{"id":188960,"date":"1989-08-04T00:00:00","date_gmt":"1989-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-mainia-vs-deputy-director-of-consolidation-on-4-august-1989"},"modified":"2018-03-29T01:12:30","modified_gmt":"2018-03-28T19:42:30","slug":"smt-mainia-vs-deputy-director-of-consolidation-on-4-august-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-mainia-vs-deputy-director-of-consolidation-on-4-august-1989","title":{"rendered":"Smt. Mainia vs Deputy Director Of Consolidation … on 4 August, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Mainia vs Deputy Director Of Consolidation … on 4 August, 1989<\/div>\n
Equivalent citations: 1989 AIR 1872, \t\t 1989 SCR (3) 685<\/div>\n
Author: J S Verma<\/div>\n
Bench: Verma, Jagdish Saran (J)<\/div>\n
           PETITIONER:\nSMT. MAINIA\n\n\tVs.\n\nRESPONDENT:\nDEPUTY DIRECTOR OF CONSOLIDATION & OTHERS\n\nDATE OF JUDGMENT04\/08\/1989\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nSHARMA, L.M. (J)\n\nCITATION:\n 1989 AIR 1872\t\t  1989 SCR  (3) 685\n 1989 SCC  (4) 370\t  JT 1989 (3)\t288\n 1989 SCALE  (2)147\n\n\nACT:\n    United Provinces Tenancy Act, 1939.' Sections 35, 36 and\n180-Character\t   of\t  widow's      possession      after\nremarriage---Altered by operation of law--No further  animus\nrequired.\n    U.P.  Zamindari  Abolition and Land Reforms\t Act,  1950:\nSections  171  & 172--Succession in case  of  woman  holding\ninterest inherited as a widow.\n\n\n\nHEADNOTE:\n    One\t Chain\tSukh  died issueless. His  interest  as\t the\noccupancy  tenant of the land in dispute therefore  devolved\nupon  his widow, Smt. Sukhia, in accordance with section  35\nof the United Provinces Tenancy Act, 1939. A couple of years\nafter the death of Chain Sukh, Sukhia remarried Gopal  Singh\nin \"Karwa\" form according to the caste custom, prior to\t the\ndate  of vesting, i.e., 1.7.1952, under the  U.P.  Zamindari\nAbolition  and Land Reforms Act, 1950. A son  Chartder\tPal,\nrespondent  No. 4, was born to Sukhia. Sukhia  continued  to\nremain in possession of this holding till her death in 1965.\n    The\t appellant is the sister of deceased Chain  Sukh.  A\ndispute\t arose between the appellant and Chander Pal  during\nthe  consolidation proceedings under the U.P.  Consolidation\nof Land Holdings Act, each of them claiming interest to\t the\nexclusion of the other. The Consolidation Officer held\tthat\nSmt.  Sukhia  on  her remarriage lost her  interest  in\t the\nholding and by virtue of section 171 of the Zamindari Aboli-\ntion Act, Smt. Mainia being the sister of Chain Sukh  inher-\nited  the interest in the holding. The\tSettlement  Officer,\nConsolidation,\tdismissed Chander Pal's appeal. The  Settle-\nment  Officer, however, held that a legal marriage  of\tSmt.\nSukhia\twith  Gopal Singh was not proved; that\tSmt.  Sukhia\ncultivated  the land throughout as the widow of Chain  Sukh,\nand  that, after her death the appellant inherrited  it.  In\nrevision,  the Deputy Director Consolidation held that\tSmt.\nSukhia's  \"Karva\" with Gopal Singh not being proved to he  a\nlegal  marriage,  the succession would he  governed  on\t the\nbasis  that  she was Chain Sukh's widow at the time  of\t her\ndeath.\nChander\t Pal  filed a writ under Article 226, and  the\tHigh\nCourt\n686\nwhile  allowing\t the petition held  that  the  consolidation\nauthorities  erred in deciding the matter on the basis\tthat\nSmt. Sukhia's marriage with Gopal Singh was not proved to he\nlegal.\tThe  High Court observed that in view  of  appellant\nSmt. Mainia's clear admission that Smt. Sukhia was remarried\nto  Gopal  Singh  in \"Karwa\" form, and that  they  had\tbeen\nliving\ttogether as husband and wife for several  years,  no\nfurther\t proof of legality of the remarriage was  necessary.