AMAR SINGH & ANR.versusASSTT. DIRECTOR OF CONSOLIDATION & ORS.

                              AMAR SINGH & ANR.
                                          v.
            ASSTI. DIRECTOR OF CONSOLIDATION & ORS.

                                 AUGUST 19, 1988

B        [R.S. PATHAK, CJ. AND LALIT MOHAN SHARMA, J.]

            U.P. Zamindari Abolition & Land Reforms Act, 1951: s. 169-
      Bequest-Bhumidhar vesting life estate in wife and remainder in their
      daughters-Interest of life estate holder-Nature of-Whether could get
      enlarged defeating the bequest-Testator's personal law-Whether
      attracted.

             The Bhumidhar bequeathed life estate to his wife and the remain-
       der in favour of the daughters. On his death the wife entered in posses-
       sion of the land and executed a will in favour of the appellants. In a
       proceeding under the U.P. Consolidation of Holdings Act the C~soli-
Ii>   .dation Officer accepted the claim of the daughters (respondent Nos. 6
       and 7) to Bhumidhari rights. That decision was reversed in appeal by
       the S 'ttlement Officer, but restored on revision by the Assistant
       Director of Consolidation. The High Court dismissed the writ petition.

            In this appeal by special leave it was contended for the appellants
F.    that for determining the heirship of a Bhumidhar, the personal law
      applica!>le. to him must be held to be excluded by the provisions of the
      U.P. Z~mindari Abolition & Land Reforms Act, 1951 dealing with
      succession exhaustively, and that Bhumidhari right is njit consistent
                                                                   a
      with limited inte.rest and wh~never such a ~ight vests in person, he
      becomes the absolute owner.

            Dismissing the appeal,

             HELD: The holder of a Hindu widow's estate is the owner of the
      property subject to certain restrictions on alienation. The whole estate
      is for the time vested in her and she represents it completely. Her right
q     is of the nature of a right of property, her positi,!ln is that of an owner
      and so long as she is alive no one has any vested interest in the
      succession. [526H-527B] ·

            Moniram Kolita v. Keerry Kolitany; 7 I.A. 115 and Janaki Ammal
      v. Narayanasami Aiyeri [1916] 43 I:A. 207, referred to.
H
                                          524
 AMAR SINGH v. ASSTI. DIRECTOR OF CONSOLIDATION [SHARMA,J.] 525

        In the instant case, however, the personaf law applicable to the
                                                                                       A
. testator and his wife is not attracted at all. The wife did not get the
  limited interest of a Hindu widow as recognised under the Hindu Law.
  What was bequeathed by her husband was· a life estate as understood
  under the English Law. She did not enter into possession as an heir. She
  got the land u'nder a will. The right of a Bhuniidhar with transferable
  rights to ·bequeath his holding or any part thereof by a will ·is expressly B
  recognised by s. 169(1) of the U.P. Zamindari Abolition· and Land
  Reforms Act. While bequeathing his Bhumidhari right in favour of his
                                       a
  daughters he could subject it to life estate in favour of his wife. The
·interest of the life estate balder thus continued to be a life estate and _did-not__ _
  get enlarged defeating the bequest in favour of the daughters. They shoul<j,
  therefore, be recognised as Bhumidhars. [527C, 526G, 527B, s2sq{526B]
                                                                                     c
       Ba/bhadra v. Board of Revenue, [1981] Allahabad Law Journa_I
 781, approved.

       · Ramji Dixd & Anr. v. Bhrigunath & Ors., [1968] 2 SCR 767 and
 Prema Devi v. ft Director, ·Consolidation, AIR 1970 -All 238,                       D
 distinguished.          ··

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2791
 of 1988.

      From the Judgment and Order dated 28.1.1986 of the Allahabad                   E
 High Court in Civil WFit·Petition No. 9502 of 1980.·

        Satish Chandra and D.K. Garg for the Appellants.-

     'Mahabir Singh, N.S. Malik.and ·P.D. Sharma ·for the Respon-
 dents.                            ·    '                         ·F

       The Judgment of the Court was· delivered by

      SHARMA, J. The question involved in this case is whether a
Bhumidhar with transferable rights while bequeathing his Bhumidhari
right in favour of certain beneficiaries can subject it to a life estate in : G
favour of another beneficiary, and if he is held to be so authorised,
whether the interest of the life estate holder shall continue to be" a life
estate or shall get enlarged defeating the bequest in favour of the other
beneficiaries.

