Heard Sri M.C. Singh, learned counsel for the petitioner and the learned Standing Counsel for the State.
This petition questions the legality and validity of the orders passed by the Prescribed Authority and affirmance thereof in appeal by the respondent no. 1 in proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. An area of 7 bighas, 10 biswas and 11 biswansis has been declared surplus in the hands of the petitioner-tenure holder treating it to be in excess of the maximum limit permissible under the 1960 Act.
The petitioner Shiv Charan Singh died during the pendency of the writ petition and is now substituted by his heirs.
The background of the case is that the holding in question is ancestral and was also recorded as Sir Khudkasht. Sir Khudkasht is land brought under the personal cultivation of the ex-zamindar and continued as such on the date when Zamindari was abolished on the promulgation of the U.P. Zamindari Abolition & Land Reforms Act, 1950. The fact that it was Sir Khudkasht land is undisputed.
Baljeet Singh was the zamindar and also the tenure holder of the said land that was cultivated as Sir Khudkasht and he was succeeded to the said holding by his two sons, namely, Shiv Charan Singh (deceased petitioner), and his brother Khushal Singh. The two brothers stood recorded as tenure holders in their independent rights. Khushal Singh was issue-less and he died leaving behind his widow Smt. Ishwari Devi who succeeded to his half share of the holdings and her name was accordingly recorded in the revenue records.
There is no dispute that Shiv Charan Singh and Khushal Singh in their independent capacity or even Ishwari Devi had no land surplus as defined under the Ceiling Act.
The dispute appears to have commenced after the death of Ishwari Devi who is said to have executed an unregistered will on 5th August, 1986 and by virtue of the terms of the will the land covered thereunder was succeeded to by the beneficiaries therein, which also included the sons of the deceased petitioner Shiv Charan Singh.
Upon the death of Smt. Ishwari Devi, the beneficiaries under the will applied for mutation and having not succeeded before the Mutating Authority, filed an appeal before the Appellate Authority under the U.P. Land Revenue Act, 1901. In appeal the Sub Divisional Magistrate vide order dated 30.11.1987 allowed the claim of the beneficiaries under the will and their names were directed to be mutated in place of Smt. Ishwari Devi.
The Ceiling Authorities, however, after the death of Smt. Ishwari Devi presumed that her holding reverted back to Shiv Charan Singh who under the normal rule of succession and inheritance under Section 171 readwith Section 172 of the 1950 Act became the tenure holder, and accordingly clubbed the land of Smt. Ishwari Devi with that of Shiv Charan Singh to calculate the ceiling area and issued notices to Shiv Charan Singh under Section 10(2) of the 1960 Act.
Shiv Charan Singh filed objections that the land which was sought to be clubbed with his holding and that was recorded in the name of Smt. Ishwari Devi, is an erroneous approach as he has not succeeded to the same, and the holding has devolved on the beneficiaries under the will in whose favour the order of mutation has already been passed.
Separate objections were filed by the beneficiaries under the will and also by the sons of Shiv Charan Singh on a separate ground, namely, that the sons of Shiv Charan Singh were born prior to the abolition of zamindari under the 1950 Act, and therefore, they had an independent share in their own right in the holding that had passed on from Baljeet Singh as per the then existing personal law of succession. They contended that prior to the abolition of zamindari, succession was governed according to the coparcenary rights of the members of the Joint Hindu Family and that the sons of Shiv Charan Singh who were born on 12th July, 1931 and 26th August, 1942 respectively were entitled to separate shares and were already holding the same by virtue of such succession. It was also contended in the objection that such a right stood transformed into independent bhumidhari rights of the sons of Shiv Charan Singh as per the provisions of Section 18 of the U.P. Z.A. & L.R. Act, 1950. It was therefore contended that on this count as well the Prescribed Authority and the Appellate Authority have failed to exclude the said shares from the holding of Shiv Charan Singh and Ishwari Devi.
There were other issues also raised but primarily the Prescribed Authority and the Appellate Authority after rejecting the said submissions raised on behalf of the petitioner and the other objectors declared the land to be surplus in the hands of Shiv Charan Singh.
Aggrieved, an appeal was preferred, which has also been dismissed reiterating the findings of the Prescribed Authority vide judgment dated 12.1.1995, hence, this petition.
