HIRAversusKASTURIBAI AND ORS.

..

                                    HIRA                                          A
                                      v.
                             KASTURIBAI AND ORS.

                               SEPTEMBER 3, 1996

                     (N.P. SINGH AND S.B. MAJMUDAR, JJ.)                          B

             Madhya Bharat Land Revenue and Tenancy Act:

            Sections 54, 63, 64, 65-Death of Pucca tenant-His wife becoming
     pucca; tenant-On her remarriage whether for-feited her right-Held,           C
     yes-Provisions of the tenancy Act not deemed to have been eclipsed or
     obliterated by over 1iding effect of Succession Act-S.4 of Succession Act.

             CIVIL APPELLATE JURISDICTION : Civil Appeal No .. 3968 of
     1988~
                                                                                  D
          From the Judgment and Order dated 25.8. 88 of the Madhya Pradesh
     High Court in S.A. No. 61of 1976.

             KN. Shukla and S.K. Gambhir for the Appellant.

            N.N. Goswamy, Ms. Indu Goswamy, Sakesh Kumar and SK Ag-               E
     niliotri for the Respondents.

             The following Order of the Court was ddivered :

            This appeal has been filed on behalf of the defendant to the suit in
     question. Respondent Nos. 1 and 2 (hereinafter to be ·referred to as the F
     'respondents') filed the aforesaid suit for declaration that the registered
     sale deed dated November 12, 1960 executed by their mother (respondent
     No. 3) in favour of the appellant was inv.alid because on that Clate she had
     no title over the lands in question. On behalf of the respondents it was
     asserted that their mother after the death of their father, Khuman Singh G
     some time in the year 1955-56 remarried in the year 1958 and because of
     that she forfeited the right to the lands which had devolved on her as
     widow.

           There is no dispute that Khuman Singh, the father of the respondents
     was a pakka tenant in respect of 23 Bighas of land in Khata No. 27 which H
                                        489
    490                  SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A is the subject matter in dispute. He died some time in the year 1955-56·
    before coming into force of the Hindu Succession Act (hereinafter referred
    to as the 'Succession Act'). According to the respondents, their mother had
    become a pakka tenant after the death of their father under the provisions
    of the Madhya Bharat Land Revenue and Tenancy Act (hereinafter to be
    referred to as the 'Tenancy Act'), but as she remarried in the year 1958,
B   she forfeited the right of pakka tenant and as such she could not have
    transferred the lands through the registered sak deed in favour of the
    appellant on November 12, 1960. The transfer was questioned by the
    respondents saying that under the provisions of the Tenancy Act after
    remarriage, their mother forfeited her right over the lands in question, and
c   such lands devolved on the respondents.

          The trial court decreed the suit holding that the mother of the
    respondents had no right, title or interest over the lands in question after
    she remarried in view of the provisions of the Tenancy Act. That finding
    was affirmed by the court of appeal and by the High Court by dismissal of
D   the second appeal filed on behalf of the appellant.

          According to the appellant, as respondent No. 3, the mother of the
    respondents, after coming into force of the Succession Act had become the
    absolute owner in respect of the property in her possession, she could have
E   conveyed a valid title to the appellant by the sale deed aforesaid.

          Section 4 of the Succession Act is as follows :

             "4. Overriding effect of Act -

             (1) Save as otherwise expressly provided in this Act -
F
                 (a) any text, rule or interpretation of Hindu law or any custom
             or usage as part of that law in force immediately before the
             commencement of this Act shall cease to have effect with respect
             of any matter for which provision is made in this Act;
G
                (b) any other law in force immediately before the c;ommence-
             ment of this Act shall cease to apply to Hindus in so far as it is
             inconsistent with any of the provisions contained in this Act.

             (2) For the removal of doubts it is hereby declared that nothing
H            contained in this Act shall be deemed to affect the provisions of
                          HIRA v. KASTURIBAI                            491

        any law for the time being in force providing for the prevention of A
        fragmentation of agricultural holdings or for the fixation of ceilings
        or for the devolution of tenancy right in respect of such holdings."

      On a plain reading sub-section (1) gives the provisions of Succession
Act an overriding effe•ct. But sub-section (2) of Section 4 is in the nature
of proviso i.e. exception to sub-section ( 1). It clearly says that nothing    B
contained in the said Act shall deem to affect the provisions of any law for
the time being in force;

        (i)   providing for the prevention of fragmentation of agricultural
              holding;
                                                                               c
        (ii) for fixation of ceiling;

        (iii) for devolution of tenancy rights in respect of such holdings;

       According to the respondents because of sub-section (2) of Section
4 of the Succ~ssion Act the provisions of Succession Act shall not have D
overriding effect over the provisions of the Tenancy Act. Under the
provisions of the Tenancy Act, because of Section 83 read with Section 82
after the remarriage the right of a pakka tenant which had devolved on the
mother of the respondents devolved on the heirs of Khuman Singh i.e. the
respondent.
                                                                               E
        Section 83 provides :

           "83. Succession in the case of a woman holding an interest as
        a widow, mother, daughter etc.

