Gaya Din & Ors Vs. Hanuman Prasad
& Ors [2000] INSC 585 (27 November 2000)
S.S.M.Quadri,
S.N.Phukan SYED SHAH MOHAMMED QUADRI, J.
This
appeal, by special leave, is from the judgment and order of the High Court of
judicature at Allahabad in Writ Petition No.1685 of 1975
dated October 20, 1989. The lis has its origin in the
objections filed by the successors of Sheetal Prasad, the respondents, under
the U.P.
Consolidation
of Holdings Act, 1953 (for short, the Consolidation Act) at the time of Partal
against the successors of Bala Prasad and Sadhau, the appellants, who were
recorded as Khatedars of khatas in dispute. They are Khata Nos. 2,11,21,23
which, comprise of bhumidhari lands, khata Nos. 28,39 which consist of sirdari
lands of village Akathi and khata No.8 which is a bhumidhari land of village Chainpur.
To appreciate the scope of the controversy and the facts giving rise to it, it
would be helpful to notice the genealogy of the family of the parties :
PEDIGREE Matai Manni Gokul (died issueless) Bala Pd. Sadhau Sheetal Pd. Parmeshwar
Chandrika =Smt.Sheoraja (died (died issueless) issueless) Gayadin Brindaban Mathura
Gaya Hanuman Bhikhari A1 A2 A4 A5 R1 =Smt.Sukhdei R2 =Smt.Sheo Devi A3 Jagannath
R3 [A represents appellant and R represents respondent] In the objections filed
by them, the respondents claimed that they and the appellants are the members
of Joint Hindu family and that the entries in the names of appellants are in
representative capacity for all the members of the joint family and, therefore,
their names should also be recorded as the co-sharers along with the names of
the appellants. This claim was contested by the appellants denying existence of
joint family and asserting that they are holding the khatas in their individual
capacity. On considering the evidence adduced by the parties the Consolidation
Officer held that all the khatas did not belong to a common ancestor and that
it was not shown that they were acquired for the whole family from the joint
family funds by the head of the family so he dismissed the objections on December 23, 1969. The respondents herein carried the
matter in appeal before the Settlement Officer Consolidation. On June 4, 1970, he allowed the appeal and set
aside the said order of the Consolidation Officer. But the Deputy Director of
Consolidation allowed the revision filed by the appellants and remanded the
case to the Settlement Officer Consolidation on July 6, 1971. By order dated September 22, 1973, the Settlement Officer held that
the khatas in question were joint Hindu family property and all the parties
were co-sharers who were entitled to 1/6th share each. The appellants again
carried the matter in revision before the Deputy Director of Consolidation who
set aside the order of the Settlement Officer holding that the khatas in
question are held by the appellants individually and allowed the revision on April 7, 1975. The respondents assailed the
validity of that order before the High Court in the writ petition. By the
impugned order the High Court quashed the said order of the Deputy Director of
Consolidation dated April 7, 1975 and restored the order of the Settlement
Officer Consolidation dated September 22, 1973. The appellants are thus before
us in appeal.
Mr.V.K.S.Choudhary,
learned senior counsel for the appellants, argued that the High Court ought not
to have interfered with the order of the Deputy Director of Consolidation under
Article 226 of the Constitution and that in any event the tenancy rights were
inherited not in accordance with the personal law of the parties but in
accordance with the provisions of the U.P. Tenancy Act, 1939. According to Mr.Choudhary,
the Joint Hindu family could not have held the tenancy rights even if the lands
were that of Manni, the common ancestor, and on his death the sons would have
become co-tenants. He contended that under Sections 3-B and 3-C of the United
Provinces Agricultural Tenants [Acquisition of Privileges] Act, 1953 (for
short, the Acquisition Act) unless an unrecorded co- tenant got a declaration,
he could not claim to be a co- tenant (See: Section 7-A). The respondents not
having obtained such a declaration, are not entitled to be recorded as sharers
in the khatas. Mr.Anil Kumar Gupta, learned counsel for the respondents,
submitted that the contentions now raised under the Acquisition Act were not
urged before any of the Authorities or the High Court so these contentions
could not be raised for the first time before this Court; that the only
question which was under the consideration of the Authorities as well as the
High Court was whether the parties were members of the Joint Hindu family and
the khatas in question were held for their benefit, which was answered in favour
of the respondents by the High Court. A perusal of the impugned order of the
High Court as well as the orders of the Authorities under the Consolidation Act,
shows that the appellants did not urge at any earlier stage, the contentions
now raised before us under Sections 3B and 3C of the Acquisition Act,
therefore, we are not inclined to deal with the said contentions. The only
point which remains to be considered is the controversy which was raised and
