1. I have had the advantage of reading the judgments of our brothers Jagdish Sahai and Dwivedi and agree with the view taken by the latter. The most important fact is that the legislature has not said anywhere that a widow who has inherited bhumidhari rights from her husband has only it life interest and cannot transfer the bhumidhari rights permanently. On the other hand, Section 152 has made the interest of a bhumidhar transferable subject only to the conditions contained in Chapter VIII. Bhumidhari rights being heritable can be inherited by different classes of heirs but the legislature has made no attempt to distinguish between bhumidhari rights inherited by one class of heirs from those inherited by another class of heirs except in regard to succession or death. Other provisions in the Zamindari Abolition and Land Reforms Act concerning bhumidhari rights apply to all persons owning bhumidhari rights regardless of how they acquired them or from whom they inherited them. The legislature has made no distinction between the nature of bhumidhari rights inherited by a son from his father and the nature of those inherited by a Hindu widow from her husband and of those inherited by a Muslim widow from her husband. Section 152 applies to all bhumidhars alike. Consequently the interest of a bhumidhar inherited by a widow from the husband is as much transferable (of course subject to the conditions contained in Ch. VIII) as that inherited by a son from his father. Had the legislature intended to confer only a life interest on a widow inheriting bhumidhari rights from her husband one would have expected it to say so expressly; such a fundamental proposition of law would not have been left merely to be inferred from certain circumstances.
2. An agricultural tenant has no religion and no personal law except as expressly provided in the Zamindari Abolition and Land Reforms Act, it applies to Hindus, Muslims, Christians etc. regardless of their religion and, therefore, regardless of their personal law except as regards succession in certain cases. It contains its own provisions regarding inheritance and transfers; and when it has left certain matters to be governed by the personal law it has done so by an express provision. Personal law has never been applied proprio vigors to questions of inheritance and transfer of tenancy rights as it has been applied to inheritance and transfer of proprietary rights.
3. It is an incidence of Hindu Law that a widow inheriting property from her husband acquires only a life interest. There is no justification whatsoever for imposing this principle of Hindu Law on bhumidhars professing a religion other than Hinduism.
4. It happens that under Hindu Law a Hindu widow acquires only a life interest by inheritance and on her death succession reopens to the last male-holder, but life interest is not a sine qua non of succession reopening to the previous holder. There is nothing repugnant between a person having only a life interest and the interest being inherited by a person directly related not to her but to some other person. Succession is not so connected with life tenancy that it can be said that one line of succession is wholly repugnant to life tenancy Any line of succession can exist with life tenancy; succession opens on death and after death the question whether the deceased had life tenancy or absolute property becomes wholly irrelevant. Succession is to whatever property is left by the deceased and there is absolutely no difficulty in making It inheritable by any person. Consequently life tenancy cannot be inferred merely because the law lays down a particular line of succession similar to that prevailing in respect of Hindu widows, particularly when the law does not distinguish between Hindu tenants and others.
5. A Hindu widow is not absolutely forbidden to transfer the property inherited from her husband; in certain circumstances she can make an absolute transfer of it, e.g. for legal necessity or for the benefit of the estate. The Zamindari Abolition and Land Reforms Act does not contain any provision allowing absolute transfer of bhumidhari rights on such grounds and it follows that there is not even a conditional bar on a female bhumidhar's right of transfer.
6. Our brother Jagdish Sahai has mentioned the provisions in the Zamindari Abolition and Land Reforms Act from which he Infers that a female bhumidhar has only a life tenure, but with great respect I do not think that this inference necessarily flows from them. None of the provisions is inconsistent with bhumidhari rights vesting absolutely in a Hindu widow. Merely because the line of succession laid down to the Act reminds one of the line of succession to Hindu widows it cannot be said that a female bhumidhar has only a life interest like a Hindu widow, because, as I said earlier such line of succession can exist even when the deceased female had an absolute estate. I do not think Section 6 of the Transfer of Property Act has any relevancy to the question whether Section 152 of the Zamindari Abolition and Land Reforms Act confers as wide power of transfer on a female bhumidhar as on a male bhumidhar. The power at transfer conferred by Section 152 is subject to the conditions contained in Ch. VIII; the express mention of only this restriction Indicates that there is no other restriction and that in a case to which the conditions do net apply the power of transfer is as wide as it can be. No restriction on the power is to be imported from any notions of Hindu Law It must be realised that we are not dealing with 8 case governed by Hindu Law and that we have no right to impose Hindu Law upon a Muslim or a Christian. The analogy of Section 6 of the Transfer of Property Act not preventing Hindu widow from being deprived of absolute power of transfer does not apply to Section 152 of the Zamindari Abolition and Land Reforms Act because tenancy rights are governed by the statute law and not the personal law. There is also no occasion for invoking the principle that one cannot transfer a higher right than one possesses because the question is of the nature of bhumidhari right possessed by a female and if her interest is as great as that of a male bhumidhar she can transfer as great an interest as a male bhumidhar possesses.
