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

It appears that the case had a checker ed 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 (U.P.). It is not disputed that these Khattas origin ally 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 United(1)Provinces. 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,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 s.48 of the Rent Act of 1886 which applied to the oudh Area where the lands in dispute were situate. Under s.48 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 U.P. 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 s.48 of the Rent Act of 1886 and added clause(1)(18) to s.3 which runs thus:"(18) "Statutory tenant" means a tenant to whom section 36 or section 37n the instant case as Smt. Menda had succeeded as an heir to her husband before the amendment of s. 48 her case will be governed by the provisions of s. 48 and she would be entitled to retain possession of the tenancy but not to a renewal there of. 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. Smt. 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 in stance 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 U.P. 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 U.P. 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 U.P . Tenancy Act 17 of 1939 was passed on December 16, 1939 and by s. 2 thereof 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 s. 29(a) of the Tenancy Act

Reasoning: 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.