# Babu Lal v. Sri Brij Gopal & others

- **Citation:** High Court of Judicature at Allahabad #39535
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-lal-v-sri-brij-gopal-others-39535
- **Pages:** 4

## Text

50 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
date of decision on that application or where
an application for review or on appeal is filed
against such decision, from the date decision
on such application or appeal."

9. Section 16 of the Act which
provides that the District Magistrate by the
order require the landlord to let any building
which is or has fallen vacant or is about to fall
vacant. He will have jurisdiction to pass
allotment order in case there is a deemed
vacancy under section 12 of the Act. The
landlord
can
intimate
to
the
District
Magistrate/Rate Control and Eviction Officer
about the vacancy whether it is actual
vacancy,
deemed
vacancy
or
expected
vacancy. In, Irshad Ahmad Vs. VII Additional
District Judge. Aligarh and others, 1994(2)
ARC37, it was held that the intimation can be
given by the landlord in regard to deemed
vacancy as contemplated under section 12 of
the Act.

10. Secondly in the present case the tenant
himself has intimated the date of expected
vacancy to the landlord and the landlord in
pursuance of the said intimation had given
notice
to
the
District Magistrate. The
intimation given by the landlord is fully
covered under the section 15 (1) of the Act.

11. In view of the above the writ petition is
allowed. The order passed by the Rant
Control
and
Eviction
Officer
dated
14.101.980
and
the
order
passed
by
respondent no.1 dated 19.12.1980 are hereby
quashed. The Rate Control and Eviction
Officer shall now decide the allotment
application in accordance with law taking into
account the nomination made by the landlord.
Considering the facts and circumstances of
the case the parties shall bear their own costs.

Petition Allowed.
----------

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2ALL] Babu Lal V Sri Brij Gopal & others 51

By the Court

1. This defendant's second appeal is
against the partition decree passed by the trial
court and affirmed by subordinate appellate
court.

2. The following relevant pedigree will
make position clear as regards the rights of
the parties in the property in dispute:-

Ghasi Ram
Widow- Maharani
/
---------------------------------
 /

/

 (Daughter)

 (Daughter)

 Vidya Bai

 Bunda Bai

/

 (son)

 Brij Gopal

 (Plaintiff)

3. Ghasi Ram had purchased the property
in dispute from one Lala Gopal. He died
leaving behind him his widow Maharani and
two daughters, namely, Vidya Bai and Bunda
Bai. On death of Maharani, her two daughters
inherited the property in dispute. Bunda Bai
died some times in the year 1950. She was
succeeded by his son Brij Gopal.

4. Brij Gopal filed Suit No. 64 of 1991 for
partition against Babu Lal, Ram Kishan and
Mahipal on the allegations that Maharani died
leaving behind her two daughters. They
equally inherited the rights in the property in
question. He is son of Bunda Bai and is
entitled to half share in the property. An
application for amendment of the plaint was
filed alleging further that Vidya Bai had
executed
a
Bakshishnama
on 2.1.1946,
whereby she made gift of her entire property
in his favour. The suit was contested by the
defendants. Babu Lal defendant appellant
alleged that Bunda Bai had only life interest
and as she died prior to the year 1956, her
right and title were inherited by Vidya Bai,
who was the next reversioner and the plaintiff
did not get any right in the property in
dispute. She became absolute owner of the
property in the year 1956 after enforcement
of Hindu Succession Act, 1956. She had sold
the property in question to one Chandra Bhan
on 19.9.1996. Chandra Bhan sold it to Babu
Lal, the appellant on 31.1.1969. He has been
in possession of the property in dispute. It was
denied that Brij Gopal was son of Bunda Bai
and the defendants second set, namely, Ram
Kishan and Mahipal based their claim that
they had obtained 'patta' from the Gaon
Sabha in respect of the disputed land and the
plaintiff has no right and title to the property
in question.

5. The trial court framed various issues
and held that the plaintiff was son of Bunda
Bai. On the death of Maharani her both the
daughters, namely, Bunda Bai and Vidya Bai
inherited the Rights in the property and the
plaintiff is entitled to half share in the
property. The suit was, accordingly, decreed
for partition. The claim of defendant Nos.2
and 3 was rejected on the finding that Gaon
Sabha had no right to execute any 'patta' in
favour of defendant nos. 2 and 3. Babu Lal
filed an appeal against the judgment of the
trial court. The appellate court has dismissed
the appeal on 28.11. 1998.