7. A female bhumidhar is prohibited from bequeathing her interest but such a prohibition could have been imposed upon her in spite of her having absolute right. The legislature is not forbidden by the Constitution to deny a testamentary right to an absolute owner. Nothing at all turns upon the absence of the word 'his' in Section 172 This word had to be used in Section 171 because there was no earlier reference in the section to any interest or holding and the interest dealt with in the section had to be identified by the use of the pronoun 'his'. Such a necessity did not arise in Section 172, which starts with the premise that a bhumidhar has inherited an interest to any holding. The legislature certainly did not intend to distinguish between a holding and an interest in a holding and it would be unjustifiable to read more in Sections 171 and 172 than what is contained in them Again the question arises why if the legislature intended to confer upon a female bhumidhar only a life-interest it did not say so expressly
A court is not competent to enforce legislative intention unless it is expressed in operative words and one would search in vain in the Zamindari Abolition and Land Reforms Act for operative words to the effect that a widow inherits bhumidhari rights only as a life tenant. Our learned brother has referred to Section 172(2)(b) regarding surrenderby a female bhumidhar but this effect of surrender by a female bhumidhar is different from the effect of surrender by a Hindu widow who can surrender her interest in favour of all the next reversioners Under the Zamindari Abolition and Land Reforms Act surrender can be only to the land-holder where as under the Hindu Law it can be to the next reversioners. The Zamindari Abolition and Land Reforms Act does Dot know of next reversioners at all. So long as devolution of a widow's bhumidhari rights on her death to the heirs of the last male-holder is not inconsistent with her having absolute estate the inference of her having only a limited estate cannot be drawn from it; the principle underlying an inference to be drawn from circumstances is that no inference can be drawn unless the contrary inference would be inconsistent with the circumstances. An inference cannot be drawn merely because it would be consistent with the circumstances I am at a loss to know how allowing absolute power of transfer to a Hindu widow would be subversive of the scheme of the Act Inheritance can always be to the property left by the deceased; if he or she leaves some property it will be inherited but be or she is not bound by any law to leave property to be inherited. When the law lays down who will inherit property of the deceased it does not thereby compel him of her to leave property to be inherited; what it means is that if he or she leaves any property it will be inherited by such and such persons Heirs are provided for in respect of bhumidhari rights of not only females but also of males and if male bhumidhars have absolute right of transfer notwithstanding the provision regarding heirs there is no reason why female bhumidhars should be denied this right The relationship between a female bhumidhar and the heirs referred to in Section 172 does not by itself give rise to an obligation on her part to leave the bhumidhari rights intact at the time of her death.
8. In the result I concur in the order proposed by our brother Dwivedi.
Jagdish Sahai, J.
9. I have read the opinions prepared by my brother Dwivedi and the learned Chief Justice With great respect, 1 am unable to agree with them. I have, therefore, incorporated my views in a separate judgment.
10. The facts of the cases so tar as necessary for the determination of the question referred to this Full Bench have been given in the judgment of my brother Dwivedi, and it is therefore not necessary to repeat them here. The Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) contemplates two classes of female bhumidhars. One class consists of female bhumidhars in whose case succession is governed by the provisions of Section 172 of the Act In this class are included females who have inherited in the capacity of a widow, a widow of a male lineal descendant, in the male line of descent, mother or father's mother, daughter, sons daughter, sister and half sister The other class consists of those to whose case succession is governed by Section 174 of the Act. In the instant case we are concerned with female bhumidhars on whose death succession would devolve as provided by Section 172 of the Act. For purposes of easyreference and in order to answer the question before us, I have referred to this class as female bhumidhars. The female bhumidhars on whose death succession is governed by the provisions of Section 174 of the Act have not in this judgment been described as female bhumidhars but as female bhumidhars in whose case Section 174 o the Act applies. The question requiring answer from us is whether a transfer made by a female bhumidhar is good only during her life time or is an absolute transfer, i.e. one effective for all time.
11. The class of tenure holders known as bhumidhars were unknown in any of the earlier Tenancy Acts either applicable to Oudh or to what was called the Province of Agra, or the erstwhile North Western Province or to the whole of the United Provinces. Section 180 of the Act reads :
'130. Every person belonging to any of the following classes shall be called a bhumidhar and shall have all the rights and be subject to all the liabilities conferred or imposed upon bhumidhars by or under this Act namely:-
(a) every person who as a consequence of the acquisition of estates becomes a bhumidhar under Section 18
(b) every person who acquires the rights of a bhumidhar under or in accordance with the provisions of this Act.'
I would follow from this provision that the bhumidhars under the Act came from two sources, i.e., firstly, those who as a consequence of the acquisition of the estates became bhumidhars under Section 18 of the Act, and secondly, those who acquired those rights, under or in accordance with the provisions of the Act. Section 18 of the Act reads as follows.
'18(1) Subject to the provisions of SECTIONS 10, 15, 16 and 177, all lands:
(a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove
(b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh
(c) held by a fixed rate tenant or a rent free grantee as such, or
(d) held as such by-
(i) an occupancy tenant.
Possessing the right 10 transfer the holding by sale.
(ii) a hereditarytenant,
(iii) a tenant on pattadavvami or istamrari referred to to S. 17.
(e) held by a grove-holder
on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, granter or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof.
(2) Every person belonging to the class mentioned in Section 3 or Sub-section (2) of Section 3-A of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949, who has been granted the declaration referred to in Section 6 of the said Act in respect of any holding or share thereof shall, unless the declaration is subsequently set aside, be deemed to be the bhumidhar of the holding ofthe share in respect of which the declaration has been made and continue in force.
