N.D. Ojha, J.
1. These two writ petitions are connected and are, therefore being decided by a common judgment. The village where the land in dispute is situate was brought under consolidation operations. In the Basic year the name of Smt Kashmira, petitioner in writ petition No. 7800 of 1971 and respondent No. 4 in writ petition No. 8295 of 1971, was recorded along with the name of Harbansh Singh who is respondent No. 2 in the first writ petition and the petitioner in the second one. An objection was filed by Harbansh Singh claiming to the exclusive tenure holder of the land in dispute. According to him, the name of Smt. Kashmira was wrongly recorded in the village papers. A pedigree was set up which was not disputed before the Consolidation Authorities. One Sheodutta Singh had three sons Phulgen, Mata Dayal and Hardeo. Phulgen had a son Ganga Singh whose widow is Smt. Kashmira. Harbansh is the son of Mata 'Dayal. Hardeo died issueless. The findings of fact as recorded by the consolidation authorities are that Phulgen died in 1928, Hardeo in 1931, Ganga Singh in 1943 and Mata Dayal in 1946. The case of Harbansh in his objection was that the land in dispute was ancestral and Ganga Singh the husband of Smt. Kashmira, died in 1934 i.e. before the commencement of the Hindu Women's Rights to Property Act, 1937, and that in this view of the matter Smt. Kashmira did not have any interest in the said land. On the other hand, the case of Smt. Kashmira was that her husband died in 1943, i.e. after the coming into force of the Hindu Women's Rights to Property Act and consequently she had a half share in the land in dispute. The plea raised by Smt. Kashmira was accepted by the Consolidation Officer and the Settlement Officer (Consolidation). It was held that Smt. Kashmira and Harbansh Singh both were co-tenure holders having a half share each. Harbansh challenged these orders 'before the Deputy Director of Consolidation in revision. The Deputy Director of Consolidation, even though he too came to the conclusion that Ganga Singh had died in 1943 and Smt. Kashmira inherited the interest left by her husband, held that on the death of Hardeo, who died issueless, his one-third share devolved on Mata Dayal, father of Harbansh, alone inasmuch as his other brother Phulgen had predeceased Hardeo According to the Deputy Director of Consolidation, Mata Dayal being the brother of Hardeo was nearer in relationship than Ganga Singh who was the nephew of Hardeo and consequently Mata Dayal excluded Ganga Singh from inheritance.
2. In writ petition No. 7800 of 1971 Smt. Kashmira has prayed for the quashing of the order of the DeputyDirector of Consolidation holding that she was entitled to only a one-third share in place of half as held by the other two consolidation authorities, whereas Harbansh Singh in his writ petition has prayed for the quashing of all the orders of the consolidation authorities on the ground that his case that Ganga Singh had died in 1934 was correct and he alone was entitled to the property. It was urged by learned counsel for Harbansh Singh that the finding recorded by the consolidation authorities that Ganga Singh died in 1943, i.e., after the coming into force of the Hindu Women's Rights to Property Act, was erroneous. Harbansh Singh has filed as Annexure 'A' to his writ petition true copy of Khewat for the year 1349 Fasli corresponding to 1941-42 A. D. which indicates that by means of an order dated 25th September, 1941, Smt. Kashmira's name was mutated in place of her deceased husband Ganga Singh. On its basis it was urged that the finding of the consolidation authorities that Ganga Singh died in 1943 was apparently erroneous because if he had died in 1943 the name of Smt. Kashmira could not have been mutated in his place two years earlier in 1941. This document admittedly was not filed before the consolidation authorities and Harbansh Singh has filed this document in this Court as fresh evidence. The document is not of such a nature which could be said not to have been available to Harbansh Singh before the institution of the writ petition and cannot, therefore, toe permitted to be filed as fresh evidence for the first time in the writ petition. Even otherwise this document does not in any way establish the case of Harbansh Singh that the death of Ganga Singh had taken place in 1934. The copy of the Khewat aforesaid does not give the date of death of Ganga Singh. The date of the order of mutation is shown as 25-9-1941 and it can be presumed that the death may have taken place some time near-about the said date. In this context even if Ganga Singh is taken to have died in 1941 or even in 1940, the position in law would in no way be different because in either event it would be a case where Ganga Singh died after the coming into force of the Hindu Women's Rights to Property Act. It having been found that the copy of the khewat of 1349 Fasli is of no assistance to Harbansh Singh, in my opinion, the plea raised by his learned counsel in regard to the merits of the finding of the consolidation authorities cannot be sustained. The finding as to whether Ganga Singh died before 1937 or after 1937 is essentially a finding of fact based on appraisal of evidence and cannot be challenged in a writ petition. In this view of the matter the writ petition filed by Harbansh Singh must fail.
