Jagat
Singh Vs. Karan Singh & Ors [1987] INSC 80 (24 March 1987)
Thakkar,
M.P. (J) Thakkar, M.P. (J) Ray, B.C. (J)
CITATION:
1987 AIR 1279 1987 SCR (2) 616 1987 SCC (2) 349 JT 1987 (2) 31 1987 SCALE
(1)580
ACT:
Tehri Garhwal
Bhumi Sambandhi Adhikar Niyam: s.6(4)Benefit under--'Spinda' of the Original 'khaikar'
living with him as a member of his family--Whether entitled to become a
sub-tenant of the head tenant--Provision applicable to Hindus only.
HEAD NOTE:
Section
6(4) of the Tehri Garhwal Bhumi Sambandhi Adhikar Niyam provides that brother
or 'sapida' (brother, nephew etc.) of the deceased sub-tenant will be entitled
to be recognised as a 'khaikari' if he was jointly living with the deceased
during his life time in the manner of a member of a joint family.
The
appellant, a 'sapinda' of the original 'Khaikari' (sub-tenant) had started
living with the deceased from the age of 12 or 13 years as a member of the
latter's family. He has been sharing food and shelter with the deceased and was
engaged in cultivating the land along with the deceased during his lifetime. At
the time of the death of the later the obsequies were also performed by him.
The
trial court came to the conclusion that the appellant fulfilled the conditions
prescribed by s.6(4) of the Act and was thus entitled to become 'khaikari'
(sub-tenant) of the respondent head-tenant. The lower appellant court and the
High Court took the view that s.6(4) was applicable not only to Hindus but also
to Muslims and Christians, and, therefore, it was not sufficient for the
appellant to have shared the food and shelter and carried on the agricultural
operations with the deceased and that it must be shown that he was in fact a
member of the joint family.
Allowing
the appeal, the Court,
HELD:
The High Court was in error in holding that only a member of an undivided
family could claim the benefit of s.6(4) of the Tehri Garhwal Bhumi Sambandhi Adhikar
Nayam.
[620C-D]
Section 6(4) of the Act is designed to apply only to Hindus. The expression 'sapinda'
employed in that provision is peculiar to traditional 617 Hindu Law and it
would be altogether inapposite in the context of citizens of Muslim or
Christian faith. [619C] The expression "Jeevit Samay Men Abibhakt Kul Ki Reeti
Se Uske Shareek Raha Ho" used in s.6(4) clearly provides a clue to the
intention of the legislature to benefit such a 'sapinda' who had, lived with
the issueless 'khaikar' and shared with him food, shelter, laying as also joys
and sorrows along with him 'as if' he was a member of the joint family without
in fact being one. Even if a separate brother or newhew were to live with an
issueless tiller during his lifetime just as a member of the Undivided Hindu
Family would be expected to 40, the benefit of becoming a subtenant of the head
tenant is made available to him. [620A-C; 619G]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1403(N) of 1973.
From
the Judgment and Order dated 12.4.1973 of the Allahabad High Court in Second
Appeal No. 2866 of 1965.
S .N.
Singh and T.N. Singh for the Appellant.
Rameshwar
Nath and Ravinder Nath for the Respondents.
The
Judgment of the Court was delivered by, THAKKAR, J. The controversy in this
appeal centers around the interpretation of Section 6(4) of the Tehri Garhwal Buhmi
Sambandhi Adhikar Niyam, enacted by the erstwhile State of Tehri Garhwal which
continued to remain in force even after its merger in the State of Uttar
Pradesh.
The
trial court came to the conclusion that the petitioner was entitled to become
the 'kahikari' (subtenant) of the respondents who were 'maurusidars' (head
tenants) of the land in question by virtue by the said provision and decreed
the plaintiff's suit. The lower appellate court and the High Court took a
contrary view and dismissed the suit. The original plaintiff has preferred the
present appeal by special leave and has contended that the interpretation
placed by the trial court was the correct interpretation of the relevant
provision and that the Lower Appellate Court and the High Court were in error
in taking the contrary view.
618
The facts in so far as material are not in dispute. All the Courts have
concurred in the finding that the petitioner was a 'sapinda' of Jeet Ram, the
original 'khaikari' (subtenant) who died issueless. From the age of about 12 or
13 years the appellant had started living with deceased Jeet Ram. He was
sharing food and shelter with Jeet Ram and was engaged in cultivating the land
in question along with Jeet Ram during his life time. He had lived as a member
of Jeet Ram's family and at the time of the death of Jeet Ram the obsequies
were performed by him. Thereafter he was looking after the widow of Jeet Ram.