(3) Notwithstanding anything contained in the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949, any declaration granted under Section 6 of the said Act in favour of a tenant to whom Sub-section (2) of Section 10 applies, shall be and is hereby cancelled and the amount, deposited by him under Sections 3 or 6 of the said Act shall, after deducting the amount which might have been paid or be payable by the State Government to his land-holder under Sections 7 and 8 of the said Act, be refunded to the person entitled in such manner as may be prescribed.'
Sections 134, 139 and 235 provide the manner in which bhumidbari rights can be acquired under the Act. Under the provisions of the earlier Tenancy Acts, a tenure-holder had no right to transfer his Interest in the holding. Section 1S2 of the Act, however, permits transfer of a bhumidhari interest. That provision reads as follows:-
'152. The interest of a bhumidhar shall be transferable subject to the conditions hereinafter contained in this Chapter.'
12. The question for determination is whether the effect of Section 152 of the Act is to give a light of absolute transfer. It was contended at the Bar that the language of Section 152 of the Act is extremely wide and its provisions are all embracing in their scope and all bhumidhars to whichever class they belong or from whichever source they may have emerged have an absolute right of transfer. This argument has been accepted by my brother Dwivedi and by my Lord the Chief Justice. I am, however, of the opinion that that is neither the intention nor the effect of Section 152 of the Act. That provision only makes it permissible for a bhumidhar to transfer his or her interest in the holding which right he or she otherwise has not got. It does not, however, confer on him or her a right to transfer an interest larger than he himself or she herself under the law has. The provisions of Section 152 of the Act are analogous to Section 6 of the Transfer of Property Act, which provides that
'The property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.'
To my mind the provisions of Section 152 of the Act are only enabling ones. That provision was not intended to nor does it govern the life of a transfer or alienation. It does not also determine the period of its validity. That Section 152 of the Act is permissive or enabling is apparent, apart from its own language, also from the provisions of Section 153 of the Act which provides that 'the interest of a sirdar and asami shall not be transferable' except as otherwise provided by this Act. Even though Section 6 of the Transfer of Property Act is as widely worded as Section 152 of the Act, it is trite that an alienation by a Hindu widow who has a life interest only cannot enure beyond her lifetime. The limitation on the right of a Hindu widow to alienate is not to be found in the language of Section 6 of the Transfer of Property Act but in the Hindu Law of Inheritance and succession It is well settled that a person cannot confer on another any right higher than what he himself possesses (See Haribar Prasad Singh v. Deonarain Prasad, (S) AIR 1956 SC 305 at p. 312 (col. 1)). In my judgmentto look into the provisions of Section 152 of the Act for finding out whether or not a female bhumidhar can make a transfer effective even after her death is to look into wrong quarters. That section does not deal with the limits of rights enjoyed by the various classes of bhumidhars nor with the extent of their tenure. The relevant provisions for the same would be those dealing with inheritance and succession. Section 152 of the Act has got to he interpreted in the background of the ever recognised legal principle that a person can only transfer what in law belongs to him. Therefore, the so much talked of generality of the language of Section 152 of the Act cannot help us to answer the question referred.
13. With great respect to my brother Dwivedi, I do not share the assumption that while dealing with questions relating to tenancy or tenure holder's rights, the mind of a Hindu is necessarily warped, nor am I satisfied that there are any cogent or compelling reasons against the view that I am taking. In my opinion, a Judge is neither a legislator nor a social reformer. While interpreting a statutory provision, it is his duty to find out from the words used as to what the legislature intended to provide for. This can only be done by a thorough analysis of the relevant provisions. Having carefully perused the various provisions of the Act, I have come to the conclusion that a female bhumidhar has only a life interest in the bhumidhari holding and consequently any transfer made by her cannot continue to be valid after her death. The first provision which leads me to take that view is Section 169 of the Act, which reads as follows:
'169. (1) A bhumidhar may by will bequeath his holding or any part (hereof except as provided in Sub-section (2).
(2) No bhumidhar entitled to any holding or part in the right of a widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased may bequeath by will such holding or part.
(3) Every will made under the provisions of Sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, be in writing and attested by two persons'
Sub-section (2) of that Section completely prohibits a female bhumidhar from making a testamentary bequest of the bhumidhari holding though it permits other bhumidhars to do so. From this prohibition, I read the legislative intent to be that the female bhumidhars have only a life interest. There is no other hypothesis on the basis of which this distinction between a female bhumidhar and other bhumidhars deliberately made by the legislature can be explained.
14. The second reason is that there are provisions in the Act which I will presently refer to, showing that in case of a female bhumidhar while dealing with her succession, different words are used from those used in connection with the succession to a male and the difference in the language is not accidental but deliberate. Section 171 of the Act, so far as relevant, reads as follows:
'171 Subject to the provisions of Section 169 when a bhumidhar, sirdar or asami being a male dies, his interest in his holding shall devolve inaccordance with the order of succession given below ...............'
