Civil Appeal No 901 of 1968
Appeal by special leave from the judgment and order dated the 5 10 1966 of the High Court of Judicature at Allahabad in Special Appeal No 97 of 1965
J P Goyal and A G Ratnaparkhi for the Appellant
G N Dikshit and M V Goswami for Respondents
J This is an appeal by special leave against the judgment of a Division Bench of the High Court of Allahabad dated October 5 1966 and raises a question of law regarding the applicability of sections 172 and 174 of the UP Zamindari Abolition and Land Re forms Act 1950 Act No 1 of 1951
 It appears that the case had a checkered career and the dispute between the parties passed through several phases both before the Revenue Courts and in the High Court
In order to appreciate the point of law involved in this appeal it may be necessary to give a resume of be facts which culminated is the judgment of the High Court under appeal
The dispute refers to lands comprised in Khata Nos
1002 1344 and 1411 of village Bishunpur in the District of Rae Bareli UP
It is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons namely Gurdin Ramcharan and Ramadhin
Ramcharan appears to have died issueless but Ramadhin died leaving a widow Smt
Menda and a daughter from her Smt
Phoola who was respondent No 1
The other son Gurdin died leaving a son Jit who had contested the present proceedings against Smt
Phoola
During the pendency of the present proceedings Jit also died and the proceedings have been continued by his son Ram Jivan Lallu
The District of Rae Bareli fell in what was previously known as the Oudh Area of the United1Provinces
The dispute between the parties appears to have arisen on the death of Ramadhin one of the sons of Harbans who died in 1916 leaving behind his widow Smt
Menda
At the time of the death of Ramadhin in 1916 the tenancy of the lands in dispute was governed by the provisions of the Oudh Rent Act 1886 hereinafter referred to J as the Rent Act of 1886 
Under the provisions of the Rent Act of 1886 Smt
Menda was to continue in possession of the lands as an heir of Ramadhin but only during the fixed period of the tenancy on the rent payable to the landlord and was not entitled to renewal of the same
The terms and conditions of the tenancy at the time of the death of Ramadhin were governed by s48 of the Rent Act of 1886 which applied to the oudh Area where the lands in dispute were situate
Under s48 of the Rent Act of 1886 it is obvious that on It the death of a tenant his widow was to continue in occupation of the lands for the unexpired portion of the period for which the deceased tenant might have held the holding
Accordingly Smt
Menda continued to occupy the lands after the death of her husband in 1916
Meanwhile five years later the Rent Act of 1886 was amended by UP Act 4 of 1921 under which the status of a statutory tenant was con feared on a person who was in possession of the lands on the date when the amendment came into force
The amendment introduced a substantial change in s48 of the Rent Act of 1886 and added clause 118 to s3 which runs thus 18 Statutory tenant means a tenant to whom section 36 or section 37 applies
Explanation
A person who succeeds as an heir of a1statutory tenant under section 48 shall not be deemed to be 265 a statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding under section 48 Provided that when a holding is held by two or more co tenants no person who succeeds as an heir of any such co tenant under section 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which the heir of the last surviving co tenant is entitled to retain occupation of the holding under section 48 By virtue of the Explanation extracted above a tenant to whom sections 36 and 37 applied would be deemed to be a statutory tenant
Section 36 of the Rent Act of 1886 runs thus Every tenant not being a tenant with a right of occupancy or a sub tenant shall be entitled to retain possession of the holding occupied by him at the commencement of the Oudh Rent Amendment Act 1921 at the rent then payable by him for a period of ten years from the date of the last change in his rent or the last alteration in the area of the holding or where no such change or alteration has taken place from the date on which the tenant was admitted to the occupation of the holding As Smt
Menda was in possession of the holding at the date when the amendment came into force she would be clearly governed by section 36 and not section 37 of the Rent Act of 1886 which deals with tenants who were admitted to the occupation of the holding after the coming into force of the amendment
Under section 36 the widow was entitled to retain possession of the holding acquired by her for a period of ten years from the date on which she was admitted to the occupation of the holding
Thus the combined effect of section 318 and section 36 of the Rent Act of 1886 would be to clothe Smt
Menda with the status and the rights of a statutory tenant
Section 48 made the status of a statutory tenant heritable and provided as follows 1 When statutory tenant dies his heir shall be entitled to retain occupation of the holding at the rent pay able by the deceased for a period of five years from the date of the tenant s death and to receive compensation under the provisions of this Act for improvements if any made on the holding by his predecessor in interest but shall not be entitled to a renewal of the tenancy
