Ketki Devi vs Laxman & Ors.

D.C. Srivastava, J.—This is second appeal by defendant No. 1 Srnt. Ketki Devi.

The brief facts are that the plaintiff Laxman filed a suit against the defendants for cancellation of the gift deed dated 5th January, 1970 executed by Fateh Singh in favour of defendant No. 1 Smt. Kiran Devi alias Ketki, appellant, alias Kailashi, Fateh Singh was the brother of the plaintiff Laxman Singh. Lala Ram was the son of Fateh Singh. Wife of Lala Ram married with defendant No. 2 Roshan Lal. Lala Ram died in 1955. It was alleged that defendant No. 1 in collusion with defendant No. 2, with a view to grab the land of Fateh Singh got a forged and fictitious gift deed prepared on 5th January, 1970. It was alleged that the gift deed was never executed by Fateh Singh and that the said gift deed was not binding upon the plaintiff. The allegation of fraud in obtaining the gift deed was also made.

Defendant No. 1 contested the suit pleading that the gift deed was executed by Fateh Singh on 5th January, 1970 in her favour. It was denied that the defendant No. 1 married with defendant No. 2. It was also denied that Lala Ram died in!955. It was alleged that Fateh Singh had 1/3 share in Sirdars land which was the subjectmatter of the gift deed. Fateh Singh applied before the Tahsildar for declaration of bhumidhari rights and deposited 10 times annual rent on 28th November, 1969. Bhumidhari sanad was issued on 29th June, 1970 in favour of Fateh Singh. Fateh Singh was thus entitled to execute the gift deed of his 1/3rd share, the first deed was, therefore, said to be valid. In the year 1973 Fateh Singh died whereupon defendant No. 1 applied for partition of his 1/3rd share, which was decreed by the revenue court on 21st January, 1981 and preliminary decree was passed. In those proceedings no objection was raised that the first deed is fraudulent, forged and fictitious.

The trial court found that the giftdeed was executed by Fateh Singh and he was entitled to execute the same because he became Bhumidhari and obtained bhumidhari Sanad. The suit was accordingly dismissed. In appeal, the lower appellate court partly allowing the appeal, set aside the impugned gift deed. It is, therefore this second appeal.

Crossobjection was also filed by Laxman.

I have heard the learned counsel for the parties in second appeal as well as in crossobjection.

Only one substantial question of law was formulate in this second appeal, namely, whether the lower appellate court is right in declaring the giftdeed as invalid without taking into consideration the date of death of the donor?

In the course of argument, no dispute was raised regarding the date of death of donor, namely, Fateh Singh. Consequently there appears some clerical error in formulating the only substantial question of law. The real substantial question of law is whether Fateh Singh became Bhumidhari by virtue of depositing 10 times rent from the date of deposit or from the date of declaration that he was Bhumidhari or from the date of grant of bhumidhari Sanad.

This Court at the time of admitting the appeal did not formulate any other substantial question of law. There is concluded findings by the two courts below that the giftdeed was duly executed by Fateh Singh and it was not obtained by fraud nor it was forged and fictitious document. This finding is based upon proper appreciation of evidence on record, hence it cannot be reversed or interferred in this second appeal.

As mentioned above, the only point for determination is whether Fateh Singh became Bhumidhar of the land which was subjectmatter of the giftdeed from the date of deposit of 10 times rent or from the date of declaration by the Assistant Collector or from the date of grant of bhumidhari Sanad (certificate).

The learned counsel for the respondents argued that there has been conflict on judicial opinion of this court on this point hence he suggested that the matter should be referred to larger Bench. I have considered the cases cited by the learned counsel for the parties. There can be no dispute that initially there was conflict of opinion of this Court on the above point but the said conflict has been set at rest, by the Supreme Court pronouncement in Ram Pyare v. Ram Narain 1985 RD. 120, and also by amending Act 21 of 1962 through which S. 137 of the U.P. Zarnindari Abolition and Land Reforms Act was amended. Those cases will be discussed in the following portion of the judgment. I do not feel any necessity to refer this question to larger Bench.

