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PETITIONER: SMT. MAINIA

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION & OTHERS

DATE OF JUDGMENT04/08/1989

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SHARMA, L.M. (J)

CITATION:  1989 AIR 1872            1989 SCR  (3) 685  1989 SCC  (4) 370        JT 1989 (3)   288  1989 SCALE  (2)147

ACT:     United Provinces Tenancy Act, 1939.’ Sections 35, 36 and 180-Character      of     widow’s      possession      after remarriage---Altered by operation of law--No further  animus required.     U.P.  Zamindari  Abolition and Land Reforms  Act,  1950: Sections  171  & 172--Succession in case  of  woman  holding interest inherited as a widow.

HEADNOTE:     One  Chain  Sukh  died issueless. His  interest  as  the occupancy  tenant of the land in dispute therefore  devolved upon  his widow, Smt. Sukhia, in accordance with section  35 of the United Provinces Tenancy Act, 1939. A couple of years after the death of Chain Sukh, Sukhia remarried Gopal  Singh in "Karwa" form according to the caste custom, prior to  the date  of vesting, i.e., 1.7.1952, under the  U.P.  Zamindari Abolition  and Land Reforms Act, 1950. A son  Chartder  Pal, respondent  No. 4, was born to Sukhia. Sukhia  continued  to remain in possession of this holding till her death in 1965.     The  appellant is the sister of deceased Chain  Sukh.  A dispute  arose between the appellant and Chander Pal  during the  consolidation proceedings under the U.P.  Consolidation of Land Holdings Act, each of them claiming interest to  the exclusion of the other. The Consolidation Officer held  that Smt.  Sukhia  on  her remarriage lost her  interest  in  the holding and by virtue of section 171 of the Zamindari Aboli- tion Act, Smt. Mainia being the sister of Chain Sukh  inher- ited  the interest in the holding. The  Settlement  Officer, Consolidation,  dismissed Chander Pal’s appeal. The  Settle- ment  Officer, however, held that a legal marriage  of  Smt. Sukhia  with  Gopal Singh was not proved; that  Smt.  Sukhia cultivated  the land throughout as the widow of Chain  Sukh, and  that, after her death the appellant inherrited  it.  In revision,  the Deputy Director Consolidation held that  Smt. Sukhia’s  "Karva" with Gopal Singh not being proved to he  a legal  marriage,  the succession would he  governed  on  the basis  that  she was Chain Sukh’s widow at the time  of  her death. Chander  Pal  filed a writ under Article 226, and  the  High Court