Provided that a person who succeeds as an heir of a deceased tenant to whom clause e of sub section 1 of section 62A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for 266 the unexpired portion of the statutory period of the deceased tenant
2 Subject to any rights which he may have under section 22 as a representative of the deceased a collateral relative who did not at the date of the death of the deceased share in the cultivation of the holding shall not be deemed to be an heir of the deceased within the meaning of this section
 In the instant case as Smt
Menda had succeeded as an heir to her husband before the amendment of section 48 her case will be governed by the provisions of section 48 and she would be entitled to retain possession of the tenancy but not to a renewal thereof
It appears that soon after the death of Ramadhin the Court of Wards claimed that the tenancy had escheated to the State because Ramadhin had left no heirs and that Ramadhin was only a tenant at will
Menda appears to have resisted the claim of the Court of Wards
which resulted in proceedings before the Revenue Courts which ultimately found that Smt
Menda had acquired the independent rights of a statutory tenant and was therefore not liable to be ejected at the instance of the Court of Wards
This order was passed by the Assistant Collector on June 4 1926 and thereafter Smt
Menda continued in possession of the holding as a statutory tenant under the amended Rent Act of 1921
We might mention here that previous to the passing of the UP Tenancy Act 1939 the areas of Oudh and Agra in the United Provinces were governed by two separate Acts so far as the tenancies were concerned
The areas in Agra were governed by the Agra Tenancy Act and those in Oudh by the Oudh Rent Act
The UP Tenancy Act 17 of 1939 appears to have consolidated the tenancies in the whole of the Province and the legislature passed one Act which would govern all the tenancies in the entire Province
The UP Tenancy Act 17 of 1939 was passed on December 16 1939 and by section 2 there of the Agra Tenancy Act 1926 and the Oudh Rent Act 1886 were repealed
Section 29 of the Tenancy Act conferred the status of a hereditary tenant on any person who was a tenant of the land at the commencement of the Act
Thus Smt
Menda who continued to be in possession as a statutory tenant acquire the status of a hereditary tenant under section 29a of the Tenancy Act which runs thus 29
Every person belonging to one or another of the following classes shall be a hereditary tenant and subject to any contract which is not contrary to the provisions of section 4 shall be entitled to all the rights conferred and be subject to all the liabilities imposed on hereditary tenants by this Act namely a every person who is at the commencement of this Act a tenant of land otherwise than as a permanent tenure holder a fixed rate tenant a tenant holding on special terms in Oudh an ex Proprietary tenant an occupancy tenant 267 except as otherwise provided in this Act as a sub tenant or a tenant of sir  The Tenancy Act having conferred heritable rights on the tenants to which section 29 applied also laid down an order of succession in which the rights of the tenants would pass after the death of the tenant
Sections 36 and 37 of the Tenancy Act provided two different modes of devolution in the case of the death of a female tenant
Section 36 runs thus 36 1 When a female tenant other than a tenant mentioned in section 34 who either before or after the commencement of this Act has inherited an interest in a holding as a widow as a mother as a step mother as a father s mother or as a daughter dies or abandons such holding or surrenders such holding or a part of such holding or in the case of a tenant inheriting as a widow or as a daughter marries such holding or such part of such holding shall not withstanding anything in section 45 devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant other than a tenant who inherited as a father s father under the provisions of that section
x x x x  Section 37 of the Tenancy Act runs thus when a female tenant other than a tenant mentioned in section 34 or section 36 dies her interest in the holding shall devolve in accordance with the order of succession given below a male lineal descendants in the male line of descent Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive b husband c unmarried daughter d daughter s son e brother f brother s son
 It will be seen that under section 36 of the Tenancy Act the heirs of the husband precedence over the daughter or the unmarried daughter whereas in the case of a female tenant falling under section 37 of the Tenancy Act the unmarried daughter gets precedence over the brother the or brother s son
In other words the policy of the law was that where a female tenant died having inherited an interest in the property from her husband then the male heirs of the husband should get preference over the female heirs
Where however the female tenant had died having an independent and self acquired interest in the holding her property was to pass in a different manner
We are not concerned in this appeal with either section 36 or section 37 of the Tenancy Act because Smt
