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Shri Kishan Singh Vs. Babu Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2436 of 1965
Judge
Reported inAIR1973All196
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 60; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 172 and 172(2)
AppellantShri Kishan Singh
RespondentBabu Singh
Appellant AdvocateD. Sanyal and ;Ramashankar, Advs.
Respondent AdvocateB. Dayal Agarwala, Adv.
DispositionAppeal dismissed
Cases ReferredBaijnath v. Lakshmi Narain
Excerpt:
.....widow- acquiring bhumidari rights by widow not contemplated by section 172 - succession of widow's death governed by section 172 (2) (b). - - the assistant director of consolidation held that padam kuer bad been in possession of the plots in dispute and had acquired bhumidhari sanads......and sessions judge, mathura. respondent decree-holder babu singh had advanced some loan to smt. padam kuer and on her death a decree was obtained against the assets of smt. padam kuer deceased, in the hands of respondent kishan singh. in execution of the decree the decree-holder respondent got the bhumidhari plots attached. appellant kishan singh then filed an objection and denied that the plots were the assets of the deceased padam kuer. the trial court allowed the objection but in appeal the lower appellate court allowed the, appeal and dismissed the objection holding that the property was liable to be attached as shown in the decree as the assets of smt. padam kuer, hence this second execution decree appeal. 2. it is not disputed that the plots originally belonged to doongar singh,.....
Judgment:

J.S. Trivedi, J.

1. This second execution decree appeal is directed against the judgment and decree of Temporary Civil and Sessions Judge, Mathura. Respondent Decree-holder Babu Singh had advanced some loan to Smt. Padam Kuer and on her death a decree was obtained against the assets of Smt. Padam Kuer deceased, in the hands of respondent Kishan Singh. In execution of the decree the decree-holder respondent got the bhumidhari plots attached. Appellant Kishan Singh then filed an objection and denied that the plots were the assets of the deceased Padam Kuer. The trial Court allowed the objection but in appeal the lower appellate Court allowed the, appeal and dismissed the objection holding that the property was liable to be attached as shown in the decree as the assets of Smt. Padam Kuer, hence this second execution decree appeal.

2. It is not disputed that the plots originally belonged to Doongar Singh, husband of Smt. Padam Kuer. On the death, of Doongar Singh succession was claimed by Kishan Singh as the adopted son of Doongar Singh. Smt. Padam Kuer on the other hand claimed succession denying that Kishan Singh was the adopted son of Doongar Singh. A suit under Section 59 of the U. P. Tenancy Act for a declaration was also filed by Kishan Singh. That suit was finally decreed by the learned Commissioner and the second appeal was dismissed in the year 1954 with the result that the finding that Kishan Singh was the adopted son became final. Sometime afterwards the village was notified under the Consolidation of Holdings Act and the dispute again arose in proceedings under the said Act. The Assistant Director of Consolidation held that Padam Kuer bad been in possession of the plots in dispute and had acquired bhumidhari sanads.

The Assistant Director of Consolidation consequently upheld the objection of Padam Kuer and rejected the claim of Kishan Singh on the basis of possession and acquisition of bhumidhari sanad. A writ petition against the order of the Assistant Director of Consolidation was dismissed by this Court on 3-11-58 (Hon'ble James, J.). Smt. Padam Kuer died sometime after 1959, when the decree-holder in execution of his decree sought to execute the decree against the bhumidhari plots in the hands of Kishan Singh as assets of Smt. Padam Kuer, Kishan Singh filed objection under Section 47 of the Civil Procedure Code. The executing Court allowed the objection. In appeal the objection was dismissed by the lower appellate Court.

3. Learned counsel for the judgment-debtor Kishan Singh has contended that under Section 172 (2) (b) of the Zamindari Abolition and Land Reforms Act the property held by Smt. Padam Kuer was as a Hindu widow and Kishan Singh on the death of Padam Kuer did not succeed as an heir of Padam Kuer but as an heir of the last male-holder. His contention is that the property in his hands could not be termed to be the assets of the deceased Padam Kuer. On the other hand learned counsel for the, respondent has contended that Padam Kuer having acquired bhumidhari rights and having been recognised by the Consolidation authorities as owner of the property, the property, after her death in the hands of Kishan Singh was an asset of the deceased Padam Kuer. The contention of the learned counsel for the respondent has force. The Consolidation Courts after the final adjudication of the title by a competent Court were not competent to decide the title otherwise than the final decision of the competent Court, but the Consolidation Courts were quite competent to hold that irrespective of the fact that Kishan Singh was the adopted son, Padam Kuer having remained in possession acquired title to the property and having acquired bhumidhari sanad acquired full right in the land in dispute.

The finding of the Consolidation authorities holding that Padam Kuer by remaining in exclusive possession and acquiring bhumidhari sanad had a preferential title against Kishan Singh cannot be challenged at this stage and this appeal has to be dismissed on the short finding that Padam Kuer in the lifetime of Kishan Singh had acquired full title to the property and on her death Kishan Singh could only succeed through her and the property in his hand could not be anything but the asset of Padam Kuer.

4. The contention of the learned counsel for the appellant on the facts of the present case will also not entitle him to contend that the property in his hand is not the assets of the deceased Padam Kuer. Section 172 (2) (b) reads as under:--

'172 (2) Where a bhumidhar or sirdar who has before the date of vesting inherited an 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 of half-sister being the daughter of the same father as the deceased- (b) dies, abandons, or surrenders and in the case of a widow, widow of a male lineal descendant in the male line of descent, mother, father's mother, marries, such bhumidhar or sirdar on the date immediately be-fore the said date held the holding otherwise than as an intermediary or tenant, referred to in Clause (a), the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with theprovisions of Section 171) of the last male tenant.'

5. Under the aforesaid section inheritance to a holding by a widow will be governed by Section 171. The section contemplates derogation of title by inheritance. A bhumidhari title could be acquired by inheritance and acquisition. Section 172 only contemplates succession by inheritance and not succession by acquisition of any interest by the widow. In cases where the widow acquires bhumidhari sanad under the Tenant's Acquisition of Privileges Act the succession to such bhumidhari is not contemplated by Section 172 (2) (b) of the Zamindari Abolition Act

6. Learned counsel for the appellant has contended that even where the widow, acquired bhumidhari sanad the plot in her possession shall continue to be held by her as a widow's estate and succession on her death would be through the last male holder. [ am not prepared to accept this contention for two reasons. Firstly, the property held by the widow Padam Kuer was sirdari land and could not be sold in execution of any decree and secondly, the bhumidhari rights acquired by her are new rights and there is no bar to a widow acquiring any property and becoming a line of descent in respect of that property. Baijnath v. Lakshmi Narain, 1971 All LJ 194 = (AIR 1971 All 398) on which learned counsel for the appellant placed his reliance also supports the respondent.

7. It is not disputed in the instant case that bhumidhari was acquired by Padam Kuer. The succession on her death, therefore, would not be governed by Section 172 (2) (b) and the property in the hands of Kishan Singh will continue to have the effect of the assets of Padam Kuer.

8. This appeal, therefore, has no force and is accordingly dismissed with costs. The stay orders, if any, shall stand vacated.


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