GAJJAN SINGH Vs. S ZORAWAR SINGH

JUDGEMENT

(1.) The sole question involved in this second appeal is whether an alienation of occupancy rights by the mother of the last male holder in favour of the landlord, can be contested under the Customary Law by a reversioner on the ground of want of consideration and necessity. The facts of the case giving rise to this appeal by the Plaintiff are these: An occupancy tenancy under Section 5, Punjab Tenancy Act was held in equal shares by Gajjan Singh Plaintiff and Mst. Biro whose relationship will be borne from the following pedigree-table:

(2.) In the year 1960 the occupancy holding jointly belonged to Bir Singh and Prem Singh in equal shares. After their death it devolved upon their sons, Bir Singh was succeeded by Sarwan Singh and Gajjan Singh and Prem Singh by his ton Arjan Singh. The two branches were shown to be jointly holding the tenancy in equal shares in the Jamabandi of 1901-92. Sarwan Singh is said to have died without leaving a widow or any other direct descendant, and Mst. Biro succeeded Arjan Singh, on the latter's death. The occupancy rights were thus jointly held by Gajjan Singh and Mst. Biro in equal shares in the year 1994. It is not denied that S. Zorawar Singh Respondent was then the sole landlord of the tenancy. Mst. Biro sold her half share of the occupancy rights in 165 bighas 6 biswas of land to S. Zorawar Singh for Rs. 1,000/- by a registered deed dated 3-11-94. Gajjan Singh brought the present suit for a declaration that the alienation would not affect his reversionary rights on the ground that the property was ancestral and that the sale was in contravention of the provisions of Section 59(3), Tenancy Act and also without consideration and necessity. S. Zora Singh the aliened controverter these allegations and inter alia pleaded that since the sale was in favour of the sole landlord,, it extinguished the tenancy and consequently was not subject to challenge by the reversioner. The trial Court held the occupancy rights to be ancestral, the sale without necessity except to the extent of Rs. 319/, 8/- and the Plaintiff entitled to impugn