Menda had died some time in September 1952 L522SCI76 268 when the UP Tenancy Act 1939 had been replaced by the UP Zamindari Abolition and Land Reforms Act 1950 UP Act 1 of 1951 hereinafter to be referred to as the Abolition Act  In short therefore Smt
Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act of 1921 a hereditary tenant under the Tenancy Act and finally she acquired the status of a bhumidhar under the Abolition Act which came into force on July 1 1952
The relevant portion of section 18 of the Abolition Act may be extracted thus 18
1 Subject to the provisions of Sections 10 15 16 and 17 all lands a in possession of or deemed to be held by an intermediary as sir khudkasht or an intermediary s grove b held as a grove by or in the personal cultivation of a permanent lessee in Avadh c held by a fixed rate tenant or a rent free grantee as such or d held as such by 1 an occupancy tenant  ii a hereditary tenant iiia tenant on patta dawami or istamrari referred to in section 17 possessing the right to transfer the holding by sale
e held by a grove holder on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary lessee tenant grantee or grove holder as the case may be who shall subject to the provisions of this Act be entitled to take or retain possession as bhumidhar thereof As Smt
Menda had already become a hereditary tenant under the Tenancy Act she automatically acquired the status of a Bhumidhar under the Abolition Act and by virtue of the legal fiction created by s181 of the Abolition Act the lands having been vested in the State Government were deemed to have been permanently settled with the bhumidhar namely Smt
Menda in this case
It is the admitted case of the parties that Smt
Menda died some time in September 1952 ie Only a few months after coming into force of the Abolition Act
The controversy between the parties now centers round the question as to who would succeed to the tenancy left by Smt
Menda
In other words the matter to be decided is whether section 172 or section 174 of the Abolition Act would apply to the present case
It is not disputed that Smt
Menda died leaving a daughter Smt
Phoola and her husband s brother s son Jit
These were the two contending heirs for the property left by Smt
Menda
269 Sections 172 and 174 of the Abolition Act insofar as they are A relevant may be extracted as follows 172
1 When a bhumidhar sirdar or asami who has after the date of vesting inherited an interest in any holding a as a widow widow of a male lineal descendent in the male line of descent mother or fathers mother dies marries abandons or surrenders of  such holding or part thereof or b x x x the holding or the part shall devolve upon the nearest surviving heir such heir being ascertained in accordance with the provisions of Section 171 or the last male bhumidhar sirdar or asami
X X 174
When a bhumidhar sirdar or asami other than a bhumidhar sirdar or asami mentioned in Section 171 or 172 who is a woman dies her interest in the holding shall devolve in accordance with the order of succession given below a son son s son son s son son s son s son predeceased son s widow and predeceased son s predeceased son s widow in equal shares per stripes Provided firstly that the nearer shall exclude the remoter in the same branch Provided secondly that a widow who has remarried shall be excluded d daughter x x x g brother s son x x x x It is therefore clear that the mode of succession to the property of Smt
Menda would depend on the determination of the question whether Smt
Menda had inherited an interest in any holding or had an independent interest in the holding
This matter appears to have been canvassed before the Revenue Courts which upheld the plea of Smt
Phoola
To begin with on the death of Smt
Phoola Jit was successful in getting his name mutated in respect of the Khattas in dispute as being the nearest heir to Smt
Menda
The mutation was made by the Tahsilder Maharajgunj on July 30 1954
This mutation appears to have been challenged by Smt
Phoola who claimed to be the daughter of Smt
Menda and therefore a preferential heir to the property as compared to Jit
In 1957 Smt Phoola filed a suit under section 209 of the Abolition Act for the ejectment of Jit from the disputed lands on the ground that she was the sole legal heir of the 3 L522SCI76 270 property left by Smt
Menda
In the meanwhile in 1961 a notification under section 4 of the Consolidation Act was issued bringing village Bishunpur m which the lands in dispute were situate under the consolidation operations
Accordingly Smt
Phoola filed an application during the consolidation operations before the Consolidation officer Bachhrawan for correction of the records under section 101 of  the UP Consolidation of Holdings Act and prayed that the name of Jit in the Khattas in dispute may be struck off and Smt
Phoola s name may be mutated therein
The Consolidation officer accepted the plea of Smt
Phoola and he accordingly struck off the name of it from the Khattas and directed that Smt
Phoola being the legal heir of Smt
Menda her name be mutated in respect of the Khattas
Thereafter Jit filed an appeal against the order of the Consolidation officer before the Settlement officer Consolidations Tahsil Maharajgunj District Rae Bareli
