Kumari Asha Devi and Others vs State and Others

R.M. Sahai, J.—In proceedings u/s 10(2) of U.P. Imposition of Ceiling on Land Holdings Act initiated in 1976 against Smt. Adhari, O. P. No. 4 (hereinafter referred to as opposite party since deceased) and Smt. Sundari, mother of Petitioners 1 and 2, the two widows of one Badri Singh who died sometime in 1969-70, the notice was discharged on 30th January, 1975 as after excluding certain land transferred prior to 1971 and giving benefit on certain other counts each was held not to possess any surplus land. No sooner had these proceedings come to an end and order was affirmed in appeal, Sundari died giving rise to fresh notice u/s 10 (2) read with Section 29 of the Act to opposite party for redetermination of surplus area as the share of Sundari, her co-widow, having devolved on her she was now possessed of land which far exceeded the ceiling area. To contest it two objections were filed, one by opposite party and the other by Petitioners, unmarried daughters of Sundari, mainly basing their claim on will executed by Badri Singh stipulating devolution of land on un-married daughters in event of death of any of the widows. It did not cut any ice rather the appellate authority held the will to be fictitious, a finding which could not be and has not been seriously challenged.

Even ignoring the will the proposed statement of surplus land in C.L.H. statement can be upheld only if the share of Sundari can be held to have devolved on Smt. Adhari. For this it is necessary to look into the provisions relating to succession contained in Sections 171 to 175 of UP ZA & LR Act (Act 1 of 1951). The general order of succession is governed by Section 171. It lays down in devolution of the interest of a Bhumidhar, Sirdar, or Asami in his holdings :

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Sections 171 and 172 lays down the manner of devolution of land inherit ed by a female after and before the date of vesting. Sub-section (1) provides that if a widow who after the date of vesting inherited an interest in any holding as a widow dies her interest in any holding,

shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male Bhumidhar, Sirdar or Asami.

To this extent there appears to be no difficulty but does this provision apply even where there were more than one widows, as Section 175 provides,

In the case of co-widows, or co-tenure-holders who dies leaving no heir, entitled to succeed under the provisions of this Act, the interest in such holding shall pass by survivorship.

The applicability of this provision couched in general and wide words is, however, conditioned by the use of words '' leaving no heir entitled to succeed." That means if one of the co-widows is survived by personal heirs, such heirs being mentioned in Section 174 of the Act, then the rule of survivorship does not apply. But then the property shall devolve on whom the personal heirs or heirs of last male tenant. The section is silent. It can and has been legitimately argued that devolution of widow who inherited an interest after date of vesting is governed either by Section 172 or 175. If Section 175 does not apply then the devolution takes place u/s 172 read with Section 171 on heirs of last male tenant. Normally there would have been no difficulty in accepting this argument. But if Section 172 is applied then the property again devolves on co-widow, she being nearer than other heirs of last male tenant mentioned in Section 171. In effect the property devolves on co-widow in either case, in one by survivorship and other by inheritance. This could not have been the intention of legislature because devolution on co-widow is ruled out if the deceased widow is survived by her personal heir. The intention obviously was to benefit heirs of the widow entitled to succeed under provisions of the Act, in preference to co-widow. This no doubt results in anomaly as in case of one widow the property devolves on last male tenant but in case of more than one it may devolve on personal heirs of the deceased widow. But this is because of the expression, leaving no heir entitled to inherit under provisions of this Act used in Section 175. It is true that Section 172 on its own does not rule out its applicability to more than one widow. But there being specific provisions for co-widows in Section 175 it is this provision which has to be looked into. And as seen above, it does not apply when the deceased widow is survived by her personal heirs. By that it cannot be held that Section 172 applies. Consequently Section 172 does not apply because of Section 175 and Section 175 does not apply because the deceased co-widow is survived by an heir entitled to succeed under provisions of this Act. Then the question is devolution in such a case shall be governed by which provision.

These anomalies have frustrated any satisfactory situation. The only way out appears to be to apply Section 174 which is residuary provision in respect of devolution of holding held by a female to whom Section 172 does not apply. It avoids any unfortunate result and perpetrates the legislature''s intention discerned from the expression used in Section 174. Therefore, it has to be held that Section 172 applies to a case of one widow, Section 175 to co-widows and Section 174 where one of the co-widow dies leaving an heir entitled to succeed under the provision of the Act.

Interpreted In this manner the share of Smt. Sundari devolved on Petitioner u/s 174 and not on her co-widow. The notice u/s 10(2) read with Section 29 for re-determination of surplus land was, therefore, misconceived.

In the result, this petition succeeds and is allowed. The order passed by the Additional District Judge and Prescribed Authority is quashed. The notice issued for determination of the surplus land is also quashed.