Devolution

 This sec provides one of the essential attributes of ownership

bestowed on bhumidhar with transferable rights that is to make a
will. Sec 169 and 170 of the repealed act make corresponding
provisions. Under these provisions btr can make will u/s 169 but
BNTR cannot do so u/s 170. the two sec of the repealed act have
now been combined into one section that is sec 107.
 What is will? It can be defined as the legal declaration of the
intention of a testator with respect to his property which he
Sec 107 desires to be carried out after his death. A will is a method of
transferring a holding by B as he wishes excluding his successors
even a stranger. In a will property of the testator devolves only
after his death.
 Kaniz zohra v. Dy Director of consolidation
In this case it has been held that a will is not a transfer but a mode of
devolution of property. Devolution means transference of a right to
a successor or of a power from one body to other.
 History of will :
 Position before 1975 and after.
 Up land laws amendment act 1975.
 Not retrospective.
 Who can make a will?
 Only BTR CAN bequeath his property or any part by way of will not BNTR.
 Who cannot make a bequest?
 BNTR
 ASAMI
 Mode for making of bequest:
Bequest of interest in any holding can be made by will.
Procedure for bequest:
Sec 107(3) every will under this sec shall notwithstanding anything contained in any law, custom or
usage must be :
In writing
Attested by two witnesses
Registered
Supported by prior permission of collector if it has been made by SC AND ST to non SC AND ST.
consequences of will made in contravention: 107(5) shall be void.
Roop narain v. ram Chandra in this case it has been held that it is not essential that the
testator should be B on the date on which he executed the will, it is suffice that he had
acquired bhumidhari right before his death. The decision of the case still holds good.
P was an occupancy tenant. In 1947 he executed the will in respect of occupancy
tenancy also. He became sirdar after abolition of zamindari system he then acquired
bhumidhari rights by depositing the specified amount. He died in 1958. the question
arose whether the will in respect of occupancy tenancy was valid. The division bench
of the High court held that will was valid and effective because the testator obtained
bhumidhari right in respect of that holding before his death.
In Gaon Sabha v. Dy. Director of consolidation, mulli singh was a sirdar having no right
to make a will. Even then he made a will in 1976 in favour of Balwant singh. Mulli singh
died in July 1977. then question arose as to whether the will is effective or not .
Consolidation court held that it is valid. Aggrieved by the decision gaon sabha filed
writ petition. It was held that it is valis as U.P LAND LAWS AMENDEMENT ACT 1947
effective from 1977 January it converted a sirdar into bhumidhar with transferable
right. As on the his death mulli singh was undisputedly a bhumidhar with transferable
rights then the will was effective and the legatee Balwant singh was entitled to
succeed.
 By will life interest can be created
 Amar singh v. Dy Director of consolidation leading case on the
point,
 Testator may give legatee only life estate then on the death of
such legatee the holding shall be devolved on the person specified
in the will.
 Amar singh, chukkhan executed will directing life estate of wife
therafter to two Daughters.
 Smt gilia made will in favour of ammr singh.
 Assistant director of consolidation
 Writ petition to HC
 SC
  General order of succession to male bhumidhar, asami
or government lessee.- (1) Subject to the provisions of section
107, where a bhumidhar, asami or government lessee, being a
male dies, his interest in his holding shall devolve upon his heirs
being the relatives specified in sub-section
 in accordance with the following principles, namely:-
 the heirs specified in any one clause of sub-section (2) shall take
simultaneously in equal shares;
Section 108  the heirs specified in any preceding clause of sub-section (2) shall take
to the exclusion of all heirs specified in succeeding clauses, that is to
say, those in clause (a) shall be preferred to those in clause (b), those
in clause
 (b) shall be preferred to those in clause (c) and so on, in succession;
 if there are more widows than one, of the bhumidhar, asami or
government lessee, or of any predeceased male lineal descendant,
who would have been an heir, if alive, all such widows together shall
take one share;
  the widow or widowed mother or the father’s widowed mother or the widow
of any predeceased male lineal descendant who would have been an heir, if
alive, shall inherit only if she has not remarried.
 The following relatives of the male bhumidhar, asami or government
lessee are heirs, subject to the provisions of sub-section (1), namely:-
 widow, unmarried daughter and the male lineal descendants in the male line
of descent per stirpes:
 Provided that the widow and the son of a predeceased son how low-so-
ever shall inherit per stirps the share which would have devolved upon the
predeceased son had he been alive;
 mother and father;
 married daughter;
 brother and unmarried sister being respectively the son and the daughter of