The Settlement officer by his order dated December 26 1961 dismissed the appeal and upheld the order of the Consolidation officer
Thereafter Jit filed a second appeal be fore the District Deputy Director of Consolidation Rae Bareli which was permitted under the UP Consolidation of Holdings Act as it was in force then
The District Deputy Director of Consolidation upheld the plea of Smt
Phoola and held that she was entitled  to inherit the property of Smt
Menda being her legal heir in preference to Jit who was merely her husband s brother s son and relied upon section 171 of the Abolition Act and accordingly dismissed the appeal
Thereafter Jit filed a revision before the Joint Director of Consolidation who also dismissed the revision as being concluded by a finding of fact
Thereafter Jit filed a writ petition before the Allahabad High Court on December 21 1962 and the writ petition was allowed by the Single Judge on August 6 1965
Phoola then filed a special appeal before a Division Bench of the Allahabad High Court which reversed the decision of the Sing Judge and dismissed the writ petition filed by Jit upholding the plea of Smt
Phoola
There after Jit moved the High Court for granting leave to appeal to this Court and the same having been refused the present appeal by special leave has been filed in this Court
In support of the appeal Mr J P Goyal has submitted that the Division Bench as also the Revenue Courts had taken a wrong view of the law in holding that Smt
Phoola was entitled to succeed to the property left by Smt
Menda
The learned counsel submitted that the present case squarely fell within the ambit of section 172 of the Abolition Act since Smt
Menda had originally inherited the property from her husband Ramadhin and therefore according to the order of succession provided in section 171 of the Abolition Act which applied to section 172 Jit who was the son of the brother of Ramadhin would succeed in preference to the daughter of Smt
Menda
The respondents despite service did not appear and we requested Mr G N Dikshit to assist the Court amicus curiae and we are grateful to him for the valuable assistance he rendered to us in deciding the complicated issues of law involved in this appeal
Mr Dikshit submitted that at the time when Ramadhin died the tenancy was not heritable and therefore the  question of Smt
Menda having inherited the estate of her husband did 271 not arise and the tenancy held by Smt
Menda must therefore be regarded as having been acquired by her in her own right as her self acquired property and therefore the Division Bench of the High Court and the Revenue Courts were right in upholding the plea of Smt
Phoola
We have gone through the entire record as also the judgment of the Single Judge and the Division Bench and we think that the Division Bench of the High Court has taken an erroneous view of the law in the present case
The Division Bench found that although it was established that Smt
Menda had inherited the property from her husband Ramadhin yet the finding of the Revenue Courts was that she had acquired the status of a statutory tenant independently and since there was no error of law in this finding of the Revenue Courts there was no reason for the Single Judge to set aside the order of the Joint Director of Consolidation and allow the petition
It was argued before the High Court that the matter was concluded by a Division Bench decision of the Allahabad High Court in Mst
Jaini  ors
vs Ram Prasad1 and the High Court appears to have brushed aside this decision on a strange process of reasoning which does not appeal to us at all
the High Court observed as follows Mr Misra has strenuously contended that Jaini vs Ram Prasad 1supra is clear authority for the proposition that even in the case of a statutory tenant succession would devolve under section 36 which according to Mr Misra is a counter part of section 172 read with section 171 of the UP Zamindari Abolition Act
Jaini vs Ram Prasad supra is clearly distinguishable because that case came up in appeal before this Court and not in the form of a writ or an appeal against the decision of a learned single Judge in a writ petition
 It is obvious that whether a Division Bench decision is given in an appeal from an original suit or in a writ petition the ratio is binding on the subsequent Division Bench and merely because the previous Division Bench judgment was given in a suit the subsequent Division Bench cannot refuse to follow the same because it was hearing the proceeding in a writ petition
The rule of judicial precedent is a very salutary one and is aimed at achieving finality and homogeneity of judgments
In case the Division Bench under appeal wanted to differ from the previous decision of the Division Bench of the same Court it ought to have referred the matter to a larger Bench but it was not open to it to ignore completely the previous decision on illogical and unintelligible grounds as given by the High Court
We are further of the opinion that the Division Bench having found as a fact that Smt
Menda had inherited the property initially from her husband erred in law in not applying the provisions of section 172 read with section 171 of the Abolition Act as a result of which Jit being her husband s brother s son was entitled to succeed to the estate left by Smt