It would be noticed that vis-a-vis a male bhumidhar the holding has been described to be 'his' and the interest also as 'his'. In other words Section171 of the Act clearly declares that in the case of a male bhumidhar the holding is 'his' and when he dies, it is 'his' interest which survives. A completely different position is discernible in Section172 of the Act which deals with succession to a female bhumidhar. That provision, so far as relevant for our purposes, reads as follows:
'When a bhumidhar, sirdar or asami who has,after the date of vesting, inherited an interest inany holding the holding of the part shalldevolve upon the nearest surviving heir (such heirbeing ascertained in accordance with the provisionsof Section 171) of the last male bhumidhar, sirdaror asami'
The holding has not been described to be hers and has been treated to be the holding of the last male-holder in which the female bhumidhar has only inherited an interest. Why this difference in the language of the two provisions if the nature of interest and the rights of a female bhumidhar are the same as those of a male bhumidhar or female bhumidhar whose succession is governed according to the provisions of Section 174 of the Act and to which class of female bhumidhars I have not. for the purpose of this case, used the expression 'female bhumidhars'? It would also be noticed that there is nothing in Section 172 of the Act similar to the expression 'his interest in his holding shall devolve' which occurs in Section 171 of the Act. This would also suggest that a female bhumidhar has only a life interest in the holding.
15. Lastly, in this connection it is worthy of note that on the death of a female bhumidhar succession to the holding goes not to her heirs butto the 'nearest surviving heir of the last malebhumidhar'. In other words it is the heirs of thelast male-holder and not that of the deceasedfemale bhumidhar who succeed to the holding.This would again indicate that her interest in theholding ends with her death. In tact Section 171of the Act clearly shows that when a female bhumidhar succeeds a male, she is only an heir forlife of the last male-holder and not a full ownerof the holding and that on her death the holdingreverts to the last male-holder; Section 172 (1)(a)of the Act provides that in case of remarriage afemale bhumidhar loses her interest in the holdingand the same passes on to the next heir of thelast male-holder. This would also show that sheis not a full owner. If a female bhumidhar or afemale sirdar abandons or surrenders the holdingthe same devolves upon the nearest surviving heirof the last male tenant. In this connection Clauses(a) and (b) of Section 172(2) of the Act requirenotice. Clause (a) deals with the female bhumidhar who was before the date of vesting a fixedrate tenant or an ex-proprietary or occupancy tenant or a tenant on special terms in Oudh andwho was in accordance with the personal law applicable to her entitled to a life estate only, andprovides that on her death the holding shall devolve upon the 'nearest surviving heir of the last male intermediary or tenant aforesaid'Clause (b) provides that where a female bhumidharor sirdar abandons, or surrenders the holding thesame would devolve 'upon the newest survivingheir of the last male tenant.' Readingthe two provisions together it is clear that thefemale bhumidhars are equated with those whohave a life interest only by virtue of their personal law.
Section 172-A of the Act reads as follows:-
'172-A. Where a sirdar or adhivasi who has inherited any interest in any holding as a widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half sister being the daughter of the same father as the deceased acquires the rights of a bhumidhar in such land under Section 134 or 235 the rights so acquired shall for the purpose of devolution under Section 172 be deemed to be succession to the holding of the last male-holder thereof.'
This section definitely provides that even in the case where a female sirdar or adhivasi acquires bhumidhari rights in the holding inherited by her notwithstanding the circumstances that it was her act which converted the holding into bhumidhari, succession to it would still devolve under Section 172 of the Act on the heirs of the last male-holder and the legal position would be that the 'bhumidhari holding so acquired would be deemed to be 'the holding of the last male-holder' and not of the female who acquired bhumidhari rights in it. This provision clearly indicates that a female bhumidhar has only a life interest. It would be relevant to refer to the provisions of Section 174 of the Act, where in respect of the female holder to whom that provision is applicable the words used are: 'her interest in the holding shall devolve', a language similar to that of Section 171 of the Act and totally dissimilar to that of Section 172 of the Act. The females mentioned in Section 174 are full owners and not mere life interest-holders. It is clear from the section that it is her interest which devolves on the successor who is her next heir and not that of a male-holder which is the case under Section 172 of the Act.
16. As said earlier, the scheme of the Act la that female bhumidhars are limited owners enjoying life tenure only On their death not their heirs but the heirs of the last male-holder succeed to the property. In my judgment, it would be subversive of the scheme of the Act to read Section 152 of the Act in a manner so as to give to the female bhumidhars the right of disturbing the succession to the holding and to defeat the rights of the legal heirs entitled to the holding after the death of the female bhumidhar It also appears to me that Section 152 of the Act should be so read as to be compatible with the legal position of limited ownership of the female bhumidhars discernible from the relevant provisions of the Act. It is well settled that the various provisions of an Act should be read harmoniously so that they may not conflict with each other. The conflict can only be avoided by reading Section 152 of the Act in the sense in which I have read it.
17. It was contended at the Bar that no importance should be attached to the expression 'his interest in his holding' occurring in Section 171 of the Act and to the absence of such words in Section 172 of the Act on the ground that a Bhumidhar like a sirdar or asami is only a tenure-holder though his interest is larger For this proposition reliance is placed upon Mahendra Lal Jaini v. State of U. P., AIR 1963 SC 1019 at p. 1034. In my view, the difference in the language of Sections 171 and 174 on the one hand and Section 172 on the other cannot be explained away on the ground that a bhumidhar does not own the holding in the sense of being a full proprietor and is only a tenure-holder. In my judgment, the case of Mahendra Lal Jaini, AIR 1963 SC 1019 has no application to the facts of the present case and does not touch the point which we are considering.
