Smt. Raj Kumari And Ors. vs Deputy Dir. Consolidation And 4 ...
2013 Latest Caselaw 5355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Judgment reserved on 20.8.2013
 
Delivered on 3.9.2013
 
Court No. - 21
 

 
Case :- CONSOLIDATION No. - 478 of 2007
 

 
Petitioner :- Smt. Raj Kumari And Ors.
 
Respondent :- Deputy Dir. Consolidation And 4 Ors.
 
Counsel for Petitioner :- N.P.Ojha,S.K.Tiwari
 
Counsel for Respondent :- C.S.C.,V.K.S.Chauhan,Vijai Bahadur Verma
 

 
Hon'ble Sibghat Ullah Khan,J.

Order dated 20.8.2013 passed in this writ petition on the order-sheet is quoted below:-

"Heard Sri S.K. Tiwari, learned counsel for the petitioners and Sri Vijai Bahadur Verma, learned counsel for contesting respondent.

Judgement reserved.

Sri Tiwari has placed on record the copy of decision in Original Suit No. 320 of 1993 decided by Additional Civil Judge (Junior Division), Faizabad on 30.11.2012. Sri Verma, learned counsel for contesting respondents states that against the said judgement appeal is pending. Writ petition was dismissed on merit on 18.8.2008, however, the said order was set aside in review through order dated 20.5.2013 and through the said order writ petition was directed to be heard again. Hence, today arguments have been heard on the merit of the writ petition."

This writ petition is directed against judgment and order dated 28.6.2007 passed by DDC, Faizabad in Revision Nos. 591/484/235, Smt. Sarswati Devi and others vs. Saheb Singh. Through the said order (Annexure I) revision was dismissed. The revision was directed against order dated 18.1.1994 passed in Appeal No.3927 by the SOC which in turn was directed against an alleged order dated 10.9.1993 passed by C.O., Maqbra rejecting objections of Saheb Singh predecessor-in-interest of opposite parties no. 3 to 5 under Section 9-A(2) of U.P.C.H. Act as barred by time. Case number is shown to be only T.B. (R.B. Singh vs. Sarswati).

Annexure 2 to the writ petition is order of C.O. Final Record, Faizabad dated 02.11.1994 passed in Case No.238, under Section 12 of U.P.C.H. Act Raj Kumari Devi vs. Sarswati Devi directing that over Chak Nos. 1071 and 1028 name of Sarswati Devi should be expunged and name of Raj Kumari Devi should be entered on the basis of registered sale deed dated 20.11.1992 (Smt. Sarswati Devi through the said registered sale deed sold her property to her daughter Smt. Raj Kumari Devi). It is mentioned in the said order that Saheb Singh had filed objections by he did not appear thereafter. Both daughter and mother were petitioners in this writ petition. Now Smt. Sarsawti Devi petitioner no.2 has died and is survived only by petitioner no.1.

It is mentioned in the impugned order passed by the DDC that appeal was filed on 2.12.1993 and the dispute related to plot nos. 1071 and 1028. It is further mentioned that in the appeal parties filed compromise and Smt. Sarswati Devi through the said compromise conceded that her name might be expunged and name of Saheb Singh since deceased and survived by respondents no. 3 to 5 of this writ petition the only contesting respondents be entered. In the revision it was contended by the petitioners that no compromise had been entered into.

Learned counsel for petitioner has argued that on 10.9.1993 no order was passed and appeal was filed against a non existent order. Learned counsel for contesting respondents has argued that the order was in fact passed rejecting Saheb Singh's objections under Section 9-A (2) of U.P.C.H. Act as barred by time. Copy of objections is Annexure C.A-5 to the counter affidavit. It does not bear any date. However in para 4 of the objections reference has been made to the sale deed by Smt. Sarswati Devi to Smt. Raj Kumari which was executed on 20.11.1992 hence objections must have been filed thereafter.

In the impugned order by the revisional court it is mentioned that when revision was filed, Smt. Sarswati Devi had neither signed the memorandum of revision nor the 'Vakalatnama'. She signed the 'Vakalatnama' after more than one year of filing of the revision. Smt. Sarswati Devi filed an application on 7.10.1995 seeking permission to sign memorandum of revision. The application was allowed on payment of Rs.100/- cost and thereafter Smt. Sarswati Devi signed the 'Vakalatnama'. The revisional court held that as Smt. Sarswati Devi had signed the 'Vakalatnama' much later hence there was no occasion to condone the delay. Accordingly without entering into the merit of the case revision was dismissed.