Menda in preference to Smt
Phoola the daughter
We now proceed to give reasons for this conclusion
1 AIR 1952 All 852
272 Section 172 of the Abolition Act as extracted above provides that when a bhumidhar who has after the date of vesting inherited an interest in any holding dies the holding would devolve upon the heirs in accordance with the order of succession mentioned in section 171 of the Abolition Act
It is manifest therefore that in order to determine the applicability of section 172 of the Abolition Act we must go to the origin of the title of the bhumidhar or the main source from  which the bhumidhar has derived interest in the holding
It may be pertinent to note here that the statute uses the words the holding or the part shall devolve to denote that if it is found that a widow has inherited an interest in the holding from her husband then it is the holding that devolves and not interest of the widow which ceased after her death
Thus the statute seeks to make a clear cut distinction between a widow who has inherited an interest from her husband which is dealt with by section 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by section 172 of the Abolition Act
The High Court appears to have overlooked the fact that merely because Smt
Menda having initially inherited possession or occupation of the holding from her husband acquired other types of interests merely by operation of law that could not destroy the origin or the source of her title which was inheritance from her husband
Nor can we regard the conferment of the status of a statutory tenant or a hereditary tenant or a bhumidhar under the various laws passed by the UP Legislature as amounting to an acquisition u of a self acquired interest by the widow
It was however argued by Mr Dikshit that under the Rent Act of 1886 before its amendment by Act 4 of 1921 the estate which was held by Ramadhin was not heritable at all and therefore Smt
Menda could not have inherited any interest in the tenancy on her husband s death
In this connection the learned counsel sought to draw a distinction between the provisions of the Agra Tenancy Act which had made the tenancies heritable and the provisions of the Oudh lenience Act which did not make the tenancies heritable
Although the argument appears to be extremely attractive on closer scrutiny it is not tenable
The words used in section 172 of the Abolition Act are inherited an interest
The statute has not defined the word interest and therefore it must be deemed to be of the widest possible amplitude
It will include not only an absolute interest but also a limited interest a precarious interest and an inchoate interest or the like
Section 48 of the Rent Act of 1886 before its amendment by Act 4 of 1921 stood as follows 48
1 The heir of a tenant who dies during the currency of the tenancy of a holding shall be entitled to retain to occupation of the holding at the rent payable by the deceased for the unexpired portion of the period for which the deceased tenant might have held without liability to enhancement or ejectment and to receive compensation under the provisions of this Act for improvements if any made on the holding by himself or his predecessor in interest but shall not be entitled to a renewal of the tenancy
x x x The expressions heir of a tenant and shall be entitled to retain occupation clearly postulate that the right to retain the occupation of 273 the lands in dispute is given only to the heirs of the deceased tenant A which clearly indicates that the person who retains occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act
In the instant case since Smt
Menda continued to retain occupation of the lands on the death of her husband she did so only as the heir of her husband and not otherwise for if that was not to then she could not have been entitled to retain occupation
The word entitled clearly signifies that the occupant must have some right however precarious or limited it may be
In these circumstances therefore there can be no doubt that Smt
Menda s occupation of the tenancy on the death of Ramadhin was by way of inheritance only
There was no other method by which she could have a right or claim to retain occupation of the holding
It is true that the interest of Smt
Menda was a very limited one and she could have been ejected by the landlord under certain circumstances
But section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceased tenant 1 the right to retain occupation of the holding on the rent payable and 2 to receive compensation for the improvements made
In these circumstances therefore it cannot be said that the occupation of the lands by Smt
Menda on her husband s death was purely in her individual or independent capacity or that the possession of the lands amounted to her self acquired property
Section 174 of the Abolition Act would naturally apply only to such cases where a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest namely an interest which she possessed in the holding as her self acquired property her stridden or the like
That is why section 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding
Thus the language used in sections 172 and 174 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the to sections are to apply