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686 while  allowing  the petition held  that  the  consolidation authorities  erred in deciding the matter on the basis  that Smt. Sukhia’s marriage with Gopal Singh was not proved to he legal.  The  High Court observed that in view  of  appellant Smt. Mainia’s clear admission that Smt. Sukhia was remarried to  Gopal  Singh  in "Karwa" form, and that  they  had  been living  together as husband and wife for several  years,  no further  proof of legality of the remarriage was  necessary. The  High Court further held that the effect of  the  provi- sions of the Tenancy Act was that her interest in the  hold- ing  after  her remarriage was in her own right and  not  as widow  of  Chain Sukh, and therefore, by virtue  of  section 180(2) of the Tenancy Act she acquired an independent  right which did not devolve upon her death to Chain Sukh’s sister, but to her son Chander Pal born to her after her  remarriage with Gopal Singh.     Before  this  Court it was contended on  behalf  of  the appellant that Smt. Sukhia’s interest in the holding contin- ued  till  her death only as widow of Chain Sukh  since  her initial  interest in the holding was by devolution as  widow of Chain Sukh under section 35 of the Tenancy Act; that Smt. Sukhia’s  remarriage with Gopal Singh was not  proved;  that since the possession of Smt. Sukhia was recorded  throughout as widow of Chain Sukh, there was no occasion for attracting the  provisions contained in section 180(2) of  the  Tenancy Act;  and that on her death in 1965 the succession was  gov- erned by section 172 read with section 171 of the  Zamindari Abolition Act. In reply, it was contended that remarriage of Smt.  Sukhia prior to the date of vesting, i.e., 1.7.  1952, under  the  U.P. Zamindari Abolition and Land  Reforms  Act, 1950 being the admitted case of the appellant, Smt.  Mainia, herself,  the appellant could not now he permitted  to  take contrary  stand; that the possession of Smt. Sukhia  in  the holding  at the time .of her death not being as a  widow  of Chain Sikh but in her own right, the succession was governed not  by  section  172 but by section 174  of  the  Zamindari Abolition  Act under which Chartder Pal inherited Smt.  Suk- hia’s interest in the holding as her son. Dismissing the appeal, this Court,      HELD: (1) The case of the appellant before the Consoli- dation Officer was put up on the basis of Smt. Sukhia  being remarried to Gopal Singh and Chander Pal being the son  born to Smt. Sukhia after her remarriage could not claim to be  a legal  heir of Smt. Sukhia’s first husband Chain  Sukh.  The High Court was, therefore. right in taking the view that the matter must he decided on that basis. [691F-G] (2) The mere fact of Smt. Sukhia’s name being shown in the 687 family register as widow of Chain Sukh till the time of  her death  in  1965 did not have the effect of  continuing  Smt. Sukhia’s  status as widow of Chain Sukh even after  she  had become  the  wife of Gopal Singh as a result of  her  remar- riage. [691H-692A]     BadriPrasad  v.  Deputy Director  Consolidation,  A.I.R. 1978S.C. 1557, referred to.    (3)    Section 36 of the Tenancy Act, which clearly  pro- vides for succession to a female tenant holding an  interest inherited as a widow in the case of her marriage thereafter, or, in other words, remarriage, was attracted in the present case. [692F]     (4)  According to section 36, on the remarriage of  Smt. Sukhia with Gopal Singh the interest devolved in  accordance with the order of succession laid down in section 35 on  the heirs  of the last male descendant, that is, Chain Sukh  but

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appellant  Smt.  Mainia, married sister of Chain  Sukh,  not being one of the heirs of Chain Sukh according to section 35 of  the  Tenancy Act, the interest did not devolve  on  Smt. Mainia.     (5)  The continued possession of Smt. Sukhia  after  her remarriage attracted section 180 of the Tenancy Act. [693D]     (6)  Admittedly, no suit as contemplated by  sub-section (2)  of  section 180 of the Tenancy Act was brought  at  any time against Smt. Sukhia and the prescribed period of  limi- tation  for such a suit expired prior to her death in  1965. Sub-section  (2)  of  section 180 of the  Tenancy  Act  was, therefore,  clearly attracted and Smt. Sukhia had  become  a hereditary tenant by virtue of that section with the further consequences flowing therefrom. [694A-B]     (7)  The legal consequence flowing from sections 36  and 180  of the U.P. Tenancy Act is enough to indicate that  the character of widow’s possession after her remarriage altered by  operation of law and any further animus is not  required to bring about the effect of the statutory provisions  which ensue  on expiry of the limitation prescribed for a suit  to evict her. [694G]     Ram  Jivan v. Smt. Phoola (dead) by Lrs., [1976]  3  SCR 262;  Jagarnath and others v. Deputy Director of  Consolida- tion Gorakhpur and others, [1976] AWC 654 and Chhiddoo Singh v.  Deputy Director of Consolidation & others.,  [1976]  AWC 809, distinguished. 688

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  955  of 1981.     From the Judgment and Order dated 11.5.79 of the Allaha- bad High Court in W.P. No. 3048 of 1973. P.N. Lekhi and M.K. Garg for the Appellant.     K.M.  Sinha,  Deepak Jaiswal and Pramod Swarup  for  the Respondents. The Judgment of the Court was delivered by     VERMA, J. This appeal by special leave under Article 136 of  the Constitution of India is against the judgment  of  a learned  Single  Judge of the Allahabad High Court  in  Writ Petition No. 3048 of 1973 decided on May 11, 1979.     The subject-matter of the dispute is a holding  compris- ing  of  Khata No. 141 in village Khera,  Laxmipur,  Pargana Kashipur  in  District Naimtal of which one Chain  Sukh  was initially  the  occupancy tenant. The said Chain  Sukh  died issueless  prior to the date of vesting, that  is,  1.7.1952 under  the  U.P. Zamindari Abolition and Land  Reforms  Act, 1950  (hereinafter referred to as "the  Zamindari  Abolition Act")  survived by his widow, Smt. Sukhia. The  interest  of Chain  Sukh as the occupancy tenant of the holding  devolved upon  his widow, Smt. Sukhia, in accordance with section  35 of  the  United  Provinces Tenancy  Act,  1939  (hereinafter referred to as "the Tenancy Act") in the absence of any male lineal descendant of Chain Sukh. The appellant, Smt. Mainia, is the sister of deceased Chain Sukh. Even according to  the appellant,  Smt.  Mainia, Chain Sukh’s widow,  Smt.  Sukhia, remarried Gopal Singh in "Karwa" form according to the caste custom  about two years after the death of Chain Sukh and  a son,  Chander  Pal,  respondent No. 4, was  born  to  Sukhia during  her wedlock with Gopal Singh. Smt. Sukhia  continued to  remain in possession of this holding till her  death  in 1965.     A  dispute  arose  between appellant,  Smt.  Mainia  and

