Udham Singh vs Kailasha Devi & Another

Sureshwar Thakur, J

The defendant becoming aggrieved, from, the concurrently recorded declaratory decrees, vis­a­vis, the plaintiff, and, qua, the, suit khasra numbers, (a) where through, she, on demise of her predecessor­in­ interest, became declared, to, inherit his estate, and, also, there through, a, declaration became rendered hence quashing, and, setting aside mutation, of, 16.11.1977, and, also the consequent therewith entries, where throughs, defendant No.1, rather, became exclusive owner, in, possession of the suit land, (b) hence there against, institutes, the, instant appeal before this Court, where through he seeks quashing, of, concurrently recorded decrees, against him, by both the learned courts below.

This Court, on 19.5.2014, had, admitted the appeal, instituted by the defendants/appellants, against, the judgment and decree, rendered, by the learned first Appellate Court, upon, the hereinafter extracted, substantial question of law, for, its hence making, an adjudication thereon:­

Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available on record, the findings recorded by both courts below are erroneous and as such the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?

Substantial question of Law No.1:

It is not in contest, inter­se, the contesting litigants, before this Court, vis­a­vis, the common predecessor­in­interest, of, the plaintiff, and, of co­ defendant No.1, namely one Kihru, during, his life time, becoming vested, hence, with proprietary rights, vis­a­ vis, the, suit khasra numbers. However, thereafter, after his demise, and, upon his estate opening for succession, though,hence mutation(s) in equal shares, vis­a­vis, the plaintiff, and, co­defendant No.1, became enjoined to be recorded, (a) yet, thereafter the apposite mutation, as, recorded, on 16.11.1977, to the exclusion of the plaintiff, makes, an order qua rather, only co­defendant No.1, hence succeeding, to, the estate of Kihru, (b) and, obviously the plaintiff, became excluded, from inheritance, vis­a­vis, the estate of the afore, (c) though, she along with co­defendant No.1, given, the deceased Kehru rather dying intestate, became entitled, to succeed, to his estate, in a share equal, vis­a­vis, the share, of, co­defendant No.1, in, the suit khasra numbers.

The learned counsel, for the aggrieved defendants, has, contended with much vigor, before this Court, (i) qua, the makings, of, concurrent afore declaratory decree(s), and, also, the, makings , of, concurrent decree(s) of injunction, vis­a­vis, the plaintiff, and, qua the suit khasra numbers, rather becoming infirm, (i) given both the learned courts below, rather, grossly over looking, and, ignoring, the, mandate borne, in, Section 45, of, the Tenancy and Land Reforms Act, provisions whereof stand extracted hereinafter:­

"45. Succession to right of tenancy.­ When a tenant in any land dies, the right shall devolve­

(a) on his male linear descendants, if any, in the male line of descent; and

(b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and

(c) failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom, and

(d) failing such descendants and widow, or widowed mother or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this section, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives."

(a) and appertaining, to, right(s) of succession, vis­a­vis, tenancy(ies) rights (b) and, when, an, exhaustive enumeration, becomes embodied, therein, vis­a­vis, the category(ies), of, persons, who, can befittingly succeed the estate, of, the deceased tenant, and, with, the daughter(s) of the deceased tenant, becoming, not included therein, (c) thereupon, the, plaintiff, the, daughter, of, the afore deceased tenant becomes not vested with, any, indefeasible, rather, to, claim devolution, of, tenancy(ies), upon, her, upon the demise, of, her father. However, the afore submission, is, misplaced, (i) and, hence emanates, from, a gross misunderstanding, and, mis­appreciation, of, the mandate of Section 45, (ii) in as much as, the afore mandate, became applicable only, on occurrence, of, demise, of, a tenant, (iii) and, also its holding, apt, statutory command, and, clout only prior, to, the apposite tenant, becoming vested, with, statutory proprietary rights, vis­a­vis, the suit khasra numbers, and, thereafter its clout becoming subsided. Since as aforestated, the afore Kihru became vested, with, statutory proprietary right(s) , vis­a­vis, the suit khasra numbers, (iv) thereupon, the statutory command, and, clout of Section 45, became inapplicable, vis­a­vis, the estate, of, the Kehru, (v) given his, thereafter holding absolute right, as owner thereon. Consequently, the apt rules governing, the, rights, of, succession is, vis­a­vis, his estate, upon, his dying interstate, hence at that stage, are, embodied, in, the Hindu Succession Act, (vi) and, when along with co­defendant No.1, the plaintiff, both also class one heirs, of, the afore deceased, (vii) thereupon both were entitled to inherit, the, estate, of, deceased Kihru. In aftermath, the concurrent declaratory decree(s) rendered by, both the, learned courts below, are, well warranted, and, also, the, rendering, of, concurrent decree(s) of injunction, hence by both the learned courts below, are, also apt, and, do not warrant, any, interference from this Court.

The above discussion, unfolds, qua the conclusion(s), as arrived by the learned Courts below, being based, upon a proper, and, mature appreciation, of, evidence, on, record. The substantial question, of law, is, answered, accordingly.

In view of the above discussion, the instant appeal, is, dismissed, and, the judgment, and, decree impugned, before this Court, is, affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.