The Court granted an interim order on 15.5.1995 whereafter the State filed a counter affidavit to which a rejoinder has also been filed. The State was also called upon to file a reply to the supplementary affidavit filed on behalf of the petitioners to which a supplementary counter affidavit is said to have been filed by the State. I have heard learned counsel for the parties and have perused the records.
Sri M.C. Singh learned counsel for the petitioner submits that the will executed by Smt. Ishwari Devi was proved to the hilt and the conclusion drawn by the Prescribed Authority that no evidence was adduced in terms of the Evidence Act proving the same is perverse as it ignores the statement of the attesting witness including that of one Mool Chand. He further submits that the will was never challenged by any person and merely because the will is unregistered, the same cannot be discarded. He submits that Section 169 of the U.P. Z.A. & L.R. Act, 1950 empowers a tenure holder to bequeath his or her holding through a will and the registration thereof was not compulsory prior to 2004. In the circumstances, in the absence of any material to the contrary the conclusion drawn by the Prescribed Authority that the will had been set up to avoid ceiling proceedings is erroneous.
He further submits that the finding that no attempt was made to get the mutation carried out before the Tehsildar who is the authority under Section 34 of the U.P. Land Revenue Act, 1901 is also an erroneous finding ignoring the order already passed by the Sub Divisional Magistrate on 30.11.1987. He submits that merely because the order of mutation was not incorporated in the revenue record, the same cannot be a circumstance to disbelieve the will. He further contends that the order of the Sub Divisional Magistrate dated 30.11.1987 copy whereof has been filed as an annexure to the petition fortifies the stand of the petitioner even though in a summary proceeding, that the will had been proved.
On the issue of the sons of Shiv Charan Singh having succeeded to the holding by virtue of Section 18 of the U.P. Z.A. & L.R. Act, 1950, Sri Singh submits that the fact of Shiv Charan Singh' sons having been born prior to the abolition of zamindari has not been disputed at any stage of the proceeding by the State. Once this fact is admitted then they did succeed to the holding which was Sir Khudkasht as on the date of the vesting of zamindari.
The finding of the Prescribed Authority that they did not get their names mutated independently would not be detrimental and cannot be an adverse circumstance to deny them their independent title over the land to the extent of their share. He further contends that even if subsequent settlement proceedings have been carried out under the U.P. Consolidation of Holdings Act, 1953, and the co-tenants have failed to get their names recorded, then such an omission cannot take away their rights which they are asserting before the State. The submission therefore in short is that their independent right in the holding also did exist and there was no bar operating against them as concluded by the Prescribed Authority in terms of Section 49 of the U.P. Consolidation Holdings Act, 1953 in the ceiling proceedings. The Appellate Authority according to him also misdirected itself by recording that the bar of Section 49 of the U.P. Consolidation of Holdings Act will be attracted as the sons had failed to get their names recorded for a long time.
He has further invited the attention of the Court to the documents, namely, the statement of the beneficiary under the will and the attesting witness which was recorded before the Prescribed Authority in Case No. 208 of 1988, State Vs. Shiv Charan Singh under the Ceiling Act. He submits that the said statement clearly proves the execution of the will and its attestation, as such the will had been proved through cogent evidence in terms of Section 68 of the Indian Evidence Act. He submits that the fact that the said statements were recorded before the Prescribed Authority has not been controverted before this Court and in view of this the findings recorded by the authorities below that there was no evidence to prove the will led by the petitioner is perverse. Accordingly, he contends that the impugned orders deserve to be quashed. The rejoinder to the counter affidavit has already been filed and is on record.
Coming to the question of the execution of the will by Ishwari Devi, it is undisputed that the will was unregistered. According to the provisions of Section 169 of the U.P. Z.A. & L.R. Act, 1950 no registration was required for a will bequeathing tenancy rights till the year 2004 when an amendment was brought about making such a will to be compulsorily registrable. The will is admittedly of the year 1986 and therefore merely because it was unregistered will not take away the effect of the instrument unless it is established that the same was not proved. The contention of the State therefore that the will was unregistered and the finding of the authority discarding it on this ground cannot be sustained.