\nThe  High Court further held that the effect of\t the  provi-\nsions of the Tenancy Act was that her interest in the  hold-\ning  after  her remarriage was in her own right and  not  as\nwidow  of  Chain Sukh, and therefore, by virtue\t of  section\n180(2) of the Tenancy Act she acquired an independent  right\nwhich did not devolve upon her death to Chain Sukh's sister,\nbut to her son Chander Pal born to her after her  remarriage\nwith Gopal Singh.\n    Before  this  Court it was contended on  behalf  of\t the\nappellant that Smt. Sukhia's interest in the holding contin-\nued  till  her death only as widow of Chain Sukh  since\t her\ninitial\t interest in the holding was by devolution as  widow\nof Chain Sukh under section 35 of the Tenancy Act; that Smt.\nSukhia's  remarriage with Gopal Singh was not  proved;\tthat\nsince the possession of Smt. Sukhia was recorded  throughout\nas widow of Chain Sukh, there was no occasion for attracting\nthe  provisions contained in section 180(2) of\tthe  Tenancy\nAct;  and that on her death in 1965 the succession was\tgov-\nerned by section 172 read with section 171 of the  Zamindari\nAbolition Act. In reply, it was contended that remarriage of\nSmt.  Sukhia prior to the date of vesting, i.e., 1.7.  1952,\nunder  the  U.P. Zamindari Abolition and Land  Reforms\tAct,\n1950 being the admitted case of the appellant, Smt.  Mainia,\nherself,  the appellant could not now he permitted  to\ttake\ncontrary  stand; that the possession of Smt. Sukhia  in\t the\nholding\t at the time .of her death not being as a  widow  of\nChain Sikh but in her own right, the succession was governed\nnot  by\t section  172 but by section 174  of  the  Zamindari\nAbolition  Act under which Chartder Pal inherited Smt.\tSuk-\nhia's interest in the holding as her son.\nDismissing the appeal, this Court,\n     HELD: (1) The case of the appellant before the Consoli-\ndation Officer was put up on the basis of Smt. Sukhia  being\nremarried to Gopal Singh and Chander Pal being the son\tborn\nto Smt. Sukhia after her remarriage could not claim to be  a\nlegal  heir of Smt. Sukhia's first husband Chain  Sukh.\t The\nHigh Court was, therefore. right in taking the view that the\nmatter must he decided on that basis. [691F-G]\n(2) The mere fact of Smt. Sukhia's name being shown in the\n687\nfamily register as widow of Chain Sukh till the time of\t her\ndeath  in  1965 did not have the effect of  continuing\tSmt.\nSukhia's  status as widow of Chain Sukh even after  she\t had\nbecome\tthe  wife of Gopal Singh as a result of\t her  remar-\nriage. [691H-692A]\n    BadriPrasad\t v.  Deputy Director  Consolidation,  A.I.R.\n1978S.C. 1557, referred to.\n   (3)\t  Section 36 of the Tenancy Act, which clearly\tpro-\nvides for succession to a female tenant holding an  interest\ninherited as a widow in the case of her marriage thereafter,\nor, in other words, remarriage, was attracted in the present\ncase. [692F]\n    (4)\t According to section 36, on the remarriage of\tSmt.\nSukhia with Gopal Singh the interest devolved in  accordance\nwith the order of succession laid down in section 35 on\t the\nheirs  of the last male descendant, that is, Chain Sukh\t but\nappellant  Smt.\t Mainia, married sister of Chain  Sukh,\t not\nbeing one of the heirs of Chain Sukh according to section 35\nof  the\t Tenancy Act, the interest did not devolve  on\tSmt.\nMainia.