R.B. Misra, J. - (1.) THIS special appeal is directed against a decision of a learned Single Judge dismissing the Appellants petition Under Article 226 of the Constitution.
(2.) THE dispute relates to agricultural plots Nos. 227 and 33. In the basic year these plots were entered in the names of Smt. Mahadeiya wife of Ghura and of Lurkhur son of Sawab and in the remarks column there was a note appended that Mst. Mahadeiya had died and the names of her heirs were to be entered. Ram Adhar and Jhuri (Respondents Nos. 2 and 1 respectively) filed objections alleging that they were the heirs of Smt. Mahadeiya, being the sons of Ghura. They also set up a will alleged to have been executed by Ghura on 15th March, 1917. Lurkhur, the Appellant, on the other hand claimed himself to be the heir and alleged that Jhuri and Ram Adhar were not the sons of Ghura. He alleged that Ghura in fact died issueless and in his life time his wife Smt. Mahadeiya had married one Ram Ratan Lohar of Rasoolpur; that after Ram Ratan's death Smt. Mahadeiya remarried Deo Lohar of Chaura; and that Jhuri and Ram Adhar are the sons of Smt. Mahadeiya not from Ghura but from her other husbands. The Consolidation Officer dismissed the objections of Jhuri and Ram Adhar, who went up in appeal but the appeal was also dismissed by the Asstt. Settlement Officer (Consolidation). Jhuri and Ram Adhar, therefore, went up in revision before the Dy. Director of Consolidation, who allowed the revision application and set aside the order passed by the Asstt. Settlement Officer (Consolidation) on the finding that Smt. Mahadeiya could not succeed Ghura on account of her re -marriage but she became a tenant in her own right by estoppel and acquiescence. Lurkhur Appellant thereupon filed a petition Under Article 226 of the Constitution, which was dismissed by a learned Single Judge of this Court on 30th April, 1964, giving rise to the present special appeal. Sri V.K.S. Chaudhary, appearing for the Appellant, has raised a number of contentions. His first contention is that the plots in question are admittedly fixed rate tenancy so, after the death of Ghura, the devolution would be governed not by the UP Tenancy Act but by personal law, which in this case would be the Hindu Law.
(3.) IT is the common case of the parties that Ghura died long before the date of vesting and therefore, on Chura's death his widow Smt. Mahadeiya inherited the widow's estate. After the death of Mahadeiya subsequent to the date of vesting the succession would be governed by the provisions of Section 172(2) of the UP ZA and LR Act. Section 172(2), so far as is material for our purpose, reads thus: Where a bhumidhar or sirdar who has before the date of vesting inherited an interest in any holding as 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 - - (a) dies and such bhumidhar or sirdar was on the date immediately before the said date an intermediary of the land comprised in the holding, or held the holding as fixed rate tenant, or an ex -proprietary or occupancy tenant in Avadh, or as a tenant on special terms in Avadh, and (i) she was in accordance with the personal law applicable to her entitled to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir, such heir being ascertained in accordance with the provisions of Section 171 of the last male intermediary or tenant aforesaid; and if (ii)... ... ... As said above, Smt. Mahadeiya had inherited the property from her husband Ghura long before the date of vesting and as a widow she had only a limited estate, usually called the widow's estate. So both the conditions contemplated by Sub -section (2) of Section 172, UP ZA and LR Act are satisfied and the succession in this case would be governed by Section 171 and not by Section 174 of the UP ZA and LR Act. Section 174 could be attracted only if Smt. Mahadeiya had held the property of her husband absolutely. That, however, is not the position. Under the Hindu Law Smt. Mahadeiya was entitled only to a widow's estate and as such, she had only a life estate. Now, if Section 171 governs the succession, as it should, in this case, Jhuri and Ram Adhar could not be the heirs.;