Case: Ram Jivan Vs. Smt. Phoola (Dead) By Lrs. and Others

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 husbands 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 s. 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 ss. 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 s. 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. Menda had died two years before the amendment came into force and the question of succession to her estate would be governed by s. 17 or s. 174 of the Abolition Act.8. In the Division Bench decision in Mst. Jainis case (supra) the Allahabad High Court had taken the same view. Malik, C.J., 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 s. 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 v. Suraj Din (Second Appeal No.421 of 1943 decided o n 20-12-48.) where exactly the same view was taken as the one we have taken in the instant ca se. 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 s. 36 to be governed by s. 37."9. 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 an d if the tenancy rights had their origin in inheritance then ss. 36 &37 would rot apply.10. 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 o r 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 s. 172 of the Abolition Act which has applied the provisions of s. 171 regarding the order of succession. In the order of succession given in s. 171 of the Abolition Act brothers 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 brothers 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 a married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhins brothers 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 s. 174 of the Abolition Act as the interest left by Smt. Menda was her self-acquired property. Th

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The expressions "heir of a tenant" and "shall be entitled to retain occupation" clearly postulate that the right to retain the occupation of 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. Mendas 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 deceasedthe 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 husbands death was purely in her individual or independent capacity or that the possession of the lands amounted to herproperty. 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 selfacquired property, her stridden or the like. That is why s. 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 ss. 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 herproperty. 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 s. 172 of the Abolition Act.Sectionof 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.of the Abolition Act, becausehad died two years before the amendment came into force and the question of succession to her estate would be governed by s. 17 or s. 174 of the Abolitionwould 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 an d if the tenancy rights had their origin in inheritance then ss. 36 &37 would rotthese 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 o r 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 s. 172 of the Abolition Act which has applied the provisions of s. 171 regarding the order of succession. In the order of succession given in s. 171 of the Abolition Act brothers 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 brothers 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 a married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhins brothers 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 s. 174 of the Abolition Act as the interest left by Smt. Menda was herproperty. 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.