           · (1) When a pakka tenant who has inherited an an interest in F
        any holding as a widow, mother, step-mother, father's as a widow,
        mother unmarried daughter or unmarried sister or father's father's
        mother dies or marries, her rights in the holding shall devolve upon
        the nearest surviving heir (such heir being ascertained in accord-
        ance with the provisions of Section 82) of the last male pakka
        tenant.                                                              G
             (2) Nothing in sub-section (1) shall apply to a person succeed-
        ing to an interest in any holding under the provisions of Section
        84."

                                                       (emphasis supplied) H
    492                  SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A         In view of Section 83 whenever a widow who has inherited a right of
    a pakka tenant, as in the present case, the mother of the respondents, if
    remarries then her right in the holding shall devolve upon the nearest
    surviving heir of the last male pakka tenant. Section 82 of the Tenancy Act
    prescribes the mode of devolution of the right when .a male pakka tenant
    dies. Although Section 82 is attracted when a pakka tenant dies but in view
B
    of Section 83 itself which refers to said Section 82, for the purpose of
    devolution of the interest in the event a widow marries, Section 82 shall
    also be applicable in a case where the widow remarries. From the classes
    of heirs indicated in Section 82, married daughters have been described as
    Class III heirs.
c
          It is an admitted position that in the present case, there is no Class
    I or Class II heirs. As such, after the remarriage of the mother, because of
    Section 83 read with Section 82, the right of pakka tenancy shall be deemed
    to have devolved on the heirs of Khuman Singh i.e. the respondent.
D
           Learned counsel appearing for the appellant could not contest the
    position that in view of Sections 82 and 83 of the Tenancy Act and because
    of the remarriage of the mother of respondents, the right of pakka tenancy
    which the mother of the respondents had inherited, devolved on the
    respondents. He, however, contended that sub-section (2) of Section 4 of
E   Succession Act shall not cover such devolution because the right of a pakka
    tenant over the concerned land is not a tenancy right within the meaning
    of sub-section (2) of Section 4. According to the learned counsel for the
    appellant, apakka tenant is a 'Bhumiswami'. However, Mr. Shukla, learned
    counsel appearing for the appellant, very fairly pointed out that this situa-
F   tion will be with effect from coming into force of the Madhya Pradesh Land
    Revenue Code of 1959 in the year 1959. Any provision which was enacted
    after the remarriage of the mother of the respondents in the year 1958 shall
    not govern this case. Admittedly the mother of the respondents remarried
    in the year 1958, before coming into force of Madhya Pradesh Land
    Revenue Code. On that date it will be deemed that she was a pakka tenant
G   of the lands which are the subject matter in dispute. The question of
    devolution of such right shall be governed by the provisions of the Tenancy
    Act aforesaid.

           By mere reference to Section 54(vii) which defines a pakka tenant,
H    Section 63 which requires a pakka tenant to pay rent, and Section 64, 65,
                          HIRA v. KASTURIBAI                             493

66(3) and 79 it shall be apparent that a pakka tenant is also a tenant. He      A
holds the land in question on the statutory terms and conditions prescribed
in the aforesaid Tenancy Act. In this background, after the death of the
male holder, Khuman Singh his pakka tenancy right in the lands in question
devolved on the mother of the respondents. The same will be the position
when the mother of the respondents remarried. Because of Section 83 of          B
the said Tenancy Act read with Section 82 it shall be deemed that the pakka
tenancy right of the mother of the respondents devolved on the respon-
dents. Once it is held that the devolution of tenancy right in respect of the
holdings in question took place in the year 1958 on the respondents then
their mother (Respondent No. 3) could not have executed the registered
sale deed in favour of the appellant on November 12, 1960.                      C
       Because of sub-section (2) of Section 4 of the Succession Act the
provisions of Tenancy Act referred to above shall not be deemed to have
been eclipsed or obliterated by the overriding effect of Succession Act.
According to us, the trial court, the court of appeal and the High Court
rightly came to the conclusion that in the year 1960 the respondent No. 3,      D
the mother of the respondents had no right, title or interest over the
properties in question. Accordingly, the appeal fails and it is dismissed. No
costs.

G.N.                                                      Appeal dismissed.