decided by all the Authorities as well as by the High Court and that is :
whether the parties are members of joint Hindu family and the khatas in question
are held for all the members of the joint Hindu family. Now, we shall advert to
the contentions of the appellants that the High Court ought not to have
interfered with the findings of facts recorded by the Deputy Director of
Consolidation whose powers under the amended provision of Section 48 of the
Consolidation Act are wide enough to upset or reverse the findings of facts
recorded by the Settlement Officer Consolidation. The High Court, it was
argued, erred in quashing the order of the Deputy Director on the ground that
he unjustifiably interfered with order of the Settlement Officer Consolidation
when there was no error apparent on the face of the record. The learned counsel
for the respondents has submitted that the powers of the revisional authority
-- the Deputy Director -- under amended Section 48 are wider than the unamended
Section 48 which was analogous to Section 115 C.P.C.; but even so the powers
cannot be equated to the powers of the Court of appeal so interference with the
order of the Settlement Officer Consolidation by the Deputy Director on
re-appreciating the evidence, was illegal and was rightly quashed by the High
Court. There can be no doubt that under amended Section 48 of the Consolidation
Act, the revisional power of the Director of Consolidation is not confined to
errors of jurisdiction as was the position under the unamended provision. The
power of the revisional authority now extends to satisfying himself as to the
regularity, correctness, legality or propriety of any order other than an
interlocutory order.
It is
well-settled that conceptually the powers of a revisional authority, even if
couched in wide language, cannot be equated with the powers of an appellate
authority.
The
scope of the powers of the Deputy Director under the amended provision came up
for consideration of this Court in Ors. [1994 Supp. (2) SCC 198]. It was
observed that in considering the correctness, legality or propriety of the
order or correctness of the proceedings or regularity under Section 48 of the
Consolidation Act, the Deputy Director of Consolidation could not assume the
jurisdiction of the original authority as a fact-finding authority by
appreciating for himself of those facts de novo; he had to consider whether the
legally admissible evidence had been considered by the authorities in recording
a finding of fact or law or the conclusion reached by them was based on
evidence or any patent illegality or impropriety had been committed or there
was any procedural irregularity, which would go to the root of the matter. That
judgment was relied on in a recent judgment of this Court in Seshmani and U.P.
and Ors. [2000 (2) SCC 523]. It is true in Sheo Nand and Ors. [AIR 2000 SC
1141], this Court observed :
Section
48 of the Consolidation Act gives very wide powers to the Deputy Director. It
enables him either suo motu on his own motion or on the application of any
person to consider the propriety, legality, regularity and correctness of all
the proceedings held under the Act and to pass appropriate orders. These powers
have been conferred on the Deputy Director in the widest terms so that the
claims of the parties under the Act may be effectively adjudicated upon and
determined so as to confer finality to the rights of the parties and the
Revenue Records may be prepared accordingly.
But in
the very next para the amplitude and the extent of the powers have been
qualified thus : Normally, the Deputy Director, in exercise of his powers, is
not expected to disturb the findings of fact recorded concurrently by the Consolidation
Officer and the Settlement Officer (Consolidation) but where the findings are
perverse, in the sense that they are not supported by the evidence brought on
record by the parties or that they are against the weight of evidence. It would
be the duty of the Deputy Director to scrutinise the whole case again so as to
determine the correctness, legality or propriety of the orders passed by the
authorities subordinate to him.
Thus,
it is clear that notwithstanding the fact that Section 48 has been couched in
wide terms, it only permits interference where the findings of the subordinate
authority are perverse in the sense that they are not supported by the evidence
brought on record or they are against the law or where they suffer from the
vice of procedural irregualrity.
Now,
reverting to the facts of this case, the Settlement Officer has correctly
framed the questions; whether the parties are members of joint Hindu family and
the property in dispute is joint Hindu family property. He discussed the documents
of 1905, 1906, 1911, 1916, 1919 and 1920 executed in favour of various members
of the family including minors to show that the family acquired properties in
the names of the family members including minors. He also referred to Khewat of
1924 and 1932 to arrive at the conclusion of existence of joint family. Another
fact which was taken into consideration was that Hanuman Prasad entered into
partnership agreement in June 1948 which shows that Hanuman Prasad was a
partner and Gaya Din was an honorary manager.
