K. N. Misra, J. - (1.) HEARD learned counsel for the petitioners and perused the impugned order dated 31st December 1981 passed by the Deputy Director of Consolidation.
(2.) THE petitioners Bal Kishun and Dhaniram, sons of Gulley, asserted that they are the sole tenure holders having inherited the land in dispute after the death of their father, Gulley. Opposite party no. 1 Ghamandi, claiming to be son of Gulley, filed an objection under section 9-A (2) of the U. P. Consolidation of Holdings Act praying that his name be recorded as co-tenure holder along with the petitioners, who are his real brother. THE petitioners contested the claim of opposite party no. 1 asserting that he is not their real brother. THE consolidation authorities have recorded a finding to the effect that Ghamandi is son of Gulley and was born posthumously and in this view of the matter the Deputy Director of Consolidation has held to be co-tenure holder entitled to 1 /3rd share in the holding in dispute. Learned counsel for the petitioners contends that even accepting the finding recorded by the Consolidation Authorities to the effect that opposite party no. 1 was son of Gulley, but since he was born posthumously as such he was not entitled to inherit the land in dispute. In support of his contention learned counsel placed reliance upon a single Judge decision of this court in Ramjas v. The Board of Revenue, 1963 AWR 354, in which the earlier decision of a learned single Judge in Mangali Prasad v. Ram Balak, 1956 AWR 752 was relied upon. Learned counsel for the petitioners further cited a Full Bench decision of the Board of Revenue in Dulli v. Imarti Devi, 1966 AWR 51 (Revenue section), and Inderjit Singh v. Ramjit Singh, 1949 RD 257. In the aforesaid decision of Ramjas (supra) it has been held that : "It is true that under Hindu law and the English law, legal personality is attributed to an unborn child for certain purposes.............We should, therefore, adopt the general rule that legal personality does not take effect till the birth of the child." The aforesaid decisions were considered by a Division Bench of this Court is Ram Dayal v. Bhim Sen, 1965 AWR 755 wherein it was held : "The general rule is that an estate is not held in abeyance on the death of its owner. It vests in his heir then living. This rule would also apply to Section 35, U. P. Tenancy Act. According to all civilized systems of jurisprudence a child in embryo at the death of the holder of a proprietary interest, if born alive after his death, is deemed to be living at his death."
(3.) IN this view of the matter it was held that the daughter's son, who was in the womb at the death of his maternal grand-father or his widow, would inherit the latter's tenancy. After considerating the original texts of the Hindu Law as well as several decided cases on the point it was observed that : "We are unable to see any reason why Section 35............from the general system of law sub silentio." IN the aforesaid decision it was further held : "It is not easy to overlook the irrational hardships............It is not necessary to give further instances of hardship. These hardships are not inevitable on the language of Secs. 35, 38 and 45.... .........aviod unintelligible hardships-see State of Gujrat v. Shyamlal Mohan Choksi, AIR 1965 SC 1251." In earlier decisions the Board of Revenue construed the provisions of succession contained in section 22 (a) of the Agra Tenancy Act, Act II of 1901, and held that posthumous son succeeds to the occupany holding of his father under section 22 (a) of the Agra Tenancy Act. See Nanhe v. Durga Narain Singh, 1922 RD 470, and Sukhrania v. Bal Mukund, 1923 RD 515.;