\n    (5)\t The continued possession of Smt. Sukhia  after\t her\nremarriage attracted section 180 of the Tenancy Act. [693D]\n    (6)\t Admittedly, no suit as contemplated by\t sub-section\n(2)  of\t section 180 of the Tenancy Act was brought  at\t any\ntime against Smt. Sukhia and the prescribed period of  limi-\ntation\tfor such a suit expired prior to her death in  1965.\nSub-section  (2)  of  section 180 of the  Tenancy  Act\twas,\ntherefore,  clearly attracted and Smt. Sukhia had  become  a\nhereditary tenant by virtue of that section with the further\nconsequences flowing therefrom. [694A-B]\n    (7)\t The legal consequence flowing from sections 36\t and\n180  of the U.P. Tenancy Act is enough to indicate that\t the\ncharacter of widow's possession after her remarriage altered\nby  operation of law and any further animus is not  required\nto bring about the effect of the statutory provisions  which\nensue  on expiry of the limitation prescribed for a suit  to\nevict her. [694G]\n    Ram\t Jivan v. Smt. Phoola<\/a> (dead) by Lrs., [1976]  3\t SCR\n262;  Jagarnath and others v. Deputy Director of  Consolida-\ntion Gorakhpur and others, [1976] AWC 654 and Chhiddoo Singh\nv.  Deputy Director of Consolidation & others.,\t [1976]\t AWC\n809, distinguished.\n688\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  955  of
\n1981.\n<\/p>\n
    From the Judgment and Order dated 11.5.79 of the Allaha-
\nbad High Court in W.P. No. 3048 of 1973.\n<\/p>\n
P.N. Lekhi and M.K. Garg for the Appellant.\n<\/p>\n
    K.M.  Sinha,  Deepak Jaiswal and Pramod Swarup  for\t the
\nRespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    VERMA, J. This appeal by special leave under Article 136
\nof  the Constitution of India is against the judgment  of  a
\nlearned\t Single\t Judge of the Allahabad High Court  in\tWrit
\nPetition No. 3048 of 1973 decided on May 11, 1979.
\n    The subject-matter of the dispute is a holding  compris-
\ning  of\t Khata No. 141 in village Khera,  Laxmipur,  Pargana
\nKashipur  in  District Naimtal of which one Chain  Sukh\t was
\ninitially  the\toccupancy tenant. The said Chain  Sukh\tdied
\nissueless  prior to the date of vesting, that  is,  1.7.1952
\nunder  the  U.P. Zamindari Abolition and Land  Reforms\tAct,
\n1950  (hereinafter referred to as “the\tZamindari  Abolition
\nAct”)  survived by his widow, Smt. Sukhia. The\tinterest  of
\nChain  Sukh as the occupancy tenant of the holding  devolved
\nupon  his widow, Smt. Sukhia, in accordance with section  35
\nof  the\t United\t Provinces Tenancy  Act,  1939\t(hereinafter
\nreferred to as “the Tenancy Act”) in the absence of any male
\nlineal descendant of Chain Sukh. The appellant, Smt. Mainia,
\nis the sister of deceased Chain Sukh. Even according to\t the
\nappellant,  Smt.  Mainia, Chain Sukh’s widow,  Smt.  Sukhia,
\nremarried Gopal Singh in “Karwa” form according to the caste
\ncustom\tabout two years after the death of Chain Sukh and  a
\nson,  Chander  Pal,  respondent No. 4, was  born  to  Sukhia
\nduring\ther wedlock with Gopal Singh. Smt. Sukhia  continued
\nto  remain in possession of this holding till her  death  in
\n1965.\n<\/p>\n
    A  dispute\tarose  between appellant,  Smt.\t Mainia\t and
\nrespondent  No.\t 4, Chander Pal,  during  the  consolidation
\nproceedings  under the U.P. Consolidation of  Land  Holdings
\nAct  in respect of this holding, each of them claiming\tsole
\ninterest therein to the exclusion of the other.\t Ultimately,
\nthe  Consolidation  Officer, Afzalgarh, by his\torder  dated
\n29.1.1972 (Annexure III) passed under section 9-A of the Act
\n689<\/span>
\ndismissed Chander Pal’s claim to the holding. The Consolida-
\ntion  Officer held that Smt. Sukhia on her  remarriage\twith
\nGopal  Singh lost her interest in the holding and by  virtue
