Rights of Bhumidhar with non-transferable

right

Dr. Nand Kishor

Associate Professor

Law

University of Lucknow

Lucknow

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Subject Name Land Law

Topic Name Rights of Bhumidhar with non-transferable right

Course (Class) LL.B 3 year

Year/Semester 5th semester

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 Rights of Bhumidhar with non-transferable rights-

The bhumidhar with non-transferable rights is second main tenure holder . They
have following rights:
1. Use of land: A bumidhar with non-transferable rights shall have the right to
the exclusive possession of all land of which he is bhumidhar and to use such land
for any purpose connected with agriculture horticulture and social forestry and
animal husbandry which includes pisciculture and poultry farming.
According to Section 142 (2) a bhumidhar with non transfarable right may
also use his holding for the purpose connected with agriculture etc will depend
upon the fact and circumstance of each case. A bhumidhar with non-transferable
rights, however, may use his land for tethering of cattle, storing manure, keeping
foddder, storing cow-dung cakes, keeping khalihan and fixing of kolhu (Chaudhary
Surat Singh v Paltoo. 1963 R.D 80), as these are purposes connected with
agriculture or animal husbandry . If such bhumidhar digs a pond in his holding for
irrigation purposes, then the land must be held to be used for agricultural purpose
Though a bhumidhar with non-transfarable rights can not use his holding for
residential purposes, but he build a house covering a small portion of the land, it
must be deemed to be used for a purpose connected with agriculture, horticulture
or animal husbandry.
Bhumidhar with non-transferable rights has used his holding against the
provisions of Act results following consequences.
(a) Abandonment: When a bhumidhar with non-transferable rights (except
minor, lunatic or idiot) has not used his holding for the purpose connected with
agriculture etc for two consecutive agricultural years, the land may be declared by
Tahisldar as abandoned land.