The Revenue Courts have also held as a fact that initially Smt
Menda had inherited the property from her husband but they have construed the conferment of the various kinds of status on Smt
Menda after she had already invented the property as amounting to her self acquired property
It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words inherited an interest in any holding as mentioned in section 172 of the Abolition Act
Section 172 A of the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow it would be deemed to be an accession to the holding of the last male holder thereof
We are however not at all concerned with 8
172 A of the Abolition Act because Smt
274 Menda had died two years before the amendment came into force and the question of succession to her estate would be governed by section 17 or section 174 of the Abolition Act
In the Division Bench decision in Mst
Jaini s case supra the Allahabad High Court had taken the same view
Malik CJ speaking for the Court observed thus Section 36 does not require that the tenancy as such should have been inherited by the widow
All that it provides is that the widow should have inherited an interest in the holding
The mere fact that she had to remain in possession for a further period of eight years before she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a widow
We fail to see how it could be said in view of the language of section 36 that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of Bhau
Section 36 was thus clearly applicable The Division Bench also relied in the aforesaid case on an earlier unreported decision of a Single Judge of that Court in Sital vs Suraj Din1 where exactly the same view was taken as the one we have taken in the instant case
The observations of the learned Single Judge have been quoted by the Division Bench in the case referred to above thus We can assume that she acquired on the passing of the new Act Act 4 of 1921 a fresh statutory period and a renewal of the tenancy but that does not take away the origin of her title
It is only when a female tenant acquires tenancy rights which do not have their origin in inheritance that the case could be taken out of the amble of section 36 to be governed by section 37
 It would be seen that in this case the husband of the appellant had died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen and if the tenancy rights had their origin in inheritance then sections 36  37 would rot apply
For these reasons therefore we are satisfied that the origin of the title of Smt
Menda lay in inheritance of the estate of her husband however limited or precarious it may have been
This being the position the succession to the estate of Smt
Menda would have to be governed by the provisions of section 172 of the Abolition Act which has applied the provisions of section 171 regarding the order of succession
In the order of succession given in section 171 of the Abolition Act brother s son is a preferential heir
It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter was also introduced as an heir before brother s son
But this was not the position prior to 1954 when the married daughter was completely excluded from inheritance
It is also not disputed that Smt
Phoola was 1 Second Appeal No421 of 1943 decided on 20 12 48
275 a married daughter on the death of Smt
Menda
In these circumstances therefore the holding held by Smt
Menda would devolve on Ramadhin s brother s son namely Jit and thereafter on his heir who is now continuing the present proceedings
Thus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt
Phoola
the Revenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by section 174 of the Abolition Act as the interest left by Smt
Menda was her self acquired property
The result is that the appeal is allowed the judgment of the Division Bench is set aside and that of the learned Single Judge is hereby restored
In the peculiar circumstances of this case and particularly having regard to the fact that the respondents have not appeared to contest the appeal before this Court we make no order as to costs in this Court
PBR Appeal allowed


Summary:
Under section 172 of the UP Zamindari Abolition and Land Reforms Act 1950 when a bhumidar who has after the date of vesting inherited an interest in any holding dies the holding or the part thereof shall devolve upon the nearest surviving heir such heir being ascertained in accordance with the provisions of section 171
Section 174 provides that when a bhumidar who is a woman dies her interest in the holding shall devolve in accordance with the order of succession given in the section
The appellant was the grandson son s son of one brother while respondent No I was the only daughter of another brother
On the death of the1respondent s father her mother continued in possession of the lands as heir of her husband under the provisions of the Oudh Land Act 1886
UP Act 4 of 1921 which replaced the 1886 Act conferred the status of a statutory tenant upon a person in possession of lands on the date of the amendment
Section 29 of the UP Tenancy Act 1939 which was a consolidating Act conferred the status of a hereditary tenant on any person who was a tenant 
of the land at the commencement of the Act and so the mother acquired the status of a hereditary tenant
