Lachhman
Singh Vs. Versus Raja Ram Singh & Ors [1999] INSC 104 (30 March 1999)
S.R.Babu,
S.Saghir Ahmad RAJENDRA BABU, J. :
This
appeal is directed against an order made by the High Court in a proceeding
arising out of two suits filed under Section 209 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) - one
suit for claiming damages amounting to Rs. 25000/- and another under Section
176 of the Act claiming 1/3rd share in the land in dispute. The properties in
dispute were held to be bhumidhari lands and pertained to one Arjun Singh, who
had no male issue. Arjun Singh executed a Will which was registered on June 17, 1952. As per the said Will, after his
death the land devolved upon his wife, Raj Kumari, and she held the said land
till her death on April
1, 1968. The
plaintiffs in the suit claiming to be the sisters sons of Arjun Singh claimed
that they should get 1/3rd share in the suit lands. The Trial Court, after
recording the evidence and hearing the parties, dismissed the suit filed under
Section 176 of the Act.
Against
that order an appeal was preferred before the Additional Commissioner, Lucknow
Division, who held that the Will did not include bhumidhari rights and after
the death of Raj Kumari, the widow of Arjun Singh, who got the property in her
own right as heir of Arjun Singh, the succession will not be governed by the
Will but by the provisions of Section 171 of the Act. Against that order of the
Additional Commissioner the plaintiffs in the suit preferred two appeals to the
Board of Revenue, U.P.. The Board of Revenue upheld the order of the Additional
Commissioner and the appeals stood dismissed. Thereafter a writ petition was
preferred in the High Court by the defendants in the suit. The High Court
noticed that the plaintiffs allegations were that the plaintiffs were sons of
sister of Arjun Singh and became successors after the death of Raj Kumari, the
widow of Arjun Singh, whereas the defendants contended that under the
registered Will Arjun Singh vested all his movable and immovable properties in favour
of his wife for her life time and after her death to his daughter, Smt. Bittaram
for her life time and on their death the land had devolved upon them as khandani
waris. As contended on behalf of the plaintiffs that the Will had been executed
prior to the commencement of the Act and sir or khud kasht land is not
transferable under Section 9 of the U.P. Tenancy Act and, therefore, the
defendants got no ownership on the basis of the Will. The High Court concluded
that the rights arising out under Section 9 of the U.P. Tenancy Act will not
bar exchange and gift and that there can be no transfer of the land as the word
Will is ordinarily understood and, therefore, it could not be covered under the
definition of the term transfer and the Will was only a mode of devolution and
did not amount to transfer. At the time his of death of Arjun Singh was a bhumidhar
of the lands in question and, therefore, under the Will all the movable and
immovable properties that is haqiuat Zamindari and residential house, kachha
and gonda kachha were disposed of with the entire property belonging to Arjun
Singh and it must be construed that it would include the property or right of bhumidhari
in the land in question and, therefore, the High Court held that the Board had
erred in confirming the order made by the Additional Commissioner and allowed
the petition quashing the order made by the Board of Revenue. It is against
that order this appeal has been filed by special leave. The learned counsel on
either side contended that the question for our consideration in this appeal is
the interpretation to be placed upon the Will executed by Arjun Singh and
whether under the said Will the bhumidhari rights have been disposed of in terms
of Section 169 of the Act and, if that is so, the appellants or the respondents
constitute the waris khandan of the said Arjun Singh. Decisions of this Court
in Rana Sheo Ambar Singh v. Allahabad Bank Ltd, Allahabad, 1962 (2) SCR 441; Shri Ram Prakash v. Mohammad Ali Khan
(dead) thr. L.Rs., 1973 (2) SCC 163; Sri Vidya Sagar v. Smt. Sudesh Kumari
& Ors.; 1976 (1) SCC 115, and Jamshed Jahan Begam & Ors. v. Lakhan Lal
& Ors., 1970 (2) SCR 566, were brought to our notice explaining the nature
of rights arising out of Section 18 of the Act. It was again pointed out that
what is disposed of by the Will is not the Zamindari rights but the entire
property of Arjun Singh which would include bhumidhari right. It has also been
brought to our notice that Section 90 of the Indian Succession Act should also
be adopted in considering the Act. The contention on behalf of the appellants
is that though the Will had been executed it is only in respect of Zamindari haq
which stood extinguished on the commencement of the Act and, therefore, the
Will could not affect the rights arising out under the Act and, therefore, the
view taken by the Additional Commissioner and the Board of Revenue stands to
reason in preference to that of the High Court. In construing a Will the principle
enunciated in Section 90 of the Indian Succession Act is relevant. Where a
property is bequeathed in generic and may increase, diminish or otherwise
change during the testators life so that the description may from time to time
apply to different amounts of property of like nature or to different subjects,
then the effect of the section is that the property answering the description
at the death of the testator passes under the Will unless contrary intention is
shown. Will became operative only on the death of Arjun Singh in 1958.
Therefore, on that date, whether the Will could have been executed by Arjun
Singh and what right could flow therefrom has to be seen. It is not in dispute
that under Section 18 of the Act Arjun Singh became bhumidhar of the lands in
question. A bhumidhar is enabled under Section 169 of the Act to make a Will
and bequeath his holding or any part thereof and general order of succession
provided under Section 171 is subject to Section 169 of the Act. The Will
executed by Arjun Singh, as far as the portion relevant for our purpose is
concerned, reads as follows :- After my death however my all properties whether
movable or immovable i.e. Haquait Zamindari and a residential house Kaccha and
a Gonda Kacha will devolve on my wife Mrs. Raj Kumari d/o Gajaidhar Singh, Thakur,
resident of Baderi mentioned above who would enjoy its ownership under the
provisions of the will, and after her death my above daughter Mrs. Bitto
resident of above Badera will enjoy ownership rights over the properties of the
will throughout her life, after the death my family heirs will succeed to the
properties under the will. [emphasis supplied by us] The intention of the
testator is very clear that he wanted to bequeath to his wife all properties
whether movable or immovable which included at the time of execution of the
Will Haquait Zamindari and a residential house Kaccha and a Gonda Kacha for her
life time and thereafter to his daughter for her life time and subsequently to
the heirs who will succeed to the properties under the Will. Therefore, a
reading of the Will makes it clear that when the testator made the Will he did
dispose of all his properties whatever be the nature of the same and thus bhumidhari
rights in respect of the lands in question were also covered by the same
applying the principle underlying Section 90 of the Indian Succession Act to
which we have adverted to, and there is no contrary intention expressed. The
next question that arises for consideration is what is the meaning to be
attributed to the expression waris khandan in the Will? Neither of the parties
have placed any foundation on the said expression by way of pleadings much less
evidence before the original authority or the appellate authorities or in the
writ petition in this regard. Therefore, we are handicapped to decide this
question of fact. In these circumstances, while upholding the order made by the
High Court, we modify it to the extent of stating that the properties could now
devolve on the death of daughter of the testator upon the waris khandan under
the Will. It will now be the task of the Assistant Collector to identify the waris
khandan and whether the appellants or the respondents or both of them are
covered in this expression or otherwise.
This
appeal stands disposed of accordingly. In the circumstances of the case, we
make no order as to costs.
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