       2. The Bhumidhar of the. disputed land Chukkhan executed a . H
     526         SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

A    will directing that life esta.te will tie vested in his wife Mst. Gilia and
     the vested remainder in their daughters-present respondent nos. 6 &
     7. Smt. Gilia entered in possession of the land on Chukkhan's death
     and executed a will in favour of the present petitioners. On her death a
     dispute arose in a proceeding under the Consolidation of Holdings Act
     as to whether the petitioners should be recognised as Bhumidhars or
B    the respondent nos. 6 & 7. The Consolidation Officer, respondent no.
     3 herein, accepted the claim of the respondents nos. 6 & 7 but the
     decisiqn was reversed in appeal by the Settlement Officer. The matter
     was, thereafter, taken in revision before the Assistant Director of
     Consolidatioq., respondent no. 1 who agreed with the Consolidation
     Offi'cer and ~l:storerl his order. The petitioners challenged this judg-
e    men\ by a writ' applic~tion under Article 226 of the Constitution before
     the ~llahabad Higj:i Court. By the impugned decision the writ applica-
     tion ~as been dismissed. Special leave is granted.
                                                                                   .I·
        3. The question for decision has been inaccurately formulated in
  the Special Leave Petition as to whether the provisions of the Hindu
D Succession Act or any other personal law can over-ride the provisions
  of the U .P. Zamindari Abolition & Land Reforms Act, 1951 (herein-
  after referred to.as 'the Act').

         4. Mr. Satish Chandra, the learned counsel for the appellants
   contended that the Act has by section 171 laid down the rule of succes-
IE sion and it is not permissible to apply any other law for determining
   the heirship to a Bhumidhar. Reliance was placed on Ramji Dix it &
   Anr. v. Bhrigunath & Ors., [196,8] 2 SCR 767 and Prema Devi v. Jt.
   Director, Consolidation, AIR 1970 Allahabad 238. The learned
   counsel placed the scheme of the Act before us for showing that the
   personal law applicable to a Bhumidhar must be held to be excluded
f by the provisions of the Act dealing with succession exhaustively. Our
   attention was drawn to the provisions of sections 155 & 156 restricting
   ihe right to create a mortgage or lease and it was contended that
   Bhumidhari right is not consistent with limited interest therein and
   whenever such a right vests in a person he becomes the absolute owner
   and any attempt to limit his interest must be repelled. We do not find
G any substance in the argument.

            5. The main fallacy in the stand taken on behalf of the appellants
     is in assuming that Mst. Gilia got the limited interest of a Hindu widow
     as recognised under the Hindu Law. What was bequeathed by her
     husband was a life estate as understood under the English Law. The
H,   holder ofa Hindu widow's estate is not a limited owner in that sense-
AMAR SINGH v. ASSTI. DIRECTOR OF CONSOLIDATION [SHARMA, J.) 527

 she is the owner of the property subject to certain restrictions on           A
 alienation. The whole estate is for the time vested-in her, and she
·represents· it completely (see Moniram Kolita v. Keerry Kolitany 7
 Indian Appeals 115). As observed by the Privy Council in Janaki.
 Ammal v. Narayanasami Aiyer, [1916) 43 Indian Appeals 207, her tjght
 is of the nature of a rightof properly, her position is that of an owner
                                                                               B
 and so long as she is alive no one has any vested interest in the succes-
 sion. That is not the position here. Mst. Gilia did not enter into Q~sses­
 sion as an heir. She got the land under a will. The right of a Bhumidhar
with transferable rights to bequeath his holding or any part thereo~ by
 a wiil Is expressly recognised by section 169(1) of the Act. It is manifest
 that in the present case the petson!il law applicable to Chukkhan and
 his wife does not come in the pictuue at all. So· far sections, 155 & 156     c
 _are concerned they are confined to cases of mortgage and lease and are
 not relevant in the present context.

      6, The dedsion in Rainji Dixit & Anr. v. Bhrigunath & Ors.
(supra) has no application in the present case. In· that case, on the
death of the owner of the land ;Raf:Kishore, the lands devolved upon
his wife Sanwari as a Hindu wicfow's estate and a dispute arose about
her right of alienation. In tlie Allahabad case also Smt. Prema Devi
whose title was in dispute acquired certain-right in the capacity of· a
Hindu widow. The cases ate therefore clearly distinguishable.

      7. The case of Batbhadra v. Board of Revenue, [ 198 li Allahabad'        E
Law Journal 781 was similar to the present- case and the view taken by
the learned Single Judge there, appears t<:>.be correct. Accordingly, we
find no merit in.this appeal which is dismissed with costs.   ·

P.S.S.                                                  Appeal dismissed. ·
                                                                               F