The 1939 Act
was replaced by the UP Zamindari Abolition  Land Reforms Act
1950 under which she became a bhumidar
The mother died in 1952
On the death of the respondent s mother the appellant got his name mutated in the revenue records as the nearest heir of the mother
The respondent Sled a suit under section 21 of the Abolition Act 1950 claiming to be the sole legal heir to the property
She also field an application before the Consolidation officer under the UP Consolidation of Holdings Act for mutation of her name in a place of the appellant s which was accepted
On appeal to this Court it was contended that it was the appellant s father who would succeed to the property in preference to the respondent and it was contended for the respondent that when the respondent s father died the tenancy was heritable and so the tenancy acquired by her mother was in her own right as self acquired property
Allowing the appeal  HELD 1 Section 172A which was introduced in 1954 has no application to this case because the mother died two Years before the amendment came into force and the question of succession to her estate would be governed by section 172 or section 174 of the Abolition Act
274 A 2 The statute seeks to make a clear cut distinction between a widow who has inherited an interest from her husband dealt with in section 172 and widow who had acquired an independent interest in the holding covered by section 174
272 C Mst
Jaini  Ors
vs Ram Prasad AIR 1952 All 852 approved
3 a Section 172 uses the word holding or the Dart shall devolve  to denote that if it was found that a widow had inherited an interest in the holding from her husband then it was the holding that devolved and not interest of the widow which ceased after her death
The High Court had overlooked the fact that merely because the mother having initially inherited possession or 263 occupation of the holding from her husband acquired other types of interest A by operation of law that could not destroy the origin or the source of her title which was inheritance from her husband
Nor did the conferment of the status of a statutory tenant under the various laws passed by the legislature amount to an acquisition of a self acquired interest by the widow
272B D b The words inherited an interest occurring in section 172 are not defined in the statute and therefore they must be deemed to be of the widest possible amplitude
272F 4 Section 174 applies only to such cases where the widow did not inherit an interest from her husband but had an independent interest in the holding which she possessed as her self acquired property Under section 174 it is the interest in any holding which devolves and not the holding
The language used in Ss 172 and 174 of the Abolition Act unmistakably brings forth the distinction between the two contingencies in which the two sections are to apply
273E F 5 The High Court having found as a fact that the mother had inherited the property initially from her husband erred in law in not applying the provision of section 172 read with section 171 of the Abolition Act as a result of which her husband s brother s son was entitled to succeed to the estate left by her in preference to her daughter respondent
271H 6 The origin of the title of the mother lay in inheritance of the estate of her husband however limited or precarious it might have been
The succession to the estate of the mother would have to be governed by the provisions of section 172 of the Abolition Act
In the order of succession given in section 171 brother s son was a preferential heir
Before the amendment of the Abolition Act in 1954 married daughter was completely excluded from inheritance
274G H In the instant case the respondent having married on the death of her mother in 1952 the holding held by the mother would devolve on the appellants father and thereafter on the appellant as heir to his father
7 The expressions heir of a tenant  and shall be entitled to retain occupation  occurring in section 48 of the Rent Act 1886 before its amendment in 1921 clearly postulate that the right to retain the occupation of the lands in dispute was given to the heirs of the deceased tenant which clearly indicated that the person who retained occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act
273A In the instant case on the death of her husband occupation of the
tenancy by the mother was by no way other than as heir of her husband
It cannot be said that the occupation of the lands by the mother on her husband s death was purely in her individual or independent capacity or that her possession of the lands amounted to her self acquired property
273D E 8 Whether a decision is given in appeal from an original suit or in a writ petition the ratio is binding on the subsequent Division Bench and merely because the previous Division Bench judgment was given in a suit the subsequent Division Bench cannot refuse to follow the same on the ground that it was hearing the proceeding in a Writ petition
The rule of judicial precedent is a salutary one and is aimed at achieving finality of judgments
In case the Division Bench under appeal wanted to differ from the previous decision of the Division Bench of the same court it ought to have referred the matter to a large bench
271F G