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respondent  No.  4, Chander Pal,  during  the  consolidation proceedings  under the U.P. Consolidation of  Land  Holdings Act  in respect of this holding, each of them claiming  sole interest therein to the exclusion of the other.  Ultimately, the  Consolidation  Officer, Afzalgarh, by his  order  dated 29.1.1972 (Annexure III) passed under section 9-A of the Act 689 dismissed Chander Pal’s claim to the holding. The Consolida- tion  Officer held that Smt. Sukhia on her  remarriage  with Gopal  Singh lost her interest in the holding and by  virtue of  section 171 of the Zamindari Abolition  Act,  appellant, Smt.  Mainia, being the sister of Chain Sukh  inherited  the interest  in the holding. It was held that Chander Pal,  not being  the  son of Smt. Sukhia from Chain Sukh but  the  son born  to Smt. Sukhia after her remarriage with Gopal  Singh, could  not inherit as a heir of Chain Sukh.  The  Settlement Officer,  Consolidation, Nainital dismissed  Chander  .Pal’s appeal under Section 11 against the order of the  Consolida- tion Officer by order dated 14.2.1972 (Annexure IV).  Howev- er, the Settlement Officer held that even though Smt. Sukhia lived in the house of Gopal Singh for several years there is no positive evidence of her remarriage with Gopal Singh  and therefore  a legal marriage of Smt. Sukhia with Gopal  Singh is  not proved. It was held that Smt. Sukhia cultivated  the land  throughout  as the widow of Chain Sukh  and  therefore Chain Sukh’s sister Smt. Mainia inherited it after the death of  Smt.  Sukhia. A revision by Chander Pal  to  the  Deputy Director  Consolidation,  Moradabad,  Camp  Kashipur,  under Section  48  was also dismissed by  order  dated  15.11.1972 (Annexure V). It was observed that Smt. Mainia in her  reply dated  10.12.1970  had stated that Smt. Sukhia  did  "Karwa" with  Gopal  Singh  but Smt. Sukhia had been  shown  in  the family register as widow of Chain Sukh which shows that Smt. Sukhia was treated as a widow of Chain Sukh till the time of her death. It was held that Smt. Sukhia’s "Karwa" with Gopal Singh  not being proved to be a legal marriage, the  succes- sion  would  be governed on the basis that  she.  was  Chain Sukh’s widow at the time of her death.     A  writ petition under Article 226 of  the  Constitution was  then filed by Chander Pal in the High Court  which  has been  allowed by the impugned judgment dated May  11,  1979. The High Court has quashed the orders passed by the Consoli- dation Authorities and directed the Deputy Director (Consol- idation) to decide the revision of Chander Pal afresh on the basis  of the decision given in the writ petition. The  High Court  has held that the consolidation authorities erred  in deciding the matter on the basis that Smt. Sukhia’s marriage with Gopal Singh was not proved to be legal and,  therefore, Smt. Sukhia’s possession of the holding till the time of her death was merely as widow of Chain Sukh. It was pointed  out that in view of appellant Smt. Mainia’s clear admission that Smt.  Sukhia was remarried to Gopal Singh in  "Karwa"  form, according to caste custom, after Chain Sukh’s death and that they had been living together as husband and wife for sever- al years no further proof of legality of the remarriage  was necessary. Reliance was placed 690 by  the  High Court on a decision of the  Supreme  Court  in Badri  Prasad v. Deputy Director Consolidation, A.I.R.  1978 S.C.  1557 for reaching its conclusion and it was held  that this strong presumption of validity of Smt. Sukhia’s  remar- riage with Gopal Singh was not rebutted by the entry in  the family  register which continued to show Smt. Sukhia as  the widow  of Chain Sukh. Consequently, it was held by the  High Court that the finding of the consolidation authorities that