These
facts having been firmly established the trial court upheld the appellant's
right to become 'khaikari' (sub-tenant) of the respondents in respect of the
land in question in the context of the right conferred by Section 6(4) of the
Act. The said provision is in Hindi:
"MRIT
KHIAKAR KAR BHAI YA SAPINDA WARISH (BHAI, BHATEEJA AADI) KEWAL US DASHA MEN
ADHIKARI HOGA JOB KI WAH US MIRT KHAIKAR KE SATH JEEVIT SAMAY MEN ABIBHAKT KUL
KI REETI SE USKE SHAREEK RAHA HO." Translated in English, it reads as under:"Brother
or Sapinda (brother, newhew etc.) of the deceased sub-tenant will be entitled
if he was jointly living with the deceased during his life time in the manner
of a joint family." An analysis of the aforesaid provision reveals that in
order to establish the claim to be recognized as a 'khaikari' under the said
provision, one must establish that:
(1) He
is a 'sapinda' of the deceased subtenant such as the brother or nephew.
(2) He
must have been living as a member of the family with the deceased during his
lifetime in the manner of a member of the joint family.
The
Trial Court took the view that inasmuch as the petitioner was admittedly a sapinda
of deceased Jeet Ram and inasmuch as he had been living jointly with the
deceased during his life-time, had been 619 sharing of food and shelter with
him and had even performed the obsequies of Jeet Ram, he fulfilled the
conditions prescribed by the said provision and was entitled to become a
sub-tenant of the head tenant. The Lower Appellate Court and the High Court
have taken the view that it is not sufficient for the appellant to have shared
the food and shelter and carried on the agricultural operations with the
deceased. It must be shown that he was in fact a member of the joint family.
The High Court has made sought support from the reasoning that section 6(4) is
applicable not only to Hindus but also to Muslims and Christians. With respect
to the High Court this assumption is altogether unwarranted.
The
expression 'sapinda' employed in section 6(4) is a clear pointer to the
conclusion that the said section is designed to apply only to Hindus. The
expression 'sapinda' is peculiar to traditional Hindu Law and it would be
altogether inapposite in the context of citizens of Muslim or Christian faith.
Failure to realize this aspect impelled the High Court to take a view contrary
to the view taken by the trial court as is evident from the following passage:
"As
the provisions of section 6 (4) of the Tehri Garhwal Bhumi Sambandhi Adhikar Niyam
are applicable not only to Hindus but also to Muslims and Christians etc. who
may be living in Tehri Garhwal, the words "Joint Hindu Family" were
not used and instead the words "ABHI BHAKT KUL KEE REETI SE USKE SAATH
SHAREEK RAHA HO" were used. These words when applicable to a Hindu must
mean a person who was a member of a Joint Hindu Family of the deceased Khaikar
in this case Jeet Ram." It appears that the Lower Appellate Court and the
High Court altogether missed to grasp the intendment and purpose of the
provision. In the absence of such a provision an issueless tiller would
experience great hardship for there would be nobody to assist him in his work
in his lifetime, look after him in his old age, and to take care of his widow
after his death. That is why even if a separated brother or nephew were to live
with him during his life-time, share the food and shelter with him, and assist
him in cultivation, just as a member of the Undivided Hindu Family would be
expected to do, the benefit of becoming a sub-tenant is made available to him.
Otherwise there was no point in providing that unless a 'sapinda' lived with
him 'as if he was a member of the joint family' he would not be entitled to
such a right. In fact the provision has evidently been enacted with a view to
relieve the distress of an issueless agriculturist, who is separate from his
joint 620 family, so that any one of his sapindas living with him as a member of
the family, assisting him in agriculture, and looking after him, would be
entitled to become a 'khaikar' on his demise. The expression 'JEEVIT SAMAY, MEN
ABIBHAKT KUL KI REETI SE USKE SHAREEK RAHA HO' clearly provides a clue to the
intention of the legislature to benefit such a person who has lived with the
issueless khaikar and shared with him food, shelter, labour, as also joys and
sorrows along with him 'as if' he was a member of the joint family without in
fact being one. The prospect of acquiring such a right would provide motivation
to look after and render services to the issueless land holder for it would be
unreasonable to expect him to do so selflessly, the world being what it is.
We are
therefore of the opinion that the lower appellate court and the High Court have
entirely misunderstood the provision in holding that only a member of an
Undivided Family could claim the benefit of section 6(4). If such were the case
there was no need to make such an elaborate provision. It would have been sufficient
to say that a member of his joint family alone could claim such a right.
We are
satisfied that the trial court was right in upholding the claim of the
appellant whereas the lower appellate court and the High Court were in error in
taking a contrary view.
The
appeal is, therefore, allowed. The judgment and order of the lower appellate
court and the High Court are set aside. The judgment and decree passed by the
trial court are restored.
There
will be no order regarding costs.
P.S.S.
Appeal
allowed.
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