18. A study of the various provisions referred above, which are relevant for the decision of the question referred results in noticing that a female bhumidhar does not become a fresh stock of descent, but a female bhumidhar, in whose case succession is governed by the provisions of Section 174 of the Act is a fresh stock of descent, like a male bhumidhar. Normally, it is only a person who becomes a fresh stock of descent who is consider ed to he the full owner. For this reason also I am of the opinion that a female bhumidhar has only a life interest and consequently a transfer by her, under the provisions of Section 152 of the Act, can only enure for her lifetime.
19. In Smt. Kalawati v. Kawal Singh 1958 All LJ 547 and Bhupal v. Board of Revenue U P 1962 All LJ 468 it was held by this Court that a female bhumidhar has a right of absolute transfer and that alienations made by her would enure even after her death. With great respect to the learned Judges, who decided these cases. I am unable to agree. In 1958 All LJ 547 (supra), Srivastava. J., while dealing with the difficulty created by Section 169(2) of the Act observed as follows:-
'Section 169 only provides that a bhumidhar cannot by will bequeath his holding or any part thereof except as provided in Sub-section (2) This means that, though a Bhumidhar has a right to will away his holding, the right is a restricted one and the will can be made only in favour of the persons mentioned in Sub-section (2) of Section 169 and in the manner laid down in Sub-section (3) of that section. There is, therefore, no absolute prohibition even in respect of the making of a will by a Bhumidhar. There is nothing in the section to justify the contention that a Bhumidhar like Smt. Shyam Kuer possessed only a life estate in her holding and cannot on that account make a will or gift in respect of it.'
With profound respect to the learned Judge, I find it difficult to accept his view that Section 169 (2) does not create a bar against female bhumidhars executing a will in respect of the bhumidhari holding in their occupation. In fact, my brother Dwivedi and the learned Chief Justice do not seem to agree with Srivastava, J., on this point.
20. My brother Dwivedi has relied upon the provisions of Section 7-C of the U. P. Agricultural Tenants (Acquisition of Privileges) Act for holding that a female bhumidhar can make a will or transfer by way of sale or mortgage or gift her interest in the holding. With great respect to him, I am unable to treat it as relevant in this case where we are called upon to Interpret the provisions of the Act (U. P. Z. A, Act) and not the U. P. Agricultural Tenants (Acquisition of Privileges) Act. It is well settled that the provisions of one Act cannot be used to interpret the provisions of another Act. (See Pt Ram Narain v. State of U. P., (S) AIR 1957 SC 18). The provisions of Section 7-C of the Agricultural Tenants (Acquisition of Privileges) Act cannot be of any help also for the reasons enumerated below. It cannot be denied that if these provisions were held to be applicable to the case of a female bhumidhar also there would be a conflict between this provision and Section 169 (2) of the Act, because the latter provision completely prohibits a female bhumidhar from bequeathing her property by will. In my judgment, the provisions of Section 169 (2) of the Act would prevail over those of Section 7-C of the U. P. Agricultural Tenants (Acquisition of Privileges) Act. My reasons are ax follows:
'(1) The Act (U P. Z. A. Act) was passed later than the U. P. Agricultural Tenants (Acquisition of Privileges) Act. It is well settled that if there is any conflict between the provisions of two Acts, those of the latter Act would prevail on the ground that the former would be deemed to have been impliedly repealed. See Daw v. Metropoli tan Board of Works, (1862) 12 CB (NS) 161 and The King v. Justices of Middlesex. (1831) 2 B and Ad 818
(2) The U P. Agricultural Tenants (Acquisition of Privileges) Act was intended to provide for certain matters during the period of transition between the then existing revenue laws and the ushering in of the Act (U P. Z. A. Act). It was not a Revenue Code and did not deal with rights that the tenure-holders, including Bhumidhars were going to have under the revenue law of the State. Its provisions were only transitory in their nature and were enacted in order to facilitate the implementation of the provisions of the Act (U. P. Z, A. Act). This is clear from its preamble which reads as follows:-
'Whereas it is expedient to provide for payment by tenants with a view to facilitate the abolition of zamindari and to provide for reduction of rent and protection from ejectment and for certain other matters connected therewith . (3) That even though a person may have been granted a bhumidhari Sanad under the provisions of the U P. Agricultural Tenants (Acquisition of Privileges) Act, he did not acquire the status of a bhumidhar for that reason. (See Ishrat Husain v. Deputy Custodian, AIR 1955 All 538) He would acquire the status of a bhumidhar only if he be longs to the class mentioned in Sub-section (3) or Sub-section (2) of Section 3-A of the U P Agricultural Tenants (Acquisition of Privileges) Act. The effect of Sub-section (2) of Section 18 of the Act is that it is by virtue of that provision that a person holding a bhumidhari sanad becomes a bhumidhar in law so as to acquire bhumidhari rights conferred by the Act, The U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, does not confer rights of a bhumidhar on a per son who has received a bhumidhari sanad.
(4) Clause (3) of Section 18 of the Act clearly provides that 'Notwithstanding anything contained in the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949, any declaration granted under Section 6 of the said Act in Favour of a tenant to whom Sub-section (2) of Section 10 applied shall be and is hereby cancelled This sub-section would show that the provisions of the Act prevail over those of the U. P. Agricultural Tenants (Acquisition of Privileges) Act.