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Smt.  Sukhia’s  interest in the holding continued to  be  as widow  of Chain Sukh was a manifest error of law.  The  High Court  then proceeded to examine the legal  consequences  of Smt. Sukhia remarriage with Gopal Singh prior to the date of vesting i.e., 1.7.1952 under the Zamindari Abolition Act and her continuous possession over the holding after her  remar- riage. It was held by the High Court that the effect of  the provisions  of the Tenancy Act was that her interest in  the holding after her remarriage was in her own right and not as widow  of  Chain Sukh; and therefore, by virtue  of  section 180(2) of the Tenancy Act she acquired an independent  right which did not devolve upon her death to Chain Sukh’s sister, appellant  Smt. Mainia, but to her son Chander Pal  born  to her  after  her remarriage with Gopal Singh. It is  on  this basis that the High Court has directed the Deputy  Director, Consolidation,  to  decide respondent No. 4,  Chander  Pal’s revision afresh. Hence this appeal by special leave.     Shri P.N. Lekhi, learned counsel for the appellant, Smt. Mainia, has assailed the decision of the High Court substan- tially  on  the ground that Smt. Sukhia’s  interest  in  the holding continued till her death only as widow of Chain Sukh since her initial interest in the holding was by  revolution as widow of Chain Sukh under section 35 of the Tenancy  Act. Learned  Counsel for the appellant also contended before  us that  Smt.  Sukhia’s  remarriage with Gopal  Singh  was  not proved  and, therefore, the consequences of  remarriage,  if any,  did not arise. He argued that Smt. Sukhia’s  name  was recorded  throughout only as the widow of Chain  Sukh  which negatived the case of her remarriage with Gopal Singh  after the death of Chain Sukh. He argued that since the possession of Smt. Sukhia till her death in 1965 was as widow of  Chain Sukh,  there was no occasion for attracting  the  provisions contained in section 180(2) of the Tenancy Act. It was urged that on the death of Smt. Sukhia in 1965 the succession  was governed by section 172 read with section 171 of the Zamind- ari  Abolition Act on account of which by virtue  of  clause (m)  of section 171 appellant Smt. Mainia being the  married sister  of Chain Sukh inherited the interest in the  holding instead  of respondent No. 4, Chander Pal by virtue of  sec- tion 174 of that Act. 691       In  reply,  Shri K.M. Sinha, learned counsel  for  re- spondent No. 4 contended that remarriage of Smt. Sukhia with Gopal Singh after the death of Chain Sukh prior to the  date of vesting i.e., 1.7. 1952 under the Zamindari Abolition Act being  the admitted case of appellant Smt.  Mainia  herself, the  appellant  cannot now be permitted to take  a  contrary stand. It was urged that the conclusion of the High Court is correct and that consequence is obvious from the  provisions of  the  Tenancy Act. On this basis, it was urged  that  the possession of Smt. Sukhia in the holding at the time of  her death  not  being as a widow of Chain Sukh but  in  her  own right  the succession is governed not by section 172 but  by section  174  of  the Zamindari Abolition  Act  under  which respondent  No.  4,  Chander Pal,  inherited  Smt.  Sukhia’s interest in the holding as her son.        In our opinion, the contention of learned counsel for the  appellant cannot be accepted and on the case set up  by Smt. Mainia herself no fault can be found with the reasoning or conclusion of the High Court.        It is obvious even from the orders of the  consolida- tion  authorities that Smt. Sukhia’s remarriage  in  "Karwa" form according to the caste custom with Gopal Singh a couple of  years after the death of Chain Sukh was pleaded by  Smt. Mainia herself in her reply dated 10.12.1970 as mentioned in