\nof  section 171 of the Zamindari Abolition  Act,  appellant,
\nSmt.  Mainia, being the sister of Chain Sukh  inherited\t the
\ninterest  in the holding. It was held that Chander Pal,\t not
\nbeing  the  son of Smt. Sukhia from Chain Sukh but  the\t son
\nborn  to Smt. Sukhia after her remarriage with Gopal  Singh,
\ncould  not inherit as a heir of Chain Sukh.  The  Settlement
\nOfficer,  Consolidation, Nainital dismissed  Chander  .Pal’s
\nappeal under Section 11 against the order of the  Consolida-
\ntion Officer by order dated 14.2.1972 (Annexure IV).  Howev-
\ner, the Settlement Officer held that even though Smt. Sukhia
\nlived in the house of Gopal Singh for several years there is
\nno positive evidence of her remarriage with Gopal Singh\t and
\ntherefore  a legal marriage of Smt. Sukhia with Gopal  Singh
\nis  not proved. It was held that Smt. Sukhia cultivated\t the
\nland  throughout  as the widow of Chain Sukh  and  therefore
\nChain Sukh’s sister Smt. Mainia inherited it after the death
\nof  Smt.  Sukhia. A revision by Chander Pal  to\t the  Deputy
\nDirector  Consolidation,  Moradabad,  Camp  Kashipur,  under
\nSection\t 48  was also dismissed by  order  dated  15.11.1972
\n(Annexure V). It was observed that Smt. Mainia in her  reply
\ndated  10.12.1970  had stated that Smt. Sukhia\tdid  “Karwa”
\nwith  Gopal  Singh  but Smt. Sukhia had been  shown  in\t the
\nfamily register as widow of Chain Sukh which shows that Smt.
\nSukhia was treated as a widow of Chain Sukh till the time of
\nher death. It was held that Smt. Sukhia’s “Karwa” with Gopal
\nSingh  not being proved to be a legal marriage, the  succes-
\nsion  would  be governed on the basis that  she.  was  Chain
\nSukh’s widow at the time of her death.\n<\/p>\n
    A  writ petition under Article 226 of  the\tConstitution
\nwas  then filed by Chander Pal in the High Court  which\t has
\nbeen  allowed by the impugned judgment dated May  11,  1979.
\nThe High Court has quashed the orders passed by the Consoli-
\ndation Authorities and directed the Deputy Director (Consol-
\nidation) to decide the revision of Chander Pal afresh on the
\nbasis  of the decision given in the writ petition. The\tHigh
\nCourt  has held that the consolidation authorities erred  in
\ndeciding the matter on the basis that Smt. Sukhia’s marriage
\nwith Gopal Singh was not proved to be legal and,  therefore,
\nSmt. Sukhia’s possession of the holding till the time of her
\ndeath was merely as widow of Chain Sukh. It was pointed\t out
\nthat in view of appellant Smt. Mainia’s clear admission that
\nSmt.  Sukhia was remarried to Gopal Singh in  “Karwa”  form,
\naccording to caste custom, after Chain Sukh’s death and that
\nthey had been living together as husband and wife for sever-
\nal years no further proof of legality of the remarriage\t was
\nnecessary. Reliance was placed
\n690<\/span>
\nby  the\t High Court on a decision of the  Supreme  Court  in
\nBadri  Prasad v. Deputy Director Consolidation, A.I.R.<\/a>\t1978
\nS.C.  1557 for reaching its conclusion and it was held\tthat
\nthis strong presumption of validity of Smt. Sukhia’s  remar-
\nriage with Gopal Singh was not rebutted by the entry in\t the
\nfamily\tregister which continued to show Smt. Sukhia as\t the
\nwidow  of Chain Sukh. Consequently, it was held by the\tHigh
\nCourt that the finding of the consolidation authorities that
\nSmt.  Sukhia’s\tinterest in the holding continued to  be  as
\nwidow  of Chain Sukh was a manifest error of law.  The\tHigh
\nCourt  then proceeded to examine the legal  consequences  of
\nSmt. Sukhia remarriage with Gopal Singh prior to the date of
