RAM JIVAN v.

SMT. PHOOLA (DEAD) BY LRS. & ORS.

January 30, 1976

[R. S. SARKARIA, S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.J

U.P. Zamindari Abolition & Land Refornis Act, 1950-Sections 172 and 174-Scope of.

Practice-Whether decision of a Division Bench in an ap{Jt'al binding on another Division Bench hearing a writ petition.

Under s. 172 of the U.P. Zamindari Abolition and Land Reforms Ac1:, i950, when a bhu1nidar 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 \vith the proviions of s. 171). Section 174 provides that \Vhen 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 respond ent No. l \Vas the only daughter of another brother.

On the death of the respondent's father, her mother continued in possession of the lands as heir of her husband under the provisions of the Oudh Land Act, 1886.

U.P. 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 amend ment. Section 29 of the U.P. 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 U.P. Zan1indari Abolition & Land Reforms Act. 1950 under which she became :i bhun1idar.

The mother died in 1952.

On the death of the respondent's' mother the appellant got his name rnutated in the revenue records as the nearest heir of the mother. The respondent filed a suit under s. 21 of the Abolition Act 1950 claiming to be the sole legal heir to the property. She also filed an application before the Consolidation Officer under the U .P. Consolidation of Holdings Act for mutation of her name in place of the appellant's, which was accepted.

On appeal to this Court it was contended that it was the appellant'-) father who would succeed to the property in preference to the respondent and it \Vas contended for the respondent that \vhen the respondent's father died, the tenancy was heritable and so the tenancy acquired by her mother \Vas in her own right as selfacquired property.

A.llowing the appeal, HELD: (1) Section 172A \vhich was introduced in 1954 ha" no application to this case because the mother died two years bCfore the amendment came into force and the question of succession to her estate v, rould be govern ed by s. 172 or s. 174 of the Abolition Act.

[274-A]

r ..

(2) The statute seeks to make a clear cut distinction betv,:een a widow who -" has inherited an interest from her husband dealt with in s. 172 and fl wido\V .. who had acquired an independent interest in the holding covered by s. 174.

[272 CJ

Mst. Jaini & Ors. v. Ram Prasad, A.I.R. 1952 AIL 852, approved. (3)(a) Section 172 uses the word 'holding or the part 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, \Vhich ceased after her death. The High Court had overlooked the fact that merely because the mother having initially inherited possession or

occupation of the holding from her husband acqu!red other types of inter:est by operation of law that could not destroy the 0~1g1n or the source of her tttle which was inheritance from her husband. Nor did the conferme_nt 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 \vords "inherited an interest" occurring in s. 172 are. not deed in the statute and, therefore, they must be deemed to be of the widest possible amplitude. [272FJ

(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 s. 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 Higfi Court having found as a fact that the mother had inherited C the property initially from her husband erred in law in not applying the provisions of s. 172 read with s. 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 \vould have to be governed by the provisions of s. 172 of the Abolition Act. In the order of succession given in s. 171 D brother's son \Vas a preferential heir.

Before the amendment of the Abolition Act in 1954, married daughter was completely excluded from inheritance. [274G-Hl

Jn the instant case the resIJondent having married on the death of her mother in 1952 the holding held by the mother would devolve on the appellant's 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 s. 48 of the Rent Act 1886 before its amendment in E 1921 dearly 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 v.rho 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 p<>ssession of F the lands amounted to her self-acquired property. [273D-EJ

. (8) hether a ec!sioJ?- i~ given in appeal from an original suit or in a wnt pet1t1on the !at10 _r~ ?t?drng on te subsequent Division Bench and merely because .te. previous D1v1s1on Bench Judgment was given in a suit the subsequent D1~1s1on Bench cannot refuse to follo\v the same on the ground that it

\\'as eanng the proceedings , in writ petition. The rule of judicial precedent ,1s a sl~1ary one and is aimed at achieving finaJ!ty of judgments.

cas~ . the D1v1s1011: .B.ench under appeal wanted to differ from the previous

decision of the D1v1s1on Bench of the same court it ought to have referred the matter to a large bench.

