Rudra Pratap and Another vs Board of Revenue, U.P. and Others

R.L. Gulati, J.—One Smt. Kalpa was the widow of Ram Himachal, who had died during the lifetime of his father Bhagwan Din. After the death of Bhagwan Din in the year 1946, Smt. Kalpa inherited her proprietary share as the widow of the pre-deceased son, Ram Himachal. After coming into force of the U.P. Zamindari Abolition and Land Reforms Act, Smt. Kalpa came to be recorded as co-bhumidhar of the disputed khata along with other coparceners. After her death the petitioners, Rudra Pratap and Uma Shanker, applied for mutation in their favour. Rudra Pratap Is the brother of Ram Himachal and Uma Shanker is the son of Ram Pratap, another son of Bhagwan Din. The third respondent, Smt. Suraj Mukhi, who is the daughter of Kalpa, also applied for mutation in her favour. The Tehsildar and the Assistant Collector, Akbarpur, held that the provisions of the Hindu Succession Act, 1956, do not apply to tenancy land as provided in Section 4(2) pf that Act. In his opinion the Succession would be governed by Section 172 (2) of that Act under which alone a daughter of a widow is an heir. He accordingly upheld the claim of the petitioners and rejected that of the third respondent. The third respondent then went up in revision before the Additional Collector, Faizabad, who referred the case to the Board of Revenue with a recommendation to set aside the order of the Tehsildar and the Assistant Collector, Akbarpur, and order mutation in favour of the third respondent. The reference was heard by Sri H. C. Gupta, Chairman of the Board of Revenue, who by his order dated 28th October. 1969, accepted the recommendation of the Additional Collector and ordered mutation in the name of the third respondent. Mr. Gupta held that Section 14 of the Succession Act, 1956 was applicable and therefore the third respondent was entitled to the land in dispute u/s 174 of the U.P. Zamindari Abolition and Land Reforms Act. This order of the Board of Revenue has been challenged in this petition under Article 226 of the Constitution.

This Court in Smt. Prema Devi Vs. Joint Director of Consolidation (Head quarter) at Gorakhpur Camp and Others, has held that the provisions of the Hindu Succession Act do not apply to agricultural land. Thus the view taken by the Board of Revenue is manifestly erroneous. The learned counsel for the opposite party does not contest this proposition, but he contends that this Court should not interfere with the order of the Board of Revenue under Article 226 of the Constitution. In support of this contention he has placed reliance upon a decision of this Court in Jaipal Vs. Board of Revenue and Others, . In that case no doubt it was held that mutation proceedings ordinarily relate to the question of possession and do not decide the question of title for which there is a separate remedy by way of a suit and as such the High Court should not interfere in the order passed in mutation proceedings. But it was also observed in that case that this consideration should not be applied in cases where the question of title is also decided in mutation proceedings. In my opinion the present case belongs to that category of cases inasmuch as the Board of Revenue has proceeded to decide the question of title. The Board of Revenue has not ordered mutation in favour of the third respondent merely on the basis of her possession, but it has ordered mutation in her favour on the ground that she is entitled to succeed to the land in dispute whereas the petitioners are not so entitled. This finding even if not conclusive, does throw a shadow on the clear title of the petitioners. The petitioners, in my opinion, are entitled to seek the assistance of this Court to remove that shadow and it is not necessary to drive them to the remedy of a suit.

For the reasons stated above, the petition is allowed, the order of Board of Revenue dated 28-10-1969 (Annexure ''3'' to the writ petition) is quashed. The petitioners are entitled to their costs.