\nvesting i.e., 1.7.1952 under the Zamindari Abolition Act and
\nher continuous possession over the holding after her  remar-
\nriage. It was held by the High Court that the effect of\t the
\nprovisions  of the Tenancy Act was that her interest in\t the
\nholding after her remarriage was in her own right and not as
\nwidow  of  Chain Sukh; and therefore, by virtue\t of  section
\n180(2) of the Tenancy Act she acquired an independent  right
\nwhich did not devolve upon her death to Chain Sukh’s sister,
\nappellant  Smt. Mainia, but to her son Chander Pal  born  to
\nher  after  her remarriage with Gopal Singh. It is  on\tthis
\nbasis that the High Court has directed the Deputy  Director,
\nConsolidation,\tto  decide respondent No. 4,  Chander  Pal’s
\nrevision afresh. Hence this appeal by special leave.
\n    Shri P.N. Lekhi, learned counsel for the appellant, Smt.
\nMainia, has assailed the decision of the High Court substan-
\ntially\ton  the ground that Smt. Sukhia’s  interest  in\t the
\nholding continued till her death only as widow of Chain Sukh
\nsince her initial interest in the holding was by  revolution
\nas widow of Chain Sukh under section 35 of the Tenancy\tAct.
\nLearned\t Counsel for the appellant also contended before  us
\nthat  Smt.  Sukhia’s  remarriage with Gopal  Singh  was\t not
\nproved\tand, therefore, the consequences of  remarriage,  if
\nany,  did not arise. He argued that Smt. Sukhia’s  name\t was
\nrecorded  throughout only as the widow of Chain\t Sukh  which
\nnegatived the case of her remarriage with Gopal Singh  after
\nthe death of Chain Sukh. He argued that since the possession
\nof Smt. Sukhia till her death in 1965 was as widow of  Chain
\nSukh,  there was no occasion for attracting  the  provisions
\ncontained in section 180(2) of the Tenancy Act. It was urged
\nthat on the death of Smt. Sukhia in 1965 the succession\t was
\ngoverned by section 172 read with section 171 of the Zamind-
\nari  Abolition Act on account of which by virtue  of  clause\n<\/p>\n
(m)  of section 171 appellant Smt. Mainia being the  married
\nsister\tof Chain Sukh inherited the interest in the  holding
\ninstead\t of respondent No. 4, Chander Pal by virtue of\tsec-
\ntion 174 of that Act.\n<\/p>\n
691<\/span><\/p>\n
      In  reply,  Shri K.M. Sinha, learned counsel  for\t re-
\nspondent No. 4 contended that remarriage of Smt. Sukhia with
\nGopal Singh after the death of Chain Sukh prior to the\tdate
\nof vesting i.e., 1.7. 1952 under the Zamindari Abolition Act
\nbeing  the admitted case of appellant Smt.  Mainia  herself,
\nthe  appellant\tcannot now be permitted to take\t a  contrary
\nstand. It was urged that the conclusion of the High Court is
\ncorrect and that consequence is obvious from the  provisions
\nof  the\t Tenancy Act. On this basis, it was urged  that\t the
\npossession of Smt. Sukhia in the holding at the time of\t her
\ndeath  not  being as a widow of Chain Sukh but\tin  her\t own
\nright  the succession is governed not by section 172 but  by
\nsection\t 174  of  the Zamindari Abolition  Act\tunder  which
\nrespondent  No.\t 4,  Chander Pal,  inherited  Smt.  Sukhia’s
\ninterest in the holding as her son.\n<\/p>\n
       In our opinion, the contention of learned counsel for
\nthe  appellant cannot be accepted and on the case set up  by
\nSmt. Mainia herself no fault can be found with the reasoning
\nor conclusion of the High Court.\n<\/p>\n
       It is obvious even from the orders of the  consolida-
\ntion  authorities that Smt. Sukhia’s remarriage\t in  “Karwa”
\nform according to the caste custom with Gopal Singh a couple
\nof  years after the death of Chain Sukh was pleaded by\tSmt.
