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TMI Blog1976 (1) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus the combined effect of s. 3(18) 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 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 shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 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, except as otherwise provided in this Act as a subtenant 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 (1) When a female tenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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- (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, (iii)a 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding. 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 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 notification under s. 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 s. 10(1) of the U.P. Consolidation of Holdings Act and prayed that the name of Jit in the Khattas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 s. 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by s. 172 of the Abolition Act. The High Court appears to have overlooked the fact that merely because Smt. Menda h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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(1) 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 s. 36 to be governed by s. 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 ss. 36 37 would rot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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