the same father as the deceased, and son of a predeceased brother, the
predeceased brother having been the son of the same father as the deceased;
 son’s daughter;
 father’s mother and father’s father;
 daughter’s son;
 married sister;
 half sister, being the daughter of the same father as the
deceased;
 sister’s son;
 half sister’s son, the sister having been the daughter of the same
father as the deceased;
 brother’s son’s son;
father’s father’s son;
 father’s father’s son’s son;
 mother’s mother’s son.
  Succession to woman inheriting interest as a female heir.-
Where before or after the commencement of this Code, any
woman inherits the interest of a male bhumidhar, asami or
government lessee in any holding, and such woman dies, marries
or remarries after such commencement, then, her interest in the
holding shall, subject to the provisions of sections 107 and 112
devolve upon the nearest surviving heir of the last male
bhumidhar, asami or government lessee, as the case may be.
109  Explanation. - The expression ‘nearest surviving heir’ in this
section means the heir ascertained in accordance with section 108.
 Provided that if any woman inheriting as a daughter, who has
surviving heirs specified in clause (a) of section 110 of this Code,
dies, her interest in the holding shall devolve upon heirs
specified in clause (a) of section 110.
  Succession to woman holding otherwise than as a female heir.- Where any female
bhumidhar, asami or a government lessee dies, after the commencement of this Code,
then her interest in any holding or its part shall subject to the provisions of sections 107
to 109 devolve, in accordance with the order of succession given below:-
 son, unmarried daughter, son’s son, son’s son’s son, predeceased son’s widow, and
predeceased son’s predeceased son’s widow, in equal shares per stirpes:
 Provided firstly that the nearer shall exclude the remoter in the same branch: Provided
secondly that a widow who has remarried, shall be excluded;
 husband
 married daughter;
110 
daughter’s son;
 father;
 widowed mother;
 brother, being the son of the same father as the deceased and brother’s son per stirpes;
 unmarried sister;
 married sister; 
 sister’s son.
  Section 111 saving as to religious endowments etc:
 This sec provides the saving clause which means the provisions of this sec
will not apply to the following: a hindu devasthan, math debutter property,
muslim waqf.
 Devolution of management of above property will be made in accordance
to the personal laws of hindu or muslim as the case ma be.
 Sec 112 Interest of co-tenure-holders to pass by survivorship.- (1) Where
before or after the commencement of this Code, two or more co-widows
111 inherit the interest of a male tenure-holder, and any one of them dies or
remarries after such commencement without leaving any heir entitled to
succeed in accordance with section 108, the interest of such co-widow shall
pass by survivorship to the surviving widow, and where there are two or
more surviving co-widows, then to the surviving co-widows in equal shares.
 (2) Where any land is held by two or more co-tenure holders, and any one of
them dies after the commencement of this Code without leaving any heir
entitled to succeed under sections 108 to 110, the interest of such co-tenure
holder shall pass to the surviving co-tenure holders in equal shares.
113 Persons other than Indian citizens and persons of Indian
origin not to inherit.- Notwithstanding anything contained in this
Code or any other law for the time being in force, no person other
than an Indian citizen and person of Indian origin who has acquired
citizenship of any other country shall be entitled to acquire any land
or any interest therein either by bequest or by inheritance.

114 Other conditions regarding devolution.- The devolution of

interest in any holding under this Chapter shall be subject to the
following conditions :-
 If a bhumidhar, asami or government lessee dies intestate, and
at the time of his death, a child was in the womb who was
subsequently born alive, then such child shall have the same right
to inherit as if he or she had been born before the death of such
bhumidhar, asami or government lessee and the inheritance
shall be deemed to vest in such a case with effect from the date of
death of such bhumidhar, asami or government lessee;
 Where two persons have died in circumstances rendering it
uncertain whether either of them and if so which survived the other,
then for purposes of devolution of interest in any holding, it shall be
presumed, until the contrary is proved, that the younger survived
the elder;
 A person who commits murder of a bhumidhar, asami or
government lessee, or abets the commission of such murder, shall
be disqualified from inheriting the interest of the deceased in any
holding;
 If any person is disqualified from inheriting the interest in the
holding of any bhumidhar, asami or government lessee under
clause (c), such interest shall devolve as if the disqualified person
had died before the death of such bhumidhar, asami or
government lessee.
 Explanation.-In this section, the expression ‘murder’ means any
offence punishable under section 302, section 304, section 304-B,
section 305 or section 306 of the Indian Penal Code.