\nMainia herself in her reply dated 10.12.1970 as mentioned in
\nthe order dated 15.11.1972 (Annexure V) by the Deputy Direc-
\ntor  (Consolidation) while deciding Chander Pal’s  revision.
\nThe controversy between the parties before the consolidation
\nauthorities  was  at  best only about the  validity  of\t the
\nremarriage  and not its factum. Moreover, the order  of\t the
\nConsolidation  Officer dated 29.1. 1972 (Annexure III)\talso
\nindicates  that before the Consolidation Officer  appellant,
\nSmt.  Mainia,  did  not dispute even the  validity  of\tSmt.
\nSukhia’s  remarriage  with Gopal Singh and the case  of\t the
\nappellant  before the Consolidation Officer was put  on\t the
\nbasis  of  Smt. Sukhia being remarried to  Gopal  Singh\t and
\nChander\t Pal  being the son born to Smt.  Sukhia  after\t her
\nremarriage so that Chander Pal could not claim to be a legal
\nheir  of  Smt. Sukhia’s first husband Chain Sukh.  The\tHigh
\nCourt  was,  therefore, right in taking the  view  that\t the
\nmatter\tmust  be decided on the basis of Smt.  Sukhia  being
\nremarried  to Gopal Singh a couple of years after the  death
\nof  her first husband Chain Sukh and the question of  factum
\nor validity of Smt. Sukhia’s remarriage with Gopal Singh did
\nnot  really  arise.  This being so, the mere  fact  of\tSmt.
\nSukhia’s name being shown in the family register as widow of
\nChain  Sukh till the time of her death in 1965 did not\thave
\nthe  effect of continuing Smt. Sukhia’s status as  widow  of
\nChain Sukh even after she
\n692<\/span>
\nhad become the wife of Gopal Singh as a result of her remar-
\nriage.\n<\/p>\n
    The effect of the statutory provisions on the  continued
\npossession of Smt. Sukhia in this altered status has, there-
\nfore, to be examined.\n<\/p>\n
    The\t relevant provisions of the Tenancy Act may  now  be
\nnoticed.  Admittedly,  succession to the interest  of  Chain
\nSukh on his death was governed by section 35 of the  Tenancy
\nAct  according\tto which the interest of Chain Sukh  in\t the
\nholding\t devolved upon Smt. Sukhia as his widow in  the\t ab-
\nsence  of  any male lineal descendant in the  male  line  of
\ndescendant. Section 36 of the Tenancy Act is as under:\n<\/p>\n
\t      “36(1)  When  a female tenant,  other  than  a
\n\t      tenant  mentioned\t in section 34,\t who  either
\n\t      before  or after the commencement of this\t Act
\n\t      has  inherited an interest in a holding  as  a
\n\t      widow,  as  a mother, as.a step-mother,  as  a
\n\t      father’s\tmother,\t or, as a daughter  dies  or
\n\t      abandons\tsuch  holding,\tor  surrenders\tsuch
\n\t      holding, or a part of such holding or, in\t the
\n\t      case of a tenant inheriting as a widow or as a
\n\t      daughter, marries such holding or such part of
\n\t      such  holding shall, notwithstanding  anything
\n\t      in section 45, devolve in accordance with\t the
\n\t      order of succession laid down in section 35 on
\n\t      the heir of the last male tenant, other than a
\n\t      tenant  who  inherited as\t a  father’s  father
\n\t      under\t the\t provisions\tof\tthat
\n\t      section  ………\n<\/p><\/blockquote>\n
\t      (emphasis supplied)”\n<\/p><\/blockquote>\n
The  applicability  of section 36 in the  present  case\t was
\ndisputed  by the learned counsel for the appellant.  We\t are
\nunable to agree. Section 36 clearly provides for  succession
\nto a female tenant holding an interest inherited as a  widow
\nin the case of her marriage thereafter, or, in other  words,
\nremarriage.  The learned counsel for the appellant  contends
\nthat this is not so. In our opinion, the argument  overlooks
\nthe  clear  words “in the case of a tenant inheriting  as  a
\nwidow  ….  marries” which show that the situation where  a
\nfemale tenant who inherited as a widow marries, or, in other