So far as proving the will is concerned, according to the records available before this Court and which remains virtually uncontroverted indicates that the beneficiary under the will Rajendra Singh gave his statement indicating the circumstance of the execution of the will and one of the attesting witnesses Mool Chand son of Chandrasen had deposed before the Prescribed Authority that the will had been executed and that the thumb impressions had been affixed by the testator in the presence of 4 to 5 persons. The statement also indicates the contents of the will having been read to the testator whereafter she put her thumb impression. The Prescribed Authority and the Appellate Authority have totally overlooked the said statement of the attesting witness and one of the beneficiaries and as such they have arrived at a totally perverse finding that the will was not proved. In the opinion of the Court the will had been proved in terms of Section 68 of the Act before the Prescribed Authority by leading evidence in support of the said will.
Not only this even assuming that the mutation order was a summary nature of order yet the same dated 30.11.1987 also records the will having been proved on the basis whereof the mutation order was directed. In the circumstances the conclusion drawn by the authorities about the will is perverse and is unsustainable. The will in the opinion of the Court was genuinely proved not only before the Sub Divisional Magistrate who is the mutating authority but also before the Prescribed Authority by leading evidence and producing the attesting witness. The statement of the Lekhpal on behalf of the State was no proof of the non-execution of the will, once the attesting witness had been produced and he had made a statement about the execution of the document. The Prescribed Authority, therefore, committed a manifest error by disbelieving the will against the weight of evidence on record and contrary to the law referred to hereinabove. In the circumstances, the land of Smt. Ishwari Devi devolved under the will on the beneficiaries and the same could not have been included in the holding of Shiv Charan Singh. The notice, therefore, issued to Shiv Charan Singh proceeded on an erroneous premise and therefore the orders impugned deserve to be set aside.
The issue relating to succession by the sons of Shiv Charan Singh and their share in the land also has to be accepted. The bar of Section 49 is not attracted at all, inasmuch as, these are proceedings under the Ceiling Act and not under the Consolidation of Holdings Act, 1953. Nonetheless, even otherwise the claimants are not precluded from setting up such a claim on the inference of the bar as contained in Section 49 of the U.P. Consolidation of Holdings Act, 1953 in view of the Division Bench judgment in the case of Shri Ram & others Vs. Deputy Director of Consolidation, Allahabad Camp, Fatehpur & others, 2011 (112) RD Pg. 734 (Paragraph 7, Paragraphs 48 to 59).
The findings of the authorities below are erroneous as they have been unable to appreciate the nature of the tenancy, the status of the claimant tenure holder even though unrecorded, and the right of inheritance having accrued prior to the abolition of Zamindari and its consequences under the U.P. Z.A. & L.R. Act, 1950. This therefore requires a reiteration of the settled law.
It is undisputed in the present case that the sons/grandsons (being sons of a predeceased son who were born prior to abolition of Zamindari) of the petitioner have claimed rights as independent tenure holders in the holding on the ground that their share, which is acquired by them under law, cannot be included in the holding their father. The claim is supported in law by the pronouncement of a division bench of this Court in the case of Ram Chander & another Vs. Commissioner & Director of Consolidation, Meerut and others, 1969 AWR Pg. 686. The reason is that the fact of the sons being born prior to abolition of Zamindari and their date of birth remains undisputed. The division bench further rules that an omission to record the names of the sons alongwith their father does not deprive them of their title over the land which exists by operation of Section 18 of the U.P. Z.A. & L.R. Act, 1950. It is also undisputed that the land is ancestral Sir Khudkasht acquired by a common ancestor from whom inheritance is claimed.
The parties may not have been at variance during consolidation operations and not having got their shares separated or mutated in records does not take away their right to assert the same so long as their title has not extinguished. As explained above their title survived and did not evaporate merely because the entries were not corrected which aspect is also covered by the bench decision in the case of Ram Chander (supra) referred to hereinabove. The sons in their own independent right continued as tenure holders and the assertion of such rights by them is not barred by applying Section 49 of the U.P. Consolidation of Holdings Act, 1953 as explained in the bench decision of Shri Ram (supra). As a matter of fact the reasoning of the authorities is misconceived while applying Section 49 of the 1953 Act inasmuch as the proceedings under the Ceiling Act are not to determine such title that is governed by a separate procedure under the U.P. Z.A. & L.R. Act, 1950 or the U.P. C.H. Act, 1953.
For the foregoing reasons and in view of the discussion made hereinabove, the orders impugned dated 31.8.1994 and 12.1.1995 are quashed.
The writ petition is allowed.
Dated: 10.7.2012 Sahu