1. Vakalatnama filed by Sri Suresh Kumar Gupta, Advocate on behalf of the opposite party no.3 is taken on record.
2. Heard Sri R.V.Singh, learned counsel for the petitioner,learned Standing Counsel and Sri S.K.Gupta,learned counsel for the opposite party no.3.
3. This petition has been filed challenging the order dated 11.08.2021 passed by the opposite party no.1 in First Appeal No.1374(Computerized Case No.T2021106402013740); Anwari Begum versus Noor Ahmad and others and the order dated 08.02.2021 passed by the opposite party no.2 in Suit No.00668 of 2020 (Computerized Case No.T202010640200668).
4. Submission of learned counsel for the petitioner is that the petitioner is a married daughter of the deceased Chunnu, who was the recorded tenure holder. Therefore the petitioner is also entitled for succession in view of the judgment of the Hon'ble Supreme Court in the case of Babu Ram versus Santokh Singh(Deceased) through his LRs and others passed in Civil Appeal No.2553 of 2019, by means of which the preferential right has been given to the hindu married women under Section 22 of the Hindu Succession Act on the agricultural land also. He further submitted that the petitioner was already entitled for succession under the personal law also. Therefore the petitioner has preferential right under Section 108 of the U.P. Revenue Code also because the petitioner cannot be discriminated as the hindus have been given preferential right but not the muslim women. But without considering the same, the claim of the petitioner has been rejected and the appeal filed by the petitioner has also been dismissed. Therefore the petitioner is constrained to approach this court.
5. On the other hand, learned counsel for the opposite parties submitted that the arguments advanced by learned counsel for the petitioner are mis-conceived because the judgment of the Hon'ble Supreme Court is not applicable on the present case. He further submitted that the U.P.Revenue Code is applicable on the hindu as well as muslim women and the petitioner is in the third category being married women. Therefore she is not entitled for succession as legal heirs in the first category are available. The writ petition is misconceived and liable to be dismissed.
6. Having considered the submissions of learned counsel for the parties and on perusal of records, it appears that Chunnu was the recorded tenure holder of the land in dispute. His wife had died during his life time. The petitioner was married a long time ago. After death of the recorded tenure holder, the name of his sons, Noor Ahmad, Noor Mohammad, Noor Ali and Anwar Ali i.e. the opposite parties no.3 to 6 were recorded in the revenue records under Section 33(2) of the U.P. Revenue Code by means of the order dated 19.12.2018.
7. The petitioner filed a case under Section 34/35 of the U.P. Revenue Code, 2006 raising a dispute and claiming that the petitioner is also entitled for succession on the death of her father. The opposite party no.2 after considering the rival contentions of the parties dismissed the case recording that the petitioner is a married daughter who had married long time before the death of the recorded tenure holder and the land in dispute has been recorded in the name of his sons who are the legal successors. The U.P. Revenue Code 2006 is equally applicable on the Hindu and the Muslims which is admitted by learned counsel for the petitioner and as per Section 108, the petitioner is not entitled.
8. Section 108 provides general order of succession to male bhumidhar, asami or government lessee. The relevant for this case, Sub-section (1) provides, Subject to the provisions of section 107, where a bhumidhar, asami or government lessee, being a male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in sub-section (2) in accordance with the following principles, namely:- (i) the heirs specified in any one clause of sub-section (2) shall take simultaneously in equal shares; (ii) the heirs specified in any preceding clause of sub-section (2) shall take to the exclusion of all heirs specified in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b), those in clause (b) shall be preferred to those in clause (c) and so on, in succession. Sub section (2) of section 108 provides the order of succession, in which the male lineal descendants in the male line of descent per stirpes is provided in clause (a) and the married daughter is provided in clause (d). Therefore in view of Sub-section (ii) of Section 108(1) the heirs specified in clause (a) shall exclude the heirs provided in clause (d). Therefore the petitioner is not entitled as the heirs under clause (a) are available and have succeeded and the petitioner comes under clause (d).
9. It is not in dispute that the provisions of Section 108 of U.P. Revenue code are applicable equally on Hindus as well as Muslims. Only the devolution of management of a Hindu devasthan, math or debutter property or of a Muslim wakf comprising any holding, which shall continue to be governed by such personal or other law as may be applicable to it under Section 111 of the U.P. Revenue Code 2006. Therefore the submission of learned counsel for the petitioner regarding discrimination is misconceived and not tenable.
10. So far as the judgment of the Hon'ble Supreme Court in the case of Babu Ram versus Santokh Singh(Deceased)(supra) relied by learned counsel for the petitioner is concerned, the same is in regard to the preferential rights given in Section 22 of the Hindu Succession Act, 1956 and in the concluding paragraph the Hon'ble Supreme Court has held that the preferential right given to an heir of a Hindu under Section 22 of the act is applicable even if the property in question is an agricultural land. Therefore by the said judgment the Hon'ble Supreme Court has only extended the provisions of Section 22 to the agricultural land also.
11. Section 22 of the Hindu Succession Act 1956 provides preferential right to acquire properties in certain cases. Section 22 is extracted below:-
"22. Preferential right to acquire property in certain cases.?
(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.?In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."
12. In view of above Section 22 provides that an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. Therefore the preferential right is given to other heirs in case of transfer by one or more of the legal heirs of the deceased. The Hon'ble Supreme Court has also upheld the provisions of section 22. The petitioner is claiming succession not preferential right on account of transfer of any portion of land by one of the co-shares. Therefore the contention of learned counsel for the petitioner is misconceived and misplaced. The courts below, after considering the relevant provisions and rival contentions, have held that the petitioner is not entitled for succession as the legal heirs i.e. sons of the deceased are available and the petitioner cannot succeed because the sons of the deceased are under clause (a) and the petitioner is under clause (d).
13. In view of above, this Court is of the view that there is no illegality or error in the impugned orders passed by the courts below. The petition is misconceived and lacks merit.
14. The petition is, accordingly, dismissed. No order as to costs.
.
.............................................(Rajnish Kumar,J.) Order Date :- 24.8.2021/Akanksha