(5) Section 137 of the Act provides the manner in which a bhumidhari certificate can be obtained and Section 137-A provides the grounds on which the said certificate can be cancelled The latter provision corresponds to Section 12 of the U P Agricultural Tenants (Acquisition of Privileges) Act Sections 137 and 157-A of the Act reveal that the Act deals with the matter of grant of a bhumidhari certificate as also with the cancellation. These provisions would show that a bhumidhari certificate can after the passing of the Act be granted or cancelled only in accordance with the provisions of the Act and not in accordance with the provisions of the U P Agricultural Tenants (Acquisition of Privileges) Act.
(6) The U P Agricultural Tenants (Acquisition of Privileges) Act does not deal with the question of inheritance and succession, nor does it deal with the question as to whether a female bhumidhar has a life or an absolute interest. Those matters are exclusively dealt with so far as bhumidhars and other tenure-holders are concerned by the Act (U P Z A Act) In view of the fact that the U P Agricultural Tenants (Acquisition of Privileges) Act does not deal with the question of inheritance, succession or rights of a bhumidhar no support can be derived from the said Act for holding that a female bhumidhar has an absolute and not a life interest. A bare perusal of that Act shows that it was not intended that it should and it does not in fact deal with those matters at all. As its preamble show and the provisions the sole purpose of passing that Act was to acquire money in order to find funds to compensate the intermediaries (landlords) and to facilitate the administration of the Act (U P Z A Act) after it was passed '
For the reasons with great respect to my brother Dwivedi I am of the view that the provisions of Section 7-C of the Agricultural Tenants (Acquisition of Privileges) Act cannot be used in deciding the question before us.
21. In 1962 All LJ 468 (supra), the learned Chief Justice and Ram Asrey Misra, J., have held that a female bhumidhar has a right of absolute transfer For the reasons given in this judgment. I am unable to agree with the learned Judges.
22. A contrary view was taken by Bishambhar Dayal, J., in F A F O. No 214 of 1955 Indraj v Sultan, decided on 30-1-1958 (All) In my judgment that case was correctly decided and I agree with the views of Bishambhar Dayal J. In fact in the referring order in some of the instant cases, Bishambhar Dayal and Takru, JJ. clearly expressed the opinion that a female bhumidhar has no power of an absolute transfer They expressed themselves i the following words :
'We are, therefore, of the opinion that the transferees from such females got only defeasible interest which comes to an end When the female herself who transfers the property, loses that interest her transferee cannot acquire a larger right Since the Division Bench of this Court mentioned above has taken a different view, letthe papers of this case be laid before Hon'ble the Chief Justice for forming a larger Bench '
23. For the reasons mentioned above, I am of the opinion that the transfers made by female bhumidhars are not absolute and enure only during their lifetime.
24. The tactual simplicity of these cases is charged with an important issue. In second Appeals 1315 and 1316 the widow of a Hindu inherited his Sir and Khudkasht land before the abolition of Zamindari, became a Bhumidhar thereof under Section 18 of the Zamindari Abolition and Land Reforms Act (hereinbelow called the Act) and then made a gift of it in favour of the respondents; in Second Appeal 2421 the widow of a Hindu inherited land which he held as a tenant before the abolition of Zamindari, became a Sirdar thereof under Section 19 of the Act, then acquired bhumidhari rights in the land under Sections 134 and 137 of the Act and thereafter sold it to the appellants; in Second Appeal 324 the widow of a Hindu inherited his tenancy land before the abolition of Zamindari, obtained a declaration under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949. became a bhumidhar under Section 18 (2) of the Act, and transferred the land to the respondent, and thereafter remarried; in Second Appeal 4284 the widow of a Hindu inherited land held by him as a bhumidhar, and sold it to the respondents. The important issue is whether a transfer made by a female Bhumidhar is effective for all time.
24a. The mind of a Hindu warped by an immemorial tradition of a woman's limited estatewould be prone to find in the Act a negativeanswer to the issue, for 'the human understanding, when any proposition has once been laiddown............, forces everything else to addfresh support and confirmation; and although mostcogent and abundant instances may exist to thecontrary, yet either does not observe, or despisesthem, or it gets rid of and rejects them by somedistinction . . . . . , rather than sacrifice the authority of its first conclusion' We shall have toguard ourselves from this conventional bias whileexamining the provisions of the Act which have abearing on the issue.
25. Section 152 which is the pivotal provision, provides:
'The interest of a bhumidhar shall be transferable subject to the conditions hereinafter contained in this ChapterThese words are plain and unambiguous; they confer unrestricted power of transfer on a bhumidhar regardless of sex, race or religion, provided there is no other restrictive provision in the Act. It is asserted that the section does nothing of the kind; it is only reiterating a legal truism that no person can pass a better interest than he or she has As the interest of a female who succeeds to the interest of a male is limited, she cannot make a permanent transfer. In proof of her limited interest reliance is placed on Sections 169(2) 171, 172, 172-V and 174.