[271F-GJ

CIVIL APPELLATE JURISDICTION : 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.

The Judgment of the Court was delivered by

FAzAL A:L~. J. This is an appeal by special leave against the judgment of a D1V1s10n Bench of the High Court of Allahabad dated Octoller 5, 1966, and raises a question of law regarding the applicability of ss. 172 and 174 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act No. 1 of 1951).

It appears that the case had a chequered 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 pomt of Jaw involved in this appeal, it may be necessary to give a resume of the facts which culminated in 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 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 United 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, 1886-hereinaftcr referred to 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 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 statns of a statutory tenant was conferred on a person who was in possession of the lands o~ the date when the amendment came into force.

The amendment mtroduced a substantial change in s.48 of the Rent Act of 1886 and added clause

(18) to s.3 which runs thus :

"(18) "Statutory tenant" means a tenant to whom sec· tion 36 or section 37 applies.

Explanation.-A person who succeeds as an heir of a statutory tenant under section 48 shall not be deemed to be

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 cotenant 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 ss. 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 D 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 s. 36 and not s. 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 s. 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.

Thu_s the combined effect of s. 3 (I 8) and s. 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 a statutory tenant dies, bis heir shall be entitled to retain occupation of the holding at the rent payable 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

A 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. Mendir 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 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.

Smt. Menda appears to have resisted the claimJ>f the Conrt 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 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 bys. 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 acquirea the status of a hereditary tenant, under s. 29(a) 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 tenureholder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or

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ii I

RAM JIY/\N v. SMT. PHOOLA (Faza[ Ali, J.) 267

e:>.cept 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 s. 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 (I) When a female tenant, other than a tenant mentioned in section 34, who either before or alter 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, notwithstanding 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 mac line of dcacent : 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 he seen that under s. 36 of the Tenancy Act the heirs of the husband get precedence over the daughter or the nnmarricd daughter, whereas in the case of a female tenant falling under s. 37 of the Tenancy Act the nnmarried daughter gets precedence over the brother 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-acqnired interest in the holding, her property was to pass in a different manner.

We are not concerned in this appeal with either s. 36 or s. 37 of the Tenancy Act, because Smt. Menda had died some time in September 1952

-LS22SCl176

A when the U.P. Tenancy Act, 1939 had been replaced by the U.P.

Zamindari Abolition and Land Reforms Act, 1950 (U.P. 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 tenani 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 s. 18 of the Abolition Act may be extracted thus :

18. (1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands-

(u)

(b)

(c)

(d)

in possession of or deemed to be held by an intermediary as sir, khudkasht, or an intermediary's groveheld as a grove by, or in the personal cultivation of a permanent lessee in Avadh, held by a fixed-rate tenant or a rent-free grantee as such, or held as such by- ( i) an occupancy tenant,

(ii) a hereditary tenant,

(iii) a tenant on patta I dawami or istamrari referred to in section j' 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. Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act and by virtue of the legal fiction created by s.18(1) 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, i.e. only a few months after coming into force of the Abolition Act.

The controversy between the parties now centres 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 s. 172 or s. 174 of the Abolition Act would apply to the present case.

Tt is not disputed that Smt. Mcnda 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.

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i •

RAM JIVAN v. 5MT. PHOOLA (Faza/ Ali, I.) 269

Sections 172 and 17 4 of the Abolition Act, insofar as they are 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 father's mother dies, marries, abandons or surrenders of such holding or part thereof; or (b) 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 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 D

(a) 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 stirpes : Provided firstly that the nearer shall exclude the remoter in the same branch : Provided secondly that a widow, who has E remarried, shall be excluded;

l )[ x x x

(d) daughter; x x x x x

(g) brother's son; x 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 gettiµg his name mutated in respect of the Khattas in dispnte as being the nearest heir to Smt. Menda.