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(b) Admission of asami to the holding of a disabled bhumidhar: Where a
bhumidhar with non-transferable right being minor, lunatic or idiot has not used his
holding for a purpose connected with agriculture, horticulture, animal husbandry
pisciculture or poultry farming for two consecutive agriculture years, the Land
Management Committee may a admit on behalf of such bhumidhar any person as
asami to the land.
(c) Lease by the Collector: Where a bhumidhar with non-transferable right has
not been used his holding for three consecutive years immediately preceding for a
purpose connected with agriculture, horticulture, animal husbandry, pisciculture or
poultry farming, and the area of such land is more the 12½ acres (20 pucca bighas),
the Collector may let the land to any person as an asami.
(2) Rights regarding transfer: The interest of a "bhumidhar with non-
transferable rights is not transferable, but it is heritable and permanent (Section 152
(2)) The State Government decided that the person who is holding the land with
non-transferable right of bhumidhari, such person may have better right and title
in the land and may transfer in favour of other person, for achieving the purpose,
an amendment was, introduced in the Act called "Uttar Pradesh Zamindar,
Abolition and Land Reforms (Amendment) Act, 1995 (Section 152(2)).
By the amendment new Section 131-B has been inserted after Section
Section 131-A of the Act. Thus every person who is bhumidhar of non-transferable
right shall be bhumidhar with transferable right if he has already completed ten
years (Brihma Dutt Singh v. Addl. Commissioner and others, 2004 R.D. 665 HC)
or more from the date of allotment of land and other persons, who have been
allotted later on and has not completed the period of ten years, shall be bhumidhar
after completion of the required period.
After acquiring the bhumidhari right in land, such person have right to
alienate the land by way of sale to any person but after transfer of land, the
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transferor shall become in future unelligible for lease of the land vested in Gram
Sabha or land declared as surplus under the Uttar Pradesh Imposition of ceiling on
Holdings Act 1960.
But followings are exceptions to his non transferable interest;
1. He may mortgage without possession of his interest in the holding as a
security for a loan taken from (u/s 152 (3))
(a) The State Government by way of taqavi;
(b) a Co-operative Society; or
(c) the State Bank of India; or
(d) any other Bank which is a Scheduled Bank or the Reserve Bank of India.
(e) the Uttar Pradesh Agro-Industrial Corporation Ltd,
2. He may transfer his interest by way of gift to a recognised educational
institution for a purpose connected with instructions in agriculture,
horticulture or animal husbandry, provided the land has not already been
mortgaged to the State Government or to a Co-operative society, etc (u/s
152(3)). But he cannot sell his interest even to a co-operative society or to a
recognized educational institution for providing instruction in agriculture or
animal husbandry.
3. He can let out his land to a recognised educational institution for a purpose
connected with instructions in agriculture, horticulture or animal husbandry
(Section 156(1)), Clause (6)
4. He can make a lease of his land to anybody if he himself comes within seven
categories of disabled persons enumerated under Section 157 (1) of the Act
To grant the benefit of Section 131-B of the Act, 1950, the legislature has
not provided any procedure under the schedule II. It is not within the competence
of the competent authority or the village lekhpal to declare the transferable right of
Bhumidhar, merely on the basis of completion of period of 10 years. The question
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came up before Hon'ble High Court in case of Chiraunji v. State of U.P. &
Others,(Reported in 2015 (128) RD 148) it was held that whose procedure has not
been prescribed under the Schedule of the Act. It is bounden duty of the competent
authority to grant the remedy merely after institution of declaratory suit under
Section 229-B of the Act.
Consequences of illegal transfer-If a bhumidhar with non-transferable rights
makes any transfer in contravention of the provision of the Act, the transfer shall
be void (Section 166) and the following consequences shall ensue.
(1) The subject-matter of transfer, shall, with effect from the date of such
transfer, be deemed to have vested in the State Government free from all
encumbrances.(Section 167 read with Section 166, as amended by the UP
Land Laws (Amendment) Act,1982,wef 3-6-1981)
(2) The trees, crops and wells, existing in the holding on the date of the
transfer shall, with effect from the said date be deemed to have been
vested in the State Government free from all encumbrances.
(3) The transferee may remove other movable property or the material of any
immovable property existing on such land on the date of the transfer,
within such time as may be prescribed.
Where any land, tree, crop or well has vested in the State Government
because of void transfer, any person in unauthorized occupation thereof may be
evicted by the Collector, and for that purpose Collector may use or cause to be
used such force as may be necessary.
A bhumidhari holding with non-transferable rights against execution of a
Decree-The interest of a bhumidhar with non-transferable rights being non-
transferable; his holding cannot be sold in execution of a decree. If he takes a
loan from a creditor and the creditor gets decree against him, the holding of the
judgment-debtor cannot be attached and sold in execution of the decree.
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 Though such holding is not transferable, yet under Section 286 (2) of the Act,
sums of money recoverable as arrears of land revenue may be recovered by
attachment and sale of any holding of the defaulter of which he is a bhumidhar
whether with transferable rights or with non-transferable rights.
3- Right to exchange (Section 151)
Same as with a bhumidhar with transferable rights
4- Right to sue for division (Sections 176 to 181)
Same as in the case of a bhumidhar with transferable rights
5. Right to surrender
This right or privilege is available to "bhumidhar with non-transferable rights" and
asami. It is never available to bhumidhar with transferable rights. An asami may
surrender the whole of his holding and not the part of it. But a bhumidhar with
non-transferable rights may surrender his holding or any part thereof (Section 183
and 184) . The application for surrender must be made to the Tahsildar and a notice
to the Land Management Committee before April 1, and the possession must be
given up before July 1, otherwise he shall, notwithstanding the surrender, not be
relieved from the payment of the land revenue of the holding for the agricultural
year next following the date of surrender.
Restriction
Where the land has been mortgaged in favour of State Bank of India, or a co-
operative society, or a scheduled bank or the Reserve Bank of India, or U.P. Agro-
Industrial Corporation Ltd., and the mortgage has been fully redeemed, the holding
or any part thereof should not be surrendered(Proviso to Section 183) .
6- Right to bequest
(Same as in the case of bhumidhar with transferable rights, if under Section 131-B,
the non-transferable right of bhumidhar has already been competed the period of
ten years or more.)
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