26. While Sub-section (1) of Section 169 declares that a bhumidhar may by will bequeath his holding, Sub-section (2) provides that no bhumidhar entitled to any holding in the right of a female relation of the last bolder thereof may make a bequest of it. Section 171 lays down the order of succession to the interest of a male bhumidhar. Sub-section (1) of Section 172 provides that where a bhumidhar, who has after the abolition of Zamindari inherited an interest in the holding as a female relation of the last male bhumidhar, marries, dies, abandons or surrenders such holding, it shall devolve on the nearest surviving heir of the fast male bhumidhar, such heir being determined in accordance with Section 171. Sub-section (2) prescribes three different methods of devolution; one, where a female, who has before the abolition of Zamindari inherited the Sir and Khudkasht or fixed-rate tenancy, or exproprietary tenancy or occupancy tenancy in Avadh or tenancy on special terms in Avadh, dies, the holding shall, if she was in accordance with the personal law applicable to her entitled to a life-estate only in it, devolve on the nearest surviving heir of the last male intermediary or tenant in accordance with Section 171; two, if she was entitled to the holding absolutely, the holding shall devolve in, accordance with Section 174; three, if the last male holder from whom she has inherited was a tenant other than the tenants mentioned in Clause (a), the holding shall devolve on the nearest surviving heir of the last male tenant, such heir being determined in accordance with Section 171. This sub-section further provides that where a female bhumidhar in the third category, being a widow, mother or grandmother of the last male tenant, remarries, abandons or surrenders, the holding shall devolve on the nearest surviving heir of the last male tenant in accordance with Section 171.
27. Section 172-A provides that where a sirdar or adhivasi, who has inherited an interest in a holding as a female from the last male tenant, acquires the right of t bhumidhar in the holding under Section 134 or 235, the right so acquired shall for the purpose of devolution under Section 172 be deemed to be an accession to the holding of the last male holder thereof. Section 174 provides the order of succession to the interest of a female bhumidhar other than those mentioned in Sections 171 and 172. Her interest in the holding shall devolve on her own heirs Sub-section (4) of Section 172 provides that the provisions of Sub-section (1) thereof shall not apply to a person succeeding to an interest in any holding under Section 174.
28. It is conceded that a female bhumidhar mentioned in Section 174 can make an alienation lasting beyond her life-time That is so because she has it is said, an absolute interest in the holding. We are unable to spell out from these inter-connected provisions any temporal limitation on the alienating power of a female bhumidhar mentioned in Sections 171 and 172.
29. It may be observed that while these interconnected provisions arc assorted under the heading 'Devolution', Section 152 find its allied provisions are grouped together under the heading Transfers'. Thus while the former deal with succession, the latter deal with transfer inter vivos.
30. It is in our judgment not a legitimate method of statutory construction to assume that the provisions regarding succession would regulate, cut down or expand the amplitude of the provisions regarding transfer of property inter vivos. Theirvisions are different While the rules regarding succession determine the destination of property after the death of the owner thereof, the rules regarding transfer determine the dispositive power of the owner in his lifetime. Naturally they may be oriented by different legislative policies from time to time History demonstrates that there have been different theories concerning succession and will, religions, social and moral Different factors may be considered when the law regarding succession and will is framed. Variant considerations, particularly of time, place and person, may colour the legislative judgment on the question of transfer of property inter vivos.
31. Although Section 14 of the Hindu Succession Act expressly declares that the property possessed by a female Hindu whether acquired before or after the commencement of the Act. shall be held by her 'as full owner' and not as a limited owner, Section 15 (2) provides that any property inherited by her from her parents shall devolve in the absence of her lineal descendants, not on her other heirs enumerated in Sub-section (1) but on the heirs of her father; if the property has been inherited from her husband or her father-in-law it shall devolve on the heirs of her husband.
32. The recent legislative precedent is a stero warning against inferring from the provisions regarding succession that the transfer made by a female bhumidhar would not enure beyond her lifetime or marriage.
33. Nor can such an inference be drawn from their lack of power to make a bequest of their interest. A Muslim full owner cannot by will dispose of more than a third of the surplus of his or her estate after payment of Funeral expenses and debts. Bequests in excess of it cannot take effect, unless the heirs consent to it after the death of the testator. The truth is that the full power of alienation and disposition is only an index of owner ship but cannot he regarded as essential in the definition of it.
34. It may be observed that Section 169(2) withholds testamentary power not only from those female bhumidhars who would not become fresh stock of descent but from them also who do be come so under Section 172(2)(a) (ii) and Section 174 and concededly possess an absolute interest in the tenure such as widow, daughter and sister Section 169(2) is a catch-all provision, and can not yield the inference that the female bhumidhars of the former class have no power to make a permanent alienation.
35. What prompted the legislature to enact Section 169(2) is not easy to discover. It may well have considered it imprudent to bestow testamentary power on them for the same motive which induced it to ordain that the holding inheritedby her from a male shall in certain cases devolve not on her heirs but on the heirs of the male.
36. Section 172-A expressly confines its application to the solitary case of devolution, and declares that for that purpose the acquisition of bhumidhari rights by a female sirdar or adhivasi shall be deemed to be an accession to the holding of the last male holder It cannot assist the argument.
