revenue payable or deemed to be payable on the date of application for the land of which he is the sirdar. The Act provided by S. 189 that the interest of a bhumidhar in his holding or any part thereof shall be extinguished - (a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of the Act; (aa) when the holding or part thereof has been transferred or let out in contravention of the provisions of the Act; (b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land, or (c) when he has been deprived of possession and his right to recover possession is barred by limitation. By S.152 it was provided that : "The interest of a bhumidhar shall be transferable subject to the conditions hereinafter contained in this chapter." Restrictions on the rights of a bhumidhar to transfer a holding by sale, gift, mortgage, lease and exchange were prescribed by Ss. 154. 155, 156 and 165 and transfers in contravention of the provisions rendered the bhumidhars liable to eviction from the holding. Section 169 provided: "(1) A bhumidhar may by will bequeath his holding or any part thereof except as provided in sub-section (2). (2) No bhumidhar entitled to any holding or part in the right of a widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased, may bequeath by will such holding or part. (3) * * * * *' Section 171 provided, inter alia, that subject to the provisions of S. 169, when a bhumidhar being a male dies, his interest in his holding shall devolve upon classes of heirs male and female - in the order of succession given in Cls. (a) to (r). The section was amended from time to time. Females who were entitled to inherit to the holding under the section as finally amended by Act 37 of 1958 were - (a) widow of a predeceased male lineal descendant who has not re-married when there were male descendants; (b) widow and widowed mother and widow of a predeceased male lineal descendant in the male line of descent, who had not re-married; (ee) unmarried daughter; (ff) unmarried sister, (g) married daughter; (m) married sister; (n) half-sister being the daughter of the same father as the deceased. Section 172 (1) provided, inter alia, that on the death or marriage of a woman who had inherited the interest in the holding after the date of vesting under the Act, as an heir to a male bhumidhar as a widow, widow of a male lineal descendant, mother, father's mother, daughter, son's daughter or sister or half-sister of the last holder, the holding shall devolve upon the nearest surviving heir determined in accordance with the provisions of S. 171 of the last male bhumidhar, and the same rule of devolution shall be followed when the female heir abandons or surrenders the holding. Sub-section (2) of S. 172 dealt with Revolution of interest on the death of a female bhumidhar belonging to any of the classes listed in sub-s. (1) who had inherited an interest in any holding before the date of vesting, as an intermediary of the land comprised in the holding, or held the holding as a tenant belonging to the classes specified. If the female holder was entitled to a limited estate in the holding in accordance with the personal law, the interest was to devolve upon the nearest surviving heirs in accordance with the provisions of S. 171 of the last male intermediary or tenant of the land, and if she was under the personal law entitled to the holding absolutely, it was to devolve in accordance with the table in S. 174. It was further provided that where a femal bhumidhar of any of the classes mentioned in sub-s. (2) dies, abandons or surrenders and where the female being a widow, widow of a male lineal descendant in the male line of descent mother father's mother, marries and such bhumidhar on the date immediately before the date held the holding otherwise than as an intermediary or tenant referred to in Cl. (a) of S. 172 (2), the holding shall devolve upon the nearest surviving heir of the last male tenant, ascertained in accordance with the provisions of S. 171. Section 172-A, which was incorporated by Act 30 of 1954, provided that where an inferior female tenureholder like a sirdar or an adhivasi has inherited any interest in any holding in any of the relationships mentioned in S. 171 (2) and has acquired the rights of a bhumidhar in such land, the right so acquired shall for purposes of devolution under S. 172 be deemed to be accession to the holding of the last male holder thereof. Section 174 provided, inter alia, that when a female bhumidhar, [other than a bhumidhar mentioned in Ss. 171 (Sic) or 172] dies, her interest in the holding shall devolve in accordance with the order of succession given in that section. By that list, the predeceased son's widow and predeceased son's predeceased son's widow, daughter, mother and sister were the female heirs competent to inherit the holding. Section 175 provided that in the case of a co-widow, or a co-tenure-holder, who dies leaving no heir entitled to succeed under the provisions of the Act, the interest shall pass by survivorship.
(3.) Section 152 expressly provides that the interest of a bhumidhar shall be transferable, subject to the conditions contained in Ch. VIII. The conditions to which the transfer is subject are to be found in Ss. 154, 155, 156, 157, 161, 163, 164 and 165. These conditions do not purport to qualify the interest or the title in the holding of a bhumidhar, they merely impose restrictions upon the right of a bhumidhar to transfer his interest. By S. 152 no distinction is made between the power to transfer the interest by act intervivos by a made bhumidhar and a female bhumidhar Prima facie, therefore, the power of a female bhumidhar to transfer her interest in a holding by act inter vivos its as extensive as the power which a male bhumidhar may exercise in respect of his interest in a holding. By S. 169 (1) a bhumidhar is declared competent by will to bequeath his holding or any part thereof except as provided in sub-s. (2). But a female bhumidhar belonging to any of the classes specified in sub-s. (2) is declared incompetent to bequeath by will her holding. This restriction operates against every female bhumidhar entitled to a holding in the right of a female relation mentioned in sub-s. (2). It is plain on the words of the statute that a female who is entitled to the holding in the right of a widow of a male lineal descendant in the male line, or mother, daughter, father's mother, son's daughter, sister or half-sister, whether under S. 171 or under S. 174, is declared incompetent to bequeath the holding by will.;