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the order dated 15.11.1972 (Annexure V) by the Deputy Direc- tor  (Consolidation) while deciding Chander Pal’s  revision. The controversy between the parties before the consolidation authorities  was  at  best only about the  validity  of  the remarriage  and not its factum. Moreover, the order  of  the Consolidation  Officer dated 29.1. 1972 (Annexure III)  also indicates  that before the Consolidation Officer  appellant, Smt.  Mainia,  did  not dispute even the  validity  of  Smt. Sukhia’s  remarriage  with Gopal Singh and the case  of  the appellant  before the Consolidation Officer was put  on  the basis  of  Smt. Sukhia being remarried to  Gopal  Singh  and Chander  Pal  being the son born to Smt.  Sukhia  after  her remarriage so that Chander Pal could not claim to be a legal heir  of  Smt. Sukhia’s first husband Chain Sukh.  The  High Court  was,  therefore, right in taking the  view  that  the matter  must  be decided on the basis of Smt.  Sukhia  being remarried  to Gopal Singh a couple of years after the  death of  her first husband Chain Sukh and the question of  factum or validity of Smt. Sukhia’s remarriage with Gopal Singh did not  really  arise.  This being so, the mere  fact  of  Smt. Sukhia’s name being shown in the family register as widow of Chain  Sukh till the time of her death in 1965 did not  have the  effect of continuing Smt. Sukhia’s status as  widow  of Chain Sukh even after she 692 had become the wife of Gopal Singh as a result of her remar- riage.     The effect of the statutory provisions on the  continued possession of Smt. Sukhia in this altered status has, there- fore, to be examined.     The  relevant provisions of the Tenancy Act may  now  be noticed.  Admittedly,  succession to the interest  of  Chain Sukh on his death was governed by section 35 of the  Tenancy Act  according  to which the interest of Chain Sukh  in  the holding  devolved upon Smt. Sukhia as his widow in  the  ab- sence  of  any male lineal descendant in the  male  line  of descendant. Section 36 of the Tenancy Act is as under:               "36(1)  When  a female tenant,  other  than  a               tenant  mentioned  in section 34,  who  either               before  or after the commencement of this  Act               has  inherited an interest in a holding  as  a               widow,  as  a mother, as.a step-mother,  as  a               father’s  mother,  or, as a daughter  dies  or               abandons  such  holding,  or  surrenders  such               holding, or a part of such holding or, in  the               case of a tenant inheriting as a widow or as a               daughter, marries such holding or such part of               such  holding shall, notwithstanding  anything               in section 45, devolve in accordance with  the               order of succession laid down in section 35 on               the heir of the last male tenant, other than a               tenant  who  inherited as  a  father’s  father               under      the     provisions     of      that               section  .........               (emphasis supplied)" The  applicability  of section 36 in the  present  case  was disputed  by the learned counsel for the appellant.  We  are unable to agree. Section 36 clearly provides for  succession to a female tenant holding an interest inherited as a  widow in the case of her marriage thereafter, or, in other  words, remarriage.  The learned counsel for the appellant  contends that this is not so. In our opinion, the argument  overlooks the  clear  words "in the case of a tenant inheriting  as  a widow  ....  marries" which show that the situation where  a female tenant who inherited as a widow marries, or, in other