The mutation was made by the Tahsildar 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 un- H der s. 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-L522SCI /76

property left by Smt. Menda.

In the meanwhile in 1961 a notificauon under s. 4 of the Consolidation Act was issued bringing village Bishunpur m which the lands in dispute were situate under the consohdation operations.

Accordingly Smt. Phoola filed an application during the consolidation operations before the Col\solidation Officer, Bachhrawan, for correction of the records under s. 10(1) of the U.P. 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. Phoula and he accordingly struck off the name of Jit trom 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 before the District Deputy Director of Consolidation, Rae Bareli, which was permitted under the U.P. Consolidation of Holdings Act as it was in force then.

The District Deputy Dirjlctor 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 npon s. 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.

Smt. Phoola then filed a special appeal before a Division Bench of the Allahabad High Court which reversed the decision of the Single Judge and dismissed the writ petition filed by Jit upholding the plea of Smt. Phoola. Thereafter 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 SQ1\. 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 s. 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 s. 171 of the Abolition Act which applied to s. 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 ef herhusband did

RAM J!VAN v. SMT. PHOOLA (Fazal Ali, J.) 271

not arise and the tenancy held by Smt. Menda must therefore be regardeJ as having been acquired by her in her own right as her selfacquired 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 Beneh 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. v.

Ram Prasad(') 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 v. Ram Prasad (supra) 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 counterpart of section 172 read with section 171 of the U.P. Zamindari Abolition Act.

Jaini v. 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 su!t the subsequent Division Bench cannot refuse to follow the same 15ecausc 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 s. 172 read with s. 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 bv

Smt. Menda in preference to Smt. Phoola the daughter.

We now H proceed to give reasons for this conclusion. ~

{i) A.l.R. 1952 AU. 852. ~

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 s. 171 of the Abolition Act. It is manifest therefore that in order to determine the applicability of s. 172 of the Abolition Act we must go to the origin of the title of the bhumidhar or the main source from which tl1e bhumidhar has derived interest in the holding.

It may be pertinent to note here that the statute uses the ·.vords "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 s. 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by s. 174 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 U.P. Legislature as amounting to an acquisiton of a self-acquired interest by the widow. It was, however, argued by Mr. Dikshit that under the Rent Act of 18 86 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 Tenancy Act which did not make the tenancies heritable.

Although the argument appears to be extremely attractive, on closer scrutiny if is not tenable.

The words used in s. 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 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 x ..

The expressions "heir of a tenant" and "shall be entitled to retain occupation" clearly postulate that the right to retain the occupation of

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the lands in dispute is given only to the heirs of the deceased tenant 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

so 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 improvemonts 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, nainely, an interest which she possessed in the holding as her self-acquired property, her stridhan 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 17 4 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the two 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 inherited 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 s. 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. 172 or s. 17 4 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, 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 liefore she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a wiqow.

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 Bhan.

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 Sita! v. Suraj Din(I) where exactly the same view was taken as the one we have taken in tho 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 tacir origin in inheritance that the case could be takeu out of the amb,. of s. 36 to be governed by s. 37."

It would he seen that in this case the husband of the appellant haJ 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 tenanc;

rights had their origin in inheritance then ss. 36 & 37 would po1 apply.

For these reasons, therefore, we are satisfied that the origin o' the title of Smt. Menda Jay 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 s. 172 of the Abolition Act which ha:; applied the provisions of s. 171 regarding the order of succession.

In the order of succession given in s. 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 wa;

also introduced as an heir before brother's son. But thi' was not th<~ position prior to 1954 when the married daughter was completely e>- cluded from inheritance. It is also not disputed that Smt. Phoola was

(!) Second Appeal No. 421of1943 decided on 20-12-48.

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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 Rvenue 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. 17 4 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. c contest the appeal before this Court, we make no order as to costs in this Court.

P.B.R.

Appeal allowed.