Before taking up discussion on legal aspects of the case, certain dates are material which have to be noted. The impugned gift deed was executed on 5th January, 1970. The donor Fateh Singh died in the year 1973. He moved an application for declaration of bhumidhari right on 28th November, 1969 and on the same day he deposited 10 times annual rent. Bhumidhari Sanad was issued on 19th June, 1970. The declaration by the Assistant Collector in favour of Fateh Singh was granted on 11th June, 1970. The Amending Act 21 of 1962 through which section 137 of the U.P. Zamindari Abolition and Land Reforms Act was amended, came into force in the year 1962. Sections 134 and 137 of the UP Z ALR Act, as they stood before amending Act of 1962 were as follows:

"134 (1). If a Sirdari belonging to the class mentioned in Cl. (a) of S. 131 pays or offers to pay to the credit of the State Government an amount equal to ten times the land revenue payable or deemed to be payable on the date of application for the land of which he is the Sirdar he shall, upon an application duly made in that behalf to an Assistant Collector, be entitled, with effect from the date on which the amount had been deposited to a declaration that he has acquired the rights mentioned in S. 137 in respect of such land......"

"Section 137 (1). If the application has been duly made and the Assistant Collector is satisfied that the applicant is entitled to the declaration mentioned in Section 134, he shall grant a certificate to that effect.

(2) Upon the grant of the certificate under subsection (1) the Sirdar shall from the date thereof (a) become and be deemed to be a Bhumidhar of the holding or the share in respect of which the certificate has been granted, and (b)..................."

There was some conflict of opinion in this court on the question whether the tenant depositing the amount equivalent to ten times the land revenue and obtaining a Bhumidhari certificate, obtained Bhumidhari rights from the date of deposit, or the date of declaration or the date of certificate. This conflict was resolved by the legislature through amending Act 21 of 1962, which amended Section 137 of the U.P. Zamindari Abolition and Land Reforms Act and provided that the words "from the date thereof were substituted by the words from the d ate on which the amount referred to in section 134 has been deposited.

14, Even before the amendment of 1962 came into force, there was no am biguity in S. 134 (1) of the U.P. ZALR Act inasmuch as it provided, inter alia, that the Sirdar shall upon an application duly made in that behalf to an Assistant Collector, be entitled, with effect from the date on which the amount had been deposited, to a declaration that he has acquired the rights mentioned in Section 137 in respect of such land. Thus the date of deposit of 10 times annual rent or revenue was the relevant date even prior to the Amending Act of 1962. There was, however, some confusion in view of S. 137(2) as it stood then, which provided that upon the grant of certificate under subsection (1) the Sirdar shall from the date thereof become and be deemed to be a bhumidhar. Il was this confusion whether the Sirdar shall become Bhumidhar from the date of declaration or from the date of grant of certificate which was clarified through the amending Act of 1962 which provided that the Sirdar shall become and be deemed to be a Bhumidhar from the date on which the amount referred to in S. 134 has been deposited. It is thus clear that after the amending Act of 1962 came into force the Sirdar on making an application for declaration and depositing 10 times land revenue shall be deemed to become Bhumidhar from the date of deposit of land revenue and the date of declaration and grant of Bhumidhari sanad were not considered lo be relevant and material. This Court in Niyaz Ahmad v. D.D.C., 1986 ACJ 248 took/similar view. In this case also the facts were identical to the facts before me. The Sirdar in that case deposited 10 times land revenue on 28th October, 1968, that is, after the enforcement of Amending Act of 1962. It was held that the depositor would be entitled to declaration of bhumidhari rights on the date of the deposit itself.