\nwords, remarries is specifically covered by section 36.\t The
\ncontrary  construction placed on section 36 by\tthe  learned
\ncounsel\t for the appellant would render these  words  redun-
\ndant. The word ‘marries’ instead of the word ‘remarries’ has
\nbeen  used for the obvious reason that it refers both  to  a
\nwidow as well as a daughter.\n<\/p>\n
We  have, therefore, no doubt that section 36 was  attracted
\nin the
\n693<\/span>
\npresent\t case when Smt. Sukhia remarried Gopal\tSingh  after
\nthe  death of Chain Sukh. Section 36 also overrides  section
\n45  since  it  clearly says,  “notwithstanding\tanything  in
\nsection\t 45” which provides generally for extinguishment  of
\nthe  interest of a tenant in the manner\t specified  therein.
\nThe  argument of the learned counsel for the appellant\tthat
\nclause\t(a) of section 45 deals with the situation of  death
\nof a tenant and, therefore, attracted, in the present  case,
\non the death of Smt. Sukhia in 1965 is untenable in view  of
\nthe express provision made in section 36.\n<\/p>\n
    The result is that according to section 36 on the remar-
\nriage  of Sukhia with Gopal Singh the interest\tdevolved  in
\naccordance with the order of succession laid down in section
\n35  on the heir of the last male descendant, that is,  Chain
\nSukh  but  appellant Smt. Mainia, married  sister  of  Chain
\nSukh, not being one of the heirs of Chain Sukh according  to
\nsection 35 of the Tenancy Act, the interest did not  devolve
\non Smt. Mainia.\n<\/p>\n
    The\t continued  possession\tof  Smt.  Sukhia  thereafter
\nattracted  section  180\t of the Tenancy\t Act,  the  relevant
\nportion of which is as under:\n<\/p>\n
\t\t\t180(1) A person taking or  retaining
\n\t      possession  of  a\t plot of  land\twithout\t the
\n\t      consent of the person entitled to admit him to
\n\t      occupy such plot and otherwise than in accord-
\n\t      ance  with the provisions of the law  for\t the
\n\t      time being in force, shall be liable to eject-
\n\t      ment  under  the section on the  suit  of\t the
\n\t      person  so entitled, and also to\tpay  damages
\n\t      which  may  extend to four  times\t the  annual
\n\t      rental value calculated in accordance with the
\n\t      sanctioned  rates\t applicable  to\t  hereditary
\n\t      tenants:\n<\/p><\/blockquote>\n
\t      XXX\t\t\t\t\t XXX\n\t      XXX\n<\/pre>\n
\t      (2) If no suit is brought under this  section,
\n\t      or if a decree obtained under this section  is
\n\t      not  executed, the person in possession  shall
\n\t      become a hereditary tenant of such plot, or if
\n\t      such person is a co-sharer, he shall become  a
\n\t      khudkashtholder,\ton the expiry of the  period
\n\t      of limitation prescribed for such suit or\t for
\n\t      the execution of such decree, as the case\t may
\n\t      be:\n<\/p><\/blockquote>\n
\t      XXX XXX XXX.”<\/p><\/blockquote>\n
694<\/span><\/p>\n
    Admittedly,\t no suit as contemplated by sub-section\t (2)
\nof  section 180 of the Tenancy Act was brought at  any\ttime
\nagainst Smt. Sukhia and the prescribed period of  limitation
\nfor  such  a suit expired prior to her death in\t 1965.\tSub-
\nsection (2) of section 180 was, therefore, clearly attracted
\nand Smt. Sukhia had become a hereditary tenant by virtue  of
\nsection\t 180(2) of the Tenancy Act with the  further  conse-
\nquences\t flowing  therefrom. The case of  the  appellant  is
\nbased  on the applicability of section 172 of the  Zamindari
\nAbolition  Act\twhich governs succession ‘in the case  of  a
\nwoman  holding an interest inherited as a widow etc- on\t the
\nground\tthat  Smt. Sukhia’s interest upto the  time  of\t her
\ndeath  was only as the widow of Chain Sukh. It is by  virtue
\nof section 172 that the claim is made by the appellant. Smt.