It is
in that background he referred to Gaya Din depositing ten times revenue in 1950
for acquisition of Bhumidari right in the lands covered by the Khatas in
dispute for the benefit of the joint family. He has also relied upon possession
of plots irrigation deposits, entries in Kanpur plots, printing of invitation cards by the family to support the
conclusion of the jointness of the family. It was the cumulative effect of all
these factors that made the Settlement Officer Consolidation to arrive at the
conclusion that the family was joint and that the khatas were maintained in the
names of members of different branches of the family. He thus concluded that
the eight khatas in question were joint Hindu family property and all the
parties were co-owners thereof. A perusal of the order of the Deputy Director
of Consolidation shows that nowhere he pointed out that the findings recorded
by the Settlement Officer Consolidation were perverse or contrary to the
evidence or not supported by evidence. What all appears is that in respect of
certain facts, the Deputy Director arrived at the conclusion different from
that reached by the Settlement Officer Consolidation but that by itself, in our
view, does not under Section 48 of the Consolidation Act clothe the Deputy
Director with the power to disturb the findings of fact recorded by the
Settlement Officer Consolidation. The High Court in the impugned order noted :
The
Settlement Officer Consolidation on considering of Khewat, Annexure-1 as also
application for mutation on behalf of Mathura Prasad and Ganga Krishna minor
sons of Sadhau, opposite party No.1 having applied for their mutation in the
joint khewat Annexure-2 and other documents together with other evidence
rightly held the family to be joint and no partition had taken place. It was
also pointed out that the Deputy director of Consolidation lost sight of the
fact that there was no iota of evidence to indicate that the opposite parties
made self- acquisition of any land. It was in that context that the High Court
observed that since the evidence on record and on appraisal of law, the
Settlement Officer Consolidation did not commit any error apparent on the face
of the record which could have been disturbed by the Deputy Director of
Consolidation.
It was
further pointed out that the findings of the Deputy Director of Consolidation
suffered from non-consideration of oral and documentary evidence which was
taken into account by the Settlement Officer Consolidation and was erroneous on
the face of record as such the same could be disturb in exercise of the
jurisdiction under Article 226 of the Constitution. The High Court has also
noted that the order of the Deputy Director was based on improper consideration
of evidence and wrong application of well- settled principle of law about
presumption of jointness in a joint Hindu family and quashed the order of the
Deputy Director of Consolidation. We find no illegality in the impugned order
of the High Court. Mr.Choudhary has next contended that even assuming that Manni
was the Head of the family and held the tenancy rights under the U.P Tenancy
Act the succession is not according to Hindu Law but under the provisions of
the Tenancy Act and that in any event the claim that the joint family possessed
tenancy rights cannot be accepted and in support of this contention he relied
upon the judgment of the Full Bench of the Allahabad High Court in Chotey Lal
& Ors. vs. Jhandey Lal & Anr. [1972 A.W.R. 225]. There can be no
controversy about the contention that the succession of the tenancy rights,
special rights created under the Act, can only be under the provisions of those
Acts. On Mannis death his sons Bala Prasad, Sadhau and Sheetal Prasad became
entitled to 1/3rd each. But they continued as joint Hindu family of which their
children also became members. It is a well-settled principle of Hindu Law that
the joint and undivided family is the normal condition of Hindu society but it
is not a juristic person as such it cannot hold any property independent of the
members. On a perusal of the aforementioned judgment of Full Bench of Allahabad
High Court, we approve the following proposition laid down by it : That the
members of the joint family collectively own the coparcenary property. Each
member has an interest in such property, though his interest becomes definite
on partition. Till then, it is an undivided interest. The view express in Mahabir
Singh and the other cases mentioned above, that the members were not the
tenants of the holding because they had no interest in it, is, with respect,
fallacious. In law, the members of the joint Hindu family together become the
tenants of the holding. The coparcenary body as such, and as an entity apart
from its members, does not own property. The property does not vest in the coparcenary
but in its members, though collectively.
But
this position far from supporting the claim of the appellants negatives their
claim. As the khatas in question which now comprise of Bhumidari and Sirdari
lands, could not be held in the name of the joint family which is not a
juristic person, they stand in the names of the members of different branches
of the family and the khatedars ought to be taken as holding collectively for
the benefit of all the members of the family. For the above reasons, the
judgment and order of the High Court does not suffer from any illegality to
warrant interference by this Court. The appeal is accordingly dismissed with
costs.
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