1972 (3) TMI 102 - HC - Indian Laws

Summary

Issues Involved:

1. Whether the properties in dispute were joint family properties.
2. Whether the rule of survivorship or statutory succession under the Tenancy Act applied to the tenancy holding.
3. Determination of the shares of the parties in the house and the tenancy holding.

Issue-wise Detailed Analysis:

1. Whether the properties in dispute were joint family properties:

The plaintiff claimed that the house and tenancy holding were acquired by Durga and inherited by his three sons as joint family properties. The trial court and the lower appellate court found that the properties were indeed joint family properties, inherited by the three sons of Durga as members of a Joint Hindu Family. The properties were coparcenary properties, and the plaintiff was entitled to a half share in both properties. The defendants contested this, asserting that the three sons were separate, and Chhangey's share was inherited by his widow Smt. Kaushalya, and subsequently by Chhiddu, making Chhiddu's share 2/3 and the plaintiff's share 1/3. The Full Bench agreed with the lower courts that the properties were joint family properties.

2. Whether the rule of survivorship or statutory succession under the Tenancy Act applied to the tenancy holding:

The core issue was whether the tenancy holding, being part of the joint family property, was subject to the rule of survivorship or the statutory succession under Section 22 of the N.W.P. Tenancy Act, 1901. The defense cited Mahabir Singh's case, which held that the rule of survivorship did not apply to tenancy holdings within a coparcenary body. The Full Bench analyzed the legal principles and concluded that the tenancy holding, upon Chhangey's death, did not pass by survivorship but devolved according to Section 22 of the Tenancy Act. The widow, Smt. Kaushalya, inherited Chhangey's share, and upon her death, the share passed to Chhiddu as the nearest heir, not to the plaintiff.

3. Determination of the shares of the parties in the house and the tenancy holding:

The Full Bench determined that upon the death of Chhangey, his interest in the tenancy holding devolved on his widow, Smt. Kaushalya, who held a one-third share. Upon her death, under the Agra Tenancy Act of 1926, Chhiddu inherited this one-third share, making his total share in the tenancy holding two-thirds, while the plaintiff had a one-third share. Regarding the house, governed by the rule of survivorship under Hindu Law, Chhangey's interest passed to the surviving members, Chhiddu and the plaintiff, giving each a half share in the house.

Conclusion:

The appeal was allowed in part. The decree was modified to reflect that the plaintiff's suit for partition was decreed for a half share in the house and a one-third share in the tenancy holding. The parties were ordered to bear their own costs throughout.