Even if revision was to be dismissed on behalf of Smt. Sarswati Devi it ought to have been considered on behalf of Smt. Raj Kumari Devi. Even the appeal had been filed by the other side after about three months. Accordingly the delay in filing revision which was also filed after about three months of passing of the order of SOC by Smt. Raj Kumari Devi also deserved to be condoned. This aspect has not been considered by the lower revisional court. However the matter is quite old, hence I directed learned counsel for both parties to address the Court on merit of the case and learned counsel for both the parties fully argued the petition on the merit of the case.

As Smt. Sarswati Devi had already sold the property through registered sale deed dated 20.11.1992 hence even if she entered into some compromise, thereafter, it was utterly meaningless. Only such admissions are binding or have got any evidentiary value which are made during continuance of the interest as mentioned in Section 18 of Evidence Act which is quoted below:-

"18. .......................................................................

Statements made by-

(1)Party interested in subject-matter.- persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or

.....................................................................

are admissions, if they are made during the continuance of the interest of the persons making the statements."

The main case of Saheb Singh father of respondents no. 3 to 5 was that Smt. Sarswati Devi was widow of Sri Harihar Singh, real brother of Saheb Singh and Sri Harihar Singh had executed an unregistered Will on 3.11.1955 mentioning therein that Smt. Sarswati Devi after his death would be having life interest in the property. In this regard it is not disputed that after the death of her husband the name of Smt. Sarswati Devi was entered into revenue record as Sirdar/Bhumidhar. It is also undisputed that earlier also consolidation had taken place (which started through notification dated 3.8.1980 issued under Section 4 of U.P.C.H. Act) in which no objections were filed by Saheb Singh. Firstly the claim was clearly barred by Section 49 of UPCH Act. Secondly by virtue of Section 14 of Hindu Succession Act, even if it is assumed that Will was executed and Smt. Sarswati Devi had a limited estate it stood enlarged to full-fledged title after passing of Hindu Succession Act, 1956. In this regard the argument of learned counsel for the contesting respondents is that case of Will is expressly excluded by Section 14(2) of Hindu Succession Act. The entire Section is quoted below:-

"14.  Property of a female Hindu to be her absolute property.-(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation:- In this sub-section "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2)  Nothing contained in sub-section (1) shall apply to any property acquired   by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

The leading authority of the Supreme Court interpreting the said Section is reported in V. Tulasamma and Ors. vs. Sesha Reddy AIR 1977 SC 1944. In this regard reference may also be made to Sellammal and Ors. v. Nallammal AIR 1977 SC 1265, Vijay Pal Singh and another v. Deputy Director of Consolidation and others AIR 1996 SC 146 and Ram Avtar and others v. Ram Dhani and others AIR 1997 SC 107. The last two authorities are under U.P.C.H. Act & U.P.Z.A. and L.R. Act.

The following authorities cited by learned counsel for petitioner took the same view:-

1. Smt. Beni Bai vs. Raghubir Prasad AIR 1999 (36) ALR 481: AIR 1999 SC 1147: 1999 (3) SCC 234.

2. Smt. Vidya vs. Nand Ram @ Asoop Ram 2001 (19) LCD 507 : 2001 (10) SCC 747.

In both these cases limited rights had been given to the widow under Will.

As Smt. Sarswati Devi the widow had already got a right of maintenance hence Section 14(2) would not apply. It applies only when there is no pre-existing right.

I am not entering into the controversy as to whether the order against which the revision was filed was actually passed by the C.O. or it was a forged order as noticed in the earlier two orders passed on review petition in this writ petition dated 27.4.2010 and 20.5.2013.

The alleged Will copy of which has been annexed to the counter affidavit does not mention either plot number or nature of right. It only mentions movable and immovable property including house and khet (agricultural land). If the land had been Sir or Khudkasht by virtue of Section 11 of U.P.Z.A. L.R. Act, name of Smt. Sarswati Devi would have been entered as assami in the revenue record, however it was entered as Sirdar/Bhumidhar. No objection was taken by Saheb Singh for forty years (1952 to 1992). Accordingly execution of the Will cannot be said to have been proved.

Accordingly writ petition is allowed. Impugned order passed by DDC and SOC are set aside. The name of petitioner no.1 Raj Kumari Devi shall be recorded/continued to be recorded in the revenue records over the land in dispute. It is declared that Saheb Singh or his successors interest respondents no. 3 to 5 have got no right title or interest over the land in dispute.

3.9.2013/Ravi