The Supreme Court in the case of Ram Pyare v. Ram Narain (supra) had also interpreted the complete nature of retrospective operation of amending Act 21 of 1962. It observed that unfortunately the amending Act, which in the case of certain amendments provided that the substituted words shall be deemed always to have been so substituted, did not so provide in the case of the amendment of S. 137 (2) of the U.P. ZALR Act. The result was that in cases where the amount had been deposited and a certificate obtained on different dates before the coming into force of the Amending Act of 1962, the position still was that the tenure holder acquired Bhumidhari rights with effect only from the date of issuance of the Bhumidhari certificate.

The Supreme Court thus interpreted the Amending Act of 1962 in the manner that where deposit of land revenue was made after the enforcement of Amending Act, the Sirdar will become Bhumidhar from the date of deposit and the date of declaration or the date of issuance of bhumidhari certificate are irrelevant but where the deposit was made before Amending Act of 1962 cam into force, Bhumidhari rights will accrue upon the Sirdar from the date of issuance of Bhumidhari certificate. There is then little scope for the contention that there exists still conflict of opinion of this Court on the point. Clear view of this court is to be found in the case of Niyaz Ahmad and others v. The Deputy Director of Consolidation, Varanasi and others (supra).

Coming to the facts of the case before me, the dates mentioned in the foregoing portion of the Judgment indicate that 10 time land revenue was deposited by Fateh Singh on 28th November, 1969. It was done after Amending Act of 1962 came into force. Declaration by Assistant Collector was made in 11th June, 1970 and Bhumidhari certificate was issued on 29th June, 1970. These two dates, namely, 11th June 1970 and 29th June, 1970 are irrelevant and Fateh Singh will be deemed to have become bhumidhar on 28th November, 1969. He executed the gift deed on 5th January, 1970 and on that date he was certainly bhumidhar. It was not the case that Fateh Singh died before the declaration was granted or bhumidhari sanad was issued to him. On the other hand he died in the year 1973 whereas Sanad was also issued to him on 29th June, 1970.There should, therefore, be no difficulty in holding that on 5th January, 1970 Fateh Singh was Bhumidhar and he was competent to execute the gift deed. The view taken to the contrary by the lower appellate court does not appear to be correct.

Since the controversy has been resolved by the Amending Act 21 of 1962 and also in view of interpretation in the case of Ram Pyare v. Ram Narain and others (supra) by the Supreme Court, there does not appear to be necessity of discussing in detail the other cases cited by the learned counsel for the parties. A passing reference of these cases is sufficient.

In the case of Smt. Phalwa and others v. Baba (1967) RD 304, it was held that the deed of gift should have been valid and effective deed even if the right was transferred before the grant of Sanad but after the deposit often times the rent. In the instant case the right was transferred after deposit had been made and so, the deed must be held to be valid. This case applies on all force to the facts of the case before me.

Both the parties placed reliance upon the Full Bench decision of this Court in Banshidhar v. Smt. Dhirjadhari, AIR 1971 All. 526. The relevant observation in paragraph 14 p. 529 extracted below would indicate that in this case also the date of deposit was considered to be the relevant date:

"Thus the Assistant Collector by his order makes a judicial grant of the certificate of bhumidhari. The recording of the satisfaction has to be inevitable and in separable consequences of accrual of bhumidhari rights (though with effect from a still prior date, namely, the date of deposit),"

The Full Bench in the case of Banshidhar v. Smt. Dhirajadhari, (supra) had also considered another aspect of the matter. The question was where a Sirdar applicable for becoming Bhumidhar and deposited ten times land revenue, but died before Bhumidhari Sanad could be issued to him, could a person claiming under him, on his death apply for withdrawal of application for declaration and refund of amount deposited on the ground that the certificate was not till then issued. The answer of the Full Bench was that such person cannot apply for withdrawal of application or the amount deposited by the Sirdar, who died before the certificate was issued. The reason was that once a Sirdar qualified to acquire Bhumidhari rights u/S. 34 voluntarily elects to acquire such rights, makes the necessary application and deposits the requisite sum it is not open to him to retract because the order of the Collector declaring bhumidhari right on the Sirdar tenant amount to the grant of certificate as the right accrues immediately and do not remain in abeyance till the issuance of the certificate.