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words, remarries is specifically covered by section 36.  The contrary  construction placed on section 36 by  the  learned counsel  for the appellant would render these  words  redun- dant. The word ’marries’ instead of the word ’remarries’ has been  used for the obvious reason that it refers both  to  a widow as well as a daughter. We  have, therefore, no doubt that section 36 was  attracted in the 693 present  case when Smt. Sukhia remarried Gopal  Singh  after the  death of Chain Sukh. Section 36 also overrides  section 45  since  it  clearly says,  "notwithstanding  anything  in section  45" which provides generally for extinguishment  of the  interest of a tenant in the manner  specified  therein. The  argument of the learned counsel for the appellant  that clause  (a) of section 45 deals with the situation of  death of a tenant and, therefore, attracted, in the present  case, on the death of Smt. Sukhia in 1965 is untenable in view  of the express provision made in section 36.     The result is that according to section 36 on the remar- riage  of Sukhia with Gopal Singh the interest  devolved  in accordance with the order of succession laid down in section 35  on the heir of the last male descendant, that is,  Chain Sukh  but  appellant Smt. Mainia, married  sister  of  Chain Sukh, not being one of the heirs of Chain Sukh according  to section 35 of the Tenancy Act, the interest did not  devolve on Smt. Mainia.     The  continued  possession  of  Smt.  Sukhia  thereafter attracted  section  180  of the Tenancy  Act,  the  relevant portion of which is as under:                         180(1) A person taking or  retaining               possession  of  a  plot of  land  without  the               consent of the person entitled to admit him to               occupy such plot and otherwise than in accord-               ance  with the provisions of the law  for  the               time being in force, shall be liable to eject-               ment  under  the section on the  suit  of  the               person  so entitled, and also to  pay  damages               which  may  extend to four  times  the  annual               rental value calculated in accordance with the               sanctioned  rates  applicable  to   hereditary               tenants:               XXX                                        XXX               XXX               (2) If no suit is brought under this  section,               or if a decree obtained under this section  is               not  executed, the person in possession  shall               become a hereditary tenant of such plot, or if               such person is a co-sharer, he shall become  a               khudkashtholder,  on the expiry of the  period               of limitation prescribed for such suit or  for               the execution of such decree, as the case  may               be:               XXX XXX XXX." 694     Admittedly,  no suit as contemplated by sub-section  (2) of  section 180 of the Tenancy Act was brought at  any  time against Smt. Sukhia and the prescribed period of  limitation for  such  a suit expired prior to her death in  1965.  Sub- section (2) of section 180 was, therefore, clearly attracted and Smt. Sukhia had become a hereditary tenant by virtue  of section  180(2) of the Tenancy Act with the  further  conse- quences  flowing  therefrom. The case of  the  appellant  is based  on the applicability of section 172 of the  Zamindari Abolition  Act  which governs succession ’in the case  of  a

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woman  holding an interest inherited as a widow etc- on  the ground  that  Smt. Sukhia’s interest upto the  time  of  her death  was only as the widow of Chain Sukh. It is by  virtue of section 172 that the claim is made by the appellant. Smt. Mainia as the married sister of Chain Sukh under clause  (m) of  section 171. We have already indicated that the  founda- tion  of  Smt.  Mainia’s claim is non-existent.  If  such  a situation,  the appellant’s claim was rightly  negatived  by the High Court.     The  learned counsel for the appellant referred  to  the decision of this Court in Ram Jivan v. Smt. Phoola (dead) by Lrs. & Ors., [1976] 3 SCR 262. In view of the above  conclu- sion,  obviously  that  decision  has  no  application.  The learned counsel also referred to two Single Bench  decisions of the Allahabad High Court, namely, Jaganath and others  v. Deputy  Director  of  Consolidation  Gorakhpur  and  others, [1976]  AWC  654 and Chhiddoo Singh v.  Deputy  Director  of Consolidation  & others, [1976] AWC 809. The first  decision did not involve this point. The learned single Judge in  the other decision under provisions of the Agra Tenancy Act took the view that when a widow initially enters into  possession as a limited owner, the character of her subsequent  posses- sion  after remarriage cannot change in the absence of  evi- dence of a change in her animus. It was held that in such  a case it is for the widow to show that later she had asserted her absolute right and was possessing adversely as an  abso- lute owner in order to prescribe for absolute ownership.  It is  sufficient  for  us to say that  the  legal  consequence flowing from sections 36 and 180 of the U.P. Tenancy Act  is enough to indicate that the character of widow’s  possession after  her  remarriage altered by operation of law  and  any further animus is not required to bring about the effect  of the statutory provisions which ensue on expiry of the  limi- tation  prescribed  for a suit to evict her.  That  decision does not indicate consideration of the effect of a provision like  section 180(2) of the Tenancy Act, assuming there  was such  a  provision  in the Agra Tenancy Act  and  also  that section 24 of the Agra Tenancy Act was similar to section 36 of the U.P. Tenancy Act. These decisions are clearly distin- guishable. However, if the other decision 695 under  the  Agra Tenancy Act is read as  taking  a  contrary view, we are unable to subscribe to that view.     In the result, the appeal fails and is dismissed. Howev- er, in the circumstances of the case, we make no order as to costs. R.S.S.                                          Appeal  dis- missed. 696