R.M. Sahai, J. - (1.) THESE are two connected writ petitions arising out of common order passed by the Dy. Director, Consolidation. The dispute between the parties was in respect of five khatas. It is admitted that the property belonged to one Tunda who died in 1357F. After his death the property devolved on his widow Smt. Jallo who died in 1968. Tunda had two other brothers Harkesh and Birbal. The dispute before the consolidation authorities was between Birbal brother of Tunda and seven daughters of Smt. Jallo and Sukhan son of Harkesh. Out of five khatas, khata Nos. 17 and 15 were sir of Tunda and the remaining khatas i. e. 76, 96 and 198 were tenancy land. It is admitted that succession in respect of sir land was governed by personal law and in respect of remaining by Tenancy Act. The appellate authority found that after the death of Smt. Jallo, (accession in respect of khatas Nos. 17 and 15 would be governed by Section 171 and Birbal being a preferential heir under Section 171 was entitled to succeed. He accordingly upheld the claim of Birbal in respect of these two khatas. For the remaining khatas he found that Smt. Jallo purchased the proprietary interest and therefore there was a merger of tenancy and proprietary interest and she became absolute owner of these khatas prior to the date of vesting. The succession therefore in respect of these khatas was governed by Section 174 and the daughters, being preferential heirs, were entitled to succeed. The claim of Birbal was rejected in respect of these khatas. Writ Petition No. 1849 of 1973 has been filed by Birbal in respect of khatas of which the daughters have been held to be tenants whereas Writ Petition No. 6308 of 1973 has been filed by daughters against Birbal.
(2.) AS regards Writ Petition No. 6308 of 1973 it has been found by consolidation authorities that Tunda was Sirholder and on his death his interest was inherited, prior to the date of vesting, by Smt. Jallo and she held it as intermediary on the date of vesting. As according to personal law applicable to her she was only a limited owner and provisions of Section 172(1)(a) applied, the land on her death devolved on the heirs of last male tenant. The Deputy Director Consolidation and Settlement Officer Consolidation therefore did not commit any manifest error of law in upholding claim of Birbal and others. As regards remaining Khatas which are subject matter of Writ Petition 1949 of 1973 it is not disputed that interest in holding was inherited by Smt. Jallo as widow prior to the date of vesting. But it is urged that she having become co -proprietor along with others there was a merger of proprietary and tenancy interest. The effect of the merger, according to Learned Counsel for the opposite party and the appellate and revisional authority was that new rights accrued in Jallo's favour and the devolution shall take place under Section 174 and not Section 172. The argument proceeds on the assumption of merger. The question therefore is whether by becoming co -proprietor Smt. Jallo ceased to be tenant and the lesser rights of tenancy merged in the higher right of proprietor. The principle of merger would have applied if the entire proprietary interest would have been purchased. There could not be merger of a part. She therefore continued to be tenant. As she inherited interest in the holding as widow prior to the date of vesting and at the time of her death held the holding otherwise than an intermediary or tenant referred to in Sub -section (a) of Section 172(1) the provisions of Section 172(b) applied and the holding devolved on the heirs of last male tenant. She was therefore tenant of the Khatas in dispute on the date of vesting and she having inherited these Khatas as widow prior to the date of vesting the land devolved on Birbal.
(3.) IN the result Writ Petition No. 1949 of 1973 succeeds and is allowed. The order of the Deputy Director Consolidation and Settlement Officer Consolidation are quashed. Writ Petition No. 6308 of 1973 fails and is dismissed. The parties shall bear their own costs.;