The contrary view taken by this court in Ram Lakhan v. Ram Samujh, 1982 ALJ 382 that Bhumidhari rights are acquired by Sirdar from the date when the Assistant Collector makes a declaration to that effect u/S. 137 and not from the date of deposit of requisite 1 and revenue with respect cannot be preferred over the Supreme Court verdict and Full Bench decision of this Court referred to above.

The pronouncement in Smt. Nema v. D.D.C., U.P., Lucknow Camp, 1972 ALJ 105 is also in accordance with the Supreme Court interpretation, referred to above. This pronouncement cannot be interpreted to mean that accrual of Bhumidhari rights depends upon event of grant of certificate. General observation was made that when the certificate is granted, then the Bhumidhari rights accrue However, the effect of the 1962 amendment was also considered in this case and it was held that the effect of this amendment is to make the accrual retrospective. It was further held that the amendment to S. 137(2) of the UPZALR Act will apply to grants made on or after the date when the amending Act came into operation.

Learned counsel for the respondent has rightly drawn distinction between a saledeed and gift deed. It is not necessary to dislate (sic) upon this distinction. He further rightly contended that S. 43 of the Transfer of Property Act cannot be applied to transfer byway of gift because such transfer are not for consideration. There is no scope in the case before me for applying S. 43 of the T.P. Act or S. 6 of the said Act.

The case of Ramdeo and another v. The D.D.C. U.P. Lucknow, Camp at Deoria, 1967 AWR 578 is on a different point. In this case the transaction for the acquisition of the certificate was not completed in the lifetime of deceased sirdar. He did not receive bhumidhari certificate during his lifetime. On these facts it was held that such Sirdar without Bhumidhari Sanad cannot acquire bhumidhari right and the retrospective operation of the certificate will not confer any interest in the holding on the deceased sirdar but on the person in whose favour the certificate was granted.

In Smt. Matbi v. Smt. Sheopati, Civil Misc. Writ Petition No. 3193 of 1969 decided on 5th November, 1970 laying down the law that having regard to the language, context and object of Section 137 (2) the expression "upon the grant of the certificate" in subsection (2) of Section 137 means upon the making of an order for the grant of the certificate," cannot be followed in view of the Full Bench decision, the decision of the Hon''ble Supreme Court and latest decision of this court in Niyaz Ahmad v. The D.D. C. Varanasi (supra).

The case of Reghunandan Singh and another v. Yashwant Singh, 1978 RD, 183 is also distinguishable because in this case the order for grant of Bhumidhari certificate was passed after the appellant Sirdar died. The order granting sanad, on these facts was held to be nullity. In the case before me the declaration was made during the lifetime of Fateh Singh and certificate of Bhumidhari was also issued in his lifetime.

It may also be mentioned that in the case before me, in the bhumidhari Sanad, it is mentioned specifically that Fateh Singh will be deemed to be Bhumidhari with effect from 28th November, 1969 and this recital was exactly in accordance with the Amending Act of 1962.

There is thus no invalidity in the giftdeed and it was not liable to be cancelled. The lower appellate court on these facts committed error in setting aside and cancelling the impugned gift deed. The appeal, therefore, succeeds.

Coming to the crossobjection, I have heard learned counsel moving the same and considered the grounds taken in the crossobjection. If the execution of the gift deed by Fateh Singh is proved and the gift deed was not forged or obtained by fraud then any amount of crossobjection will not be enough for cancelling the gift deed. If the right of Fateh Singh to executive the gift deed as Bhumidhar cannot be challenged in view of the findings above, the cross objection on that point cannot be accepted. The result is that the crossobjections are bound to fail.

In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside whereas the judgment and decree of the trial court are restored. The crossobjections are dismissed. In the circumstances of the case the parties shall bear their own costs of this appeal and the crossobjection.