6. It is undisputed that the two daughters
succeeded to their mother but their interest
was limited under Hindu Law. Bunda Bai
died prior to the enforcement of Hindu
Succession Act, 1956. On her death her rights
will not be inherited by her son Brij Gopal but
the next heir of her father, namely, her sister
Vidya Bai in accordance with the principles of
succession under Hindu Law (vide (1879)
61A 15 Chotey Lall Vs. Chunno Lall, (1881)
8 I.A 99 Mutta Vs. Dorasinga Tevari I.L.R.
(1878) 1 All. 608 baijnath Vs. Mahabir and
I.L.R. (1886) 8 Allahabad 365 Sant Kumar
Vs. Deva Saran.
52 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
7. The core question is the effect of the
execution of Bakshishnama executed by
Vidya Bai, the next reversioner in favour of
Brij Gopal son of Bunda Bai. A Presumptive
reversioner is entitled to enter into a
compromise or relinquish his share in favour
of the next reversioner. Brij Gopal, after the
death of Bunda Bai, his mother was the next
reversioner in respect to the estate of Vidya
Bai.
Vidya
Bai
having
executed
a
Bakshishnama in favour of Brij Gopal and
having put him in possession, the transferee
from Vidya Bai is estopped from challenging
the
same. In Krishna Behari lal Vs.
Gulabchand and others, AIR 1971 Supreme
Court, 1041 it was held that where under a
compromise the presumptive reversioners
purported to give a portion of the suit
properties
absolutely
to
the
widow
in
consideration of her giving up her claim in
respect of the other properties, they would be
estopped from contending that they are
entitled to succeed to the properties given to
the widow. The Apex Court in S. Shanmugam
Pillai and others Vs. K Shanmugam Pillai and
others, AIR 1972 Supreme Court 2069
clarified that there are three classes of
estoppels that may arise for consideration in
dealing with reversioner's challenge to a
widow's alienation. They are(1) that which is
embodied in Section 115 of the Evidence Ac,
(2) election in the strict sense of the term
whereby the person electing takes a benefit
under the transaction and (3) ratification i.e.
agreeing to abide by the transaction. A
presumptive reversioner coming under any
one of the aforesaid categories is precluded
from
questioning
the
transaction,
when
succession opens and when he becomes the
actual reversioner.

8. After the death of Bunda Bai if it is
taken that Vidya Bai as the next reversioner
succeeded to her, she was bound by
Bakshishnama which she had executed earlier
unless it was shown to have been obtained by
duress, undue influence or fraud. The deed
was executed not in favour of any stanger but
to the next reversioner i.e. son of Bunda Bai.
Vidya Bai, during her life time never
challenged the said deed. It has further been
found that Vidya Bai had not executed the
sale deed to Chandra Bhan in respect of the
property in respect of which she had executed
Bakshishnama.

9. The reversioner is otherwise also
entitled to surrender his rights in favour of the
next reversioner. In this connection a passage
from Mulla's Principles of Hindu Law (para
197 14th Edition) is quoted:-

"It is settled by long practice and
confirmed by decisions that a Hindu widow
can renounce in favour of the nearest
reversioner if there be only one, or of all the
reversioners nearest in degree if they are more
than one at the moment. That is to say, she
can, so to speak, by voluntary act operate her
own death. The principle on which the whole
transaction rests is the effacement of the
widow-
an
effacement
which
in
other
circumstances is effected by actual death or
by civil death-which opens the estate of the
ceased husband to his next heirs at that date."

10. The courts below have recorded
concurrent
findings
that
the
plaintiffrespondent has been in possession over the
property since the date of execution of
Bakshishnama in his favour. The appellant
having not filed any suit for possession
against him, during the period of limitation
for ejectment, cannot claim that he is now
exclusive owner of the property in dispute.

11. I do not find any merit in this second
appeal and it is, accordingly, dismissed.

Second Appeal Dismissed.
----------
2ALL] Tarabi & others V The State of U.P. & another 53
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By the Court

1. This is a petition under Section 482 Cr.
P.C. to quash the orders dated 1.12.98 and
22.5.99 passed by the S.D.M., Rampur in
Case No. 13 of 1997 u/s 145 Cr. P.C. and
Special Judge, Rampur in Criminal Revision
No.194 of 1997 by which they have held the
opposite party no.2 to be in possession of the
disputed agricultural land.

2. I have heard Sri Rahul Sripat, learned
counsel for the petitioners and Sri R.S.Verma,
learned counsel for the opposite parties and
perused the record.

3. The contention of the learned counsel
for the petitioners is that the plots in dispute
are plots no.101, 277, 279, 285 and 286
situated in village Paimpur, Tehsil Sadar,
District Rampur. Regarding these plots the
petitioner filed a suit for injunction to restrain
the opposite party no.2 from interfering in the
possession of the petitioners over the said
plots. The said suit was decreed on 15.3.89 by
the IV Additional Munsif, Rampur and the
copy of the judgement is Annexure-2. It is,
therefore, contended that the rights of the
parties have been decided by the civil court
and therefore, the proceeding u/s 145 Cr. P.C.
are not maintainable and the impugned orders
are liable to be quashed. The learned counsel
in support of his case referred to "Smt.
Neelam Singh & Anr. Versus State of U.P.,
1999 (1) JIC 607 (All)." It has held that if the
rights of the parties have been decided by the
civil court, the proceedings u/s 145 Cr. P.C.
cannot be taken.

4. As against this, the contention of
opposite party no.2 is that all the plots in
dispute originally belong to Smt. Allahrakhi,
who died in the year 1976. That she has a
prostitute and had illicit relations with Anwar
Ali, father of Tarabi, petitioner no.1. On the
basis of the said relations Anwar Ali posted
himself as husband of Allahrakhi and filed a
suit under Sections 229-B and 209 U.P.Z.A.
& L.R. Act before the S.D.M., Rampur, which
was numbered as Case No.32 of 1987-88,
which was decided against him and the appeal
was also dismissed. However, Board of
Revenue has set aside both the judgements
and remanded the case on 29.1.96, which is
still pending. Anwar Ali died and in his place
Tarabi was substituted and other petitioners
are relations of Tarabi. That opposite party
no.2 is the daughter of Allahrakhi. Allahrakhi
died in the year 1976 and after her death, the