\nMainia as the married sister of Chain Sukh under clause\t (m)
\nof  section 171. We have already indicated that the  founda-
\ntion  of  Smt.\tMainia’s claim is non-existent.\t If  such  a
\nsituation,  the appellant’s claim was rightly  negatived  by
\nthe High Court.\n<\/p>\n
    The\t learned counsel for the appellant referred  to\t the
\ndecision of this Court in Ram Jivan v. Smt. Phoola<\/a> (dead) by
\nLrs. & Ors., [1976] 3 SCR 262. In view of the above  conclu-
\nsion,  obviously  that\tdecision  has  no  application.\t The
\nlearned counsel also referred to two Single Bench  decisions
\nof the Allahabad High Court, namely, Jaganath and others  v.
\nDeputy\tDirector  of  Consolidation  Gorakhpur\tand  others,
\n[1976]\tAWC  654 and Chhiddoo Singh v.\tDeputy\tDirector  of
\nConsolidation  & others, [1976] AWC 809. The first  decision
\ndid not involve this point. The learned single Judge in\t the
\nother decision under provisions of the Agra Tenancy Act took
\nthe view that when a widow initially enters into  possession
\nas a limited owner, the character of her subsequent  posses-
\nsion  after remarriage cannot change in the absence of\tevi-
\ndence of a change in her animus. It was held that in such  a
\ncase it is for the widow to show that later she had asserted
\nher absolute right and was possessing adversely as an  abso-
\nlute owner in order to prescribe for absolute ownership.  It
\nis  sufficient\tfor  us to say that  the  legal\t consequence
\nflowing from sections 36 and 180 of the U.P. Tenancy Act  is
\nenough to indicate that the character of widow’s  possession
\nafter  her  remarriage altered by operation of law  and\t any
\nfurther animus is not required to bring about the effect  of
\nthe statutory provisions which ensue on expiry of the  limi-
\ntation\tprescribed  for a suit to evict her.  That  decision
\ndoes not indicate consideration of the effect of a provision
\nlike  section 180(2) of the Tenancy Act, assuming there\t was
\nsuch  a\t provision  in the Agra Tenancy Act  and  also\tthat
\nsection 24 of the Agra Tenancy Act was similar to section 36
\nof the U.P. Tenancy Act. These decisions are clearly distin-
\nguishable. However, if the other decision
\n695<\/span>
\nunder  the  Agra Tenancy Act is read as\t taking\t a  contrary
\nview, we are unable to subscribe to that view.
\n    In the result, the appeal fails and is dismissed. Howev-
\ner, in the circumstances of the case, we make no order as to
\ncosts.\n<\/p>\n
R.S.S.\t\t\t\t\t\tAppeal\tdis-\nmissed.\n696<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Mainia vs Deputy Director Of Consolidation … on 4 August, 1989 Equivalent citations: 1989 AIR 1872, 1989 SCR (3) 685 Author: J S Verma Bench: Verma, Jagdish Saran (J) PETITIONER: SMT. MAINIA Vs. RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION & OTHERS DATE OF JUDGMENT04\/08\/1989 BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-188960","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. 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