SMT. BULAKI (DEAD) BY LRS. v. LAL DHAR AND ORS.

The following Order of the Court was delivered :

This appeal, by special leave, arises from the Judgment dated H 205

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A December 14, 1977 passed by the Allahabad High Court in Second Appeal No. 500/65.

The admitted facts are that the last male-holder in the family, Bechan had two wives, Bhungi and Bhikni. Bhungi and given birth to three daughters, Gulabi, Sulabi and Bulaki, the appellant. Gulabi died on 7.2.1963. Smt. Sulabi and Smt. Bulaki were substituted as legal heirs after the demise of Bhungi. Bechan's second wife Bhikni had a son, Laldhar, born to her former husband, and brought him along with her when she was married to Bechan. After her marriage with Bechan she ha:d a daughter by name Gunia. During the life time of Bechan, who was a bhumidar under the U.P. -Zamindari Abolition and Land Reforms Act, 1950, he had ex- ecuted three gift deeds in favour of Laldhar. The Fist two gift deeds were made in the year 1951 and the third gift deed on 18.11.57. When the said gift deeds were challenged by the appellant, the appellate Court and the High Court upheld the validity of the fist two gift deeds and declared the third gift deed to be invalid.

Shri Juneja, learned counsel appearing for the appellant has con- tended that the permission for alienation was not properly obtained from competent officer and that, therefore, it was invalid. He has pointed out that the first two gift deeds were made on June 1, 1951 and June 2, 1951. E On 1.1.1951 an application for permission to the Sub-Divisional Officer was made and the sanction thereof was granted on the next day, namely, June 2, 1951. By operation of the proviso to Section 24 of the Act, it is contended that even subsequent permission validates the alienation by way of a gift. We find no infirmity in the grant of sanction. It is then contended by Sri p Juneja that the Sub-Divisional Officer had no jurisdiction to grant the permission since the lands were situated outside his Division. The High Court has looked into the map and held that the lands are situated in that Sub-Division only and that, therefore, he has got jurisdiction to grant the -- permission. It then contended that it was not the plea of either of the parties and the High Court would not have gone into that question for the first time. May be the learned counsel is right in this behalf, but with a view to satisfy 4is conscience the learned Judge had secured the offi~ial map and looked into the area and found, as a fact, that the lands were. situated within the area of the officer who granted permission. Even though it is .. found to be not legally permissible, since the learned Judge has done it to do justice, we do not interfere with the finding in the appeal under Article

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136. Therefore, the two gift deeds of June 1/2, 1951 are valid. Under those two deeds, Laldhar has got the properties and that therefore, the proper- · ties are not open to succession.

As regards the property under the third gift deed, it is seen that Bechan died in the year 1957. As a consequence, under Section 171(b) of the Act succession is open and under clause (b) the widow succeeds the property. Since he had left behind him two widow, the two widows jointly succeeded to the property. Since pending the proceedings Bhungi died, the co-widow, namely, Bhikni succeeded to the estate by operation of Section 175 of the Act which reads as under :

"175. Passing of interest by survivorship. - In the cases of a co- C widow, or a co-tenure-holder who dies leaving no heir entitled to succeed under the provisions of this Act, the interest in such holding shall pass by survivorship."

Pending this appeal the co-widow, viz., Bhikni too died. D In consequence, if the co-widow leaving behind no heirs entitled to succeed under the provisions of the Act, the interest in such holding shall pass by survivorship. Since she had left behind one heir-daughter, namely, Guniya and equally Bhungi left behind her three daughters Guiab~ Sulabi and Bulaki, and Gulabi having pre- deceased the mother, Sulabi, Bulaki E and Guniya would succeed to the estate of male holder by operation of Section 172(1)(b) read with 171(1)(g) of the Act. Under these circumstan- ces, in respect of the properties conveyed under the third gift deed, dated November 18, 1957, all the three are entitled to 1/3rd share each.

The appeal is accordingly allowed and the decree of the trial Court F stands modified to the above extent. No costs.

R.P. Appeal allowed.