3. In support of the writ petition filed by Smt. Kashmira it was urged by her learned counsel that an the finding recorded by the consolidation authorities that the land in dispute was ancestral property and the Deputy Director of Consolidation having himself held that all the members of the family were living together and no partition had taken place, there was no escape from the conclusion that the share of Smt. Kashmira was half and the Deputy Director of Consolidation committed a manifest error of law in holding that her share was only one-third. Having heard learned counsel for the parties on this point I am of opinion that the submission made by learned counsel for Smt. Kashmira is well founded. It is the admitted case of the parties that the land in dispute constituted fixed rate tenancy land inheritance to it was governed by personal law and not 'by the various tenancy Acts before the coming into force of the U. P. Zamindari Abolition and Land Reforms Act. The personal law which is applicable to the parties is the Hindu law. Not only was it the case of Harbansh Singh before the consolidation authorities that the parties were members of a Joint Hindu family, it is his case even in paragraph 4 of the writ petition where it has specifically been stated that an objection was filed by the petitioner to the effect that Ganga Singh died in 1934 as a member of a joint Hindu family. The case of Harbansh Singh, therefore, consistently has been that the property in dispute was ancestral property and that the various members of the family including Ganga Singh constituted a joint Hindu family. It is in this context that it has to be seen as to what was the share of Smt. Kashmira, at the time when her husband died after the coming into force of the Hindu Women's Rights to Property Act. It has not been disputed before me that the parties are governed by the Mitakshara School of Hindu law. The Mitakshara recognises two modes of devolution of property, namely, survivorship and succession. The rule of survivorship applies to joint family property whereas the rules of succession apply to property held in absolute severally by the last owner, vide paragraph 24 of Mulla's Hindu Law (14th Edn.). It being the case of Harbansh Singh himself that the land in dispute constituted joint family property it is the law of survivorship which will be applicable and the rules of succession shall not apply. In paragraph 214 of the same book is to tbe found the rule of Hindu Law in regard to formation of coparcenary in the following terms:--
'The conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within fourdegrees counting from and inclusive of such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals, such as brothers, uncles and nephews, cousins, etc.'
On this principle Sheo Dutta Singh and his three sons Phulgen, Mata Dayal and Hardeo constituted a coparcenary and on the death of Sheo Dutta Singh and subsequently of Phulgen in 1928 Ganga Singh son of Phulgen constituted the coparcenary with Mata Dayal and Hardeo the two surviving sons of Sheo Dutta Singh. In 1931 when Hardeo died there was therefore, a coparcenary of a joint Hindu family. In State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330 it was held that a coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father ,as regards ancestral properties of latter. The incidents of coparceners his under the Mitakshara Law are; first, the lineal male descendants of a person up to the third generation acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights 'by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity without the concurrence of the coparceners: and sixthly, that the interest of a deceased member lapses on his death to the survivors.
4. The line of succession among sapindas under the Mitakshara School is contained in paragraph 43 of Mulla's Hindu Law. This obviously would not apply to a case where the rule of survivorship would apply. As already noticed above, in regard to ancestral property devolution is by survivorship and not by succession. If the rule of succession is to be applied of course a brother would exclude a brother's son the former being nearer than the latter. The Deputy Director of Consolidation appears to have applied this rule of succession to the facts of the instant case and in doing so he clearly committed a manifest error of law. Applying the correct principle of law to the facts of the case it was the rule of survivorship which applied on the death of Hardeo in 1931. Applying that rule: there can be no escape from the conclusion that had Ganga Singh claimed a partition he would have been entitled to ahalf share. On his death it is this interest which was held by Ganga Singh that devolved on Smt. Kashmira in view of the provisions of the Hindu Women's Rights to Property Act. She was clearly entitled to a half share in the property in dispute and had rightly been given that share by the Consolidation Officer and the Settlement Officer (Consolidation). The order of the Deputy Director of Consolidation cannot be sustained, being manifestly erroneous in law.
5. In the result, writ petition No. 7800 of 1971 filed by Smt. Kashmira is allowed and the order of the Deputy Director of Consolidation dated 18th August, 1971, is quashed. The other writ petition No. 8295 of 1971 filed by Harbansh Singh is dismissed. In the circumstances of the case the parties will bear their own costs in each of these two writ petitions.