37. Some stress is sought to be given to the language of certain provisions wherein the right of a male bhumidhar is described as 'his interest in his holding' and the right of a female bhumidhar as 'her interest in the holding This distinction is tenuous The latter expression is used even in Section 174 which deals with succession to the interest of a female bhumidhar who has admittedly an 'absolute interest' The former expression is self contradictory, the second 'his', is not strictly appropriate He is not the proprietor of the holding: it does not belong to him, He has only the interest of a tenure-holder in it, as a sirdar or an asami has though his interest is larger than theirs, AIR 196.3 SC 1019 at p. 10.34 The expression 'his interest in his holding' is used in Section 171 in relation to a bhumidhar, sirdar and asami, and it is nobody's case that a sirdar and asami have got an absolute interest in the holding The expression 'his holding' is used in Section 169 (1) which permits a bhumidhar to bequeath his interest as also in Section 170 which forbids a sirdar or asami from bequeathing 'his holding' As the abstract idea of 'interest' cannot be conceived of apart from the 'holding', the legislature has often used the two words interchangeably.
38. The scheme of the provisions grouped together under the heading Transfers' specially Sections 143. 144, 161, 163, 164 and 165 suggests that a transfer made by a female bhumidhar is effective for all time.
39. The immediate history of Section 152 may usefully be noticed at this stage An ex-proprietary tenant, occupancy tenant or hereditary tenant under the U P Tenancy Act, 1939 was not entitled to alienate his interest in a holding and was liable to eviction for arrears of rent The legislature passed the U P Agricultural Tenants (Acquisition of Privileges) Act, 1949 (hereinbelow called the 1949 Act) to provide inter alia for reduction of rent and protection from ejectment. If any one of the aforementioned tenants deposited a prescribed sum En the Government treasury, he was granted a declaration under Section 6 of that Act The grant of declaration conferred upon him the privileges of reduction of rent and protection from ejectment. The declaration could be granted also to the female heir of a deceased male tenant Section 340 of the Act paved the way for the grant of the privilege of permanent alienation on the person obtaining the declaration retrospectively from the date of the commencement of the 1949 Act. This new privilege was conferred by inserting Clause (C) in Section 7 of that Act Clause (C) pertinently reads:
'The applicant shall ....... be entitlednotwithstanding anything contained in the U P Tenancy Act 1939 or any contract, to bequeath by will or transfer by way of sale, simple mortgage orgift his interest in the holding or his share therein.'
40. The words 'the applicant' unmistakably show that the privilege of alienation if conferred even on the female heir of a deceased male tenant if she has obtained a declaration in her favour The grant of the privilege to make a will to the applicant shows that a transfer inter vivos by her would be operative beyond her lifetime.
41. Under Sub-section (2) of Section 18 of the Act she has become a bhumidhar by virtue of having obtained a declaration.
42. It is difficult to believe that the legislature conferred upon her the privilege of permanent alienation by Clause (C) of Section 7 of the 1949 Act read with Section 340 of the Act and took back the self-same right from her under Section 152. If it had intended to take back that right from her. It would have spoken in as downright language as it has used in Section 169(2) for withdrawing testamentary capacity from her.
43. In the absence of any restrictive provision in the Act we are not pursuaded to cut down the comprehensive meaning of Section 152 In our opinion a transfer made by a female Bhumidhar is effective for all time as already held in two cases We would hold that F A. F O. No. 214 of 1955 D/- 30-1-1958 (All), was wrongly decided.
44. These appeals would now go back with our opinion to the learned Single Judge for decision.
45. BY THE COURT: We would reframe the two questions referred by the learned single judge and in the light of the majority opinions answer as follows:-
1 (a). Whether a female who has inherited a holding before the enforcement of the Act from the last male holder and has become a bhumidhar under Section 18 or has acquired bhumidhari rights under Sections 134 and 137 can transfer such holding? Yes,
(b) It so, whether such transfer is valid and effective for her life or until remarriage or even beyond her lifetime? Valid and effective even beyond her lifetime.
2. (a) Whether a female who inherits a bhumidhari holding from a male bhumidhar can transfer such holding? Yes.
(b) If so, whether such transfer is valid and effective during her life or until remarriage or even beyond her lifetime? Valid and effective even beyond her lifetime.
46. The cases shall now go back to the learned Judge for decision on merits.
Gangeshwab Prasad, J.
47. The questions of law involved in these appeals were referred to a Full Bench whose answers have been received and may be stated as follows:
'A female who has inherited a holding before the enforcement of the U. P. Zamindari Abolition and Land Reforms Act from the last male holder and has become a bhumidhar under Section 18 or has acquired bhumidhari rights under Sections 134 and 137 can transfer such holding. The transfer is valid and effective not only for her life or until remarriage but valid and effective beyond her lifetime as well. A female who inherits a bhumidhari holding from a male bhumidhar can alsotransfer such holding. The transfer in such a case too is valid and effective not only during her life or until remarriage but valid and effective even beyond her lifetime.
48. The alienations sought to be cancelled or to be declared invalid and ineffective by the suits which have given rise to these appeals were admittedly, or on the evidence recorded by the Court below and not challenged before me, made by female bhumidhars belonging to one or the other of the categories mentioned in the answers of the Full Bench. In view of the answers it is clear and is also conceded before me by the learned counsel for the appellants that the appeals have to be dismissed.
49. The appeals are accordingly dismissed but in the circumstances of the case parties to these appeals will bear their own costs in all the Courts.