G.C. Mathur, J.
1. The relationship between the parties appears from the following pedigree table:
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Nathu Ram Tega Lal Budha Smt. Sita Smt. Kamla
Jamuna = Smt. Bhagwati.
2. Tulsi owned some 'Sir' and Khud-Kasht land and some tenancy land. Upon his death his three sons Nathu Ram. Tega Lal and Budha inherited these each getting a one third share therein. In 1949 Tega Lal. Budha and Smt. Sita were murdered. Tega Lal's one third share was inherited by his widow Smt. Bhagwati. Upon the death of Nathu Ram his one third share was inherited by his son Jamuna. The dispute relates to the one third share of Budha.
3. The 'Sir' and 'Khud-Kast' land as well as the tenancy land, however, remained joint. Upon the abolition of Zamindari the 'Sir' and 'Khud-Kast' became Bhumidhari and the tenancy became 'sirdari'. Jumuna filed two suits under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act for partition of the joint holdings. One suit was in respect of the Bhumidhari holdings and the other was in respect of the 'sirdari' holdings. Jamuna claimed a two third share in both the holdings. The suit was resisted by Smt. Bhagwati the widow of Tega Lal. She set up a case that Nathu Ram father of Jamuna had murdered Tega Lal, Budha and Smt. Sita and. therefore, he and his son Jamuna were disqualified from inheriting the share of Budha. She asserted that Jamuna's share was only one third which he had inherited from Nathu Ram. The two suits were connected and tried together. All the courts below have proceeded on the basis that upon the murder of Budha in 1949 his one third share went to his sister Smt. Kamla. Smt. Kamla died in 1954. The trial Court held that it was not proved that Nathu Ram had murdered Budha and, therefore.' Nathu Ram or Jamuna were not disqualified from inheritance. It further held that on the death of Smt. Kamla. Jamuna being the brother's son of the last male holder Budha. succeeded to her. Thus Jamuna was entitled to two third snare. The trial Court accordingly decreed the suits for a two third share. Against the judgments and decrees of the trial Court, Smt. Bhagwati preferred appeals. The Additional Commissioner upheld all the findings of the trial Court and dismissed the appeals.
4. Smt. Bhagwati then preferred two second appeals before the Board of Revenue. The Board held that, Nathu Ram had committed the murder of Budha. Tega Lal and Smt. Sita. It further held that on the death of Smt. Kamla her share in the Bhumidhari plots as well as the Sirdari plots would have devolved upon Jamuna but for the fact that Jamuna was disqualified from succession under Hindu law as he had succeeded. Nathu Ram who was a murderer. The Board of Revenue was of the view that the tenancy law was subject to the general provisions of the Hindu Law unless there was any specific provision to the contrary. It further held that the share of Smt. Kamla devolved upon Smt. Bhagwati and, therefore. Smt. Bhagwati was entitled to two third share. The Board accordingly allowed both the appeals and modified the judgments and decrees of the trial and appellate Court and decreed the suits only for a one third share. Against the -judgment of the Board of Revenue a writ petition was filed by Jamuna.
5. At the hearing of the writ petition a preliminary objection was raised on behalf of Smt. Bhagwati thatone writ petition was not maintainable against the judgment of the Board of Revenue in two suits. Upon this, learned counsel for Jamuna made a statement that he pressed the writ petition only in respect of the Bhumidhari plots and not in respect of the Sirdari plots. The writ petition was accordinaly confined to Bhumidhari plots. The learned Single Judge proceeded on the assumption that Smt. Kamla acquired Budha's one third share after his death in her own right and not by succession. He accordingly held that upon the death of Smt. Kamla, the succession would be governed by Section 174 of the U.P. Zamindari Abolition and Land Reforms. Act and that neither Smt. Bhagwati nor Jamuna were the heirs of Kamla under that section. He further held that since Smt. Kamla died heirless her share would go in equal shares to the co-tenure-holders. namely. Jamuna and. Smt. Bhagwati. On this basis, Jamuna end Smt. Bhagwati were held entitled to a half share each. The learned Single Judge in this view allowed the writ petition, quashed the judgment of the Board of Revenue so far as Bhumidhari plots were concerned and directed the Board to decide the appeal relating to Bhumidhari rights in the light of his decision. Against the judgment of the learned Single Judge Jamuna has preferred this appeal.
6. Before considering the merits of the appeal, we would like to dispose of two preliminary points. One of the grounds raised in appeal is that the statement of Jamuna's counsel at the hearing of the writ petition that he did not press the claim in respect of the 'sirdari' plots was made without authority and was prejudicial to the interest of the appellant. The learned counsel for the appellant submitted that one-writ petition was maintainable against the common judgment of the Board of Revenue in the two second appeals and, therefore, the erroneous concession of law made by the appellant's counsel at the hearing of the writ petition, should not be held binding on the appellant. In view of the decision of a Full Bench of this Court in Mall Singh v. Smt. Laksha Kumari Khaitan, 1968 All LJ 210 (FB), one writ petition was maintainable against the judgment of the Board of Revenue in the two suits. In the counter affidavit filed to the writ petition, no objection as to the maintainability of one writ petition wasraised. The objection was raised for the first time at the hearing of the writ petition. At that stage the learned counsel for the appellant, without taking any instructions from the appellant, made a statement that he did not press the writ petition in respect of the 'Sirdari' rights. This statement was made on the erroneous view of the law that one writ petition was not maintainable in respect of the judgment in the two suits. Since no objection had been raised in the counter affidavit, the learned counsel for the appellant had no opportunity of contacting his client and obtaining his instructions as to whether he would pay one more set of Court fee and if not in respect of which property he would elect to press the writ petition. In these circumstances, we are of opinion that the erroneous concession made by the learned counsel for the appellant should not be held binding on the appellant. We have 'accordingly permitted the learned counsel for the appellant to press this appeal in respect of the suit for division of the 'Sidari' holding as well.
7. An application has been filed under Order 41, Rule 2 of the Code of Civil Procedure by the appellant for permission to add additional grounds to the memorandum of special appeal. The main ground sought to be added is that the Board of Revenue has erred in holding that Nathu Ram had murdered Budha as there was no evidence to support such a finding. Before the trial Court a copy of the judgment of the Court of Session where Nathu Ram was tried for the murder of Tega Lal. Budha end Smt. Sita, and was convicted for the same and sentenced to death, was filed. Apart from this no other evidence was led in support of Smt. Bhagwati's assertion that Nathu Ram had murdered these persons. Relying upon the decision of the Supreme Court in Anil Behari Ghosh v. Smt. Latika Bala Dassi : 2SCR270 , the trial Court held that the judgment of the criminal court was not relevant to establish the fact that Nathu Ram had murdered his brothers and sisters. Since there was no other evidence on the question, the trial Court held that it was not proved that Nathu Ram had committed the murders. The Additional Commissioner, for the same reasons, also held that Nathu Ram could not be held to be a murderer. The Board of Revenue, however, reversed this finding. It has referred to the judgment of the Criminal Court but has not referred to the decision of the Supreme Court. It has based its finding merely on the fact that in her written statement Smt. Bhagwati had asserted that Nathu Ram had murdered Tega Lal, Budha and Smt. Sita and that there was no denial of this assertion by Jamuna. In the writ petition, no specific ground was raised regarding the finding of the Board of Revenue that Nethu Rarn was the murderer of Tega Lal Budha and Smt. Sita. The learned Single Judge has not referred at all to the question of the murder or its effect on the rights of the parties. He has based his decision entirely on the assumption, which in our opinion is not justified that under Section 174 neither Jamuna nor Smt. Bhagwati were the heirs of Smt. Kamla. In the grounds of appeal also no ground has been raised regarding this question apparently for the reason that the learned Single Judge has not based his decision on the finding of the Board of Revenue. We do not consider it necessary to allow the appellant to raise this further question as in our opinion the question can be reagitated, if necessary, before the Board of Revenue when the second appeals are re-heard.
8. We now come to the merits of the appeal. The learned Single Judge has proceeded on the assumption that Smt. Kamla had acquired the one third share of Budha in her own right by prescription. We have gone through the judgments of the revenue Courts, and we do not find anything there to justify this assumption. The learned Single Judge has further held that succession to Smt. Kamla would be governed by Section 174 of the U.P. Zamindari Abolition and Land Reforms Act and that under this section neither Smt. Bhagwati nor Jamuna are heirs of Smt. Kamla. The learned Single Judge is not right in holding that Jamuna is not an heir of Smt. Kamla under Section 174. Under Section 174 brother's son is an heir and Jamuna being a brother's son of Kamla would be the heir under Section 174. That being so the further view of the learned Single Judge that Smt. Kamla died without leaving any heir and, therefore, the two co-tenure holders namely Smt. Bhagwati and Jamuna would succeed to Smt. Kamla's share by survivorship under Section 175 is also erroneous. For these reasons, the judgment of the learned Single Judge cannot be sustained.
9. We have carefully examined the judgment of the Board of Revenue and we find that it suffers from manifest errors of law.
10. According to the Board, succession opened both to the Bhumidhari and Sirdari rights on the death of Smt. Kamla in 1954, that normally Jamuna her brother's son, would have succeeded to her but that Jamuna was disqualified from succession as he was theson of a murderer. It has relied upon the decision of the Privy Council in Kenchaya Kom Sanyallappa Hosmani v. Girimalappa Channappa Samasagar. AIR 1924 PC 209 which lays down that a murderer and anyone claiming through him, is excluded from succeeding to theestate of the victim. The Privy Council based this rule on the principles of equity, justice and good conscience. In our opinion, this rule is not applicable to the present case. In the first place, succession in the present case, is not to the estate of Budha, the victim of the murder but to the estate of Smt. Kamla. The rule cannot apply to succession to the estate of Smt. Kamla. In the Second place, succession is governed by the statutory provisions contained in the U.P. Zamindari Abolition and Land Reforms Act and the law of succession laid down therein cannot be altered orchanged by any rule or principles not contained in the Statute itself. When the legislature laid down a particular line of succession and did not provide for the exclusion of any one in that line on any ground, then it is not permissible to engraft exceptions or exclusions on the ground of equity, justice or good conscience. Rules of equity, justice and good conscience are applicable when the matter is not governed by statutory provisions. The Board has observed that the principles of Hindu Law as enunciated in Sections 25 and 27 of the Hindu Succession Act, 1956 apply to succession under the U.P. Zamindari Abolition and Land Reforms Act. This is not correct. The provisions of Sections 25 and 27 apply only to succession under the Hindu Succession Act and not to succession under other enactments. Further, the Hindu Succession Act which was enacted in 1956, was not even in existence in 1954 when succession in the present case opened.
11. The Board committed another manifest error of law when it said that the property of Smt. Kamla would devolve on Smt. Bhagwati as Jamuna was disqualified. Even in the absence Jamuna. Smt. Bhagwati could not succeed to the property of Smt. Kamla. Smt. Bhagwati is the widow of Smt. Kamla's brother and under no provision of the U.P. Zamindari Abolition and Land Reforms Act is she an heir of Smt. Kamla.
12. The appeal is accordingly allowed, the judgment of the learned Single Judge is modified and the judgment of the Board allowing the two second appeals is quashed. The Board will after giving the parties a fresh opportunity of being heard, decide the second appeals in accordance with law andin the light of the observations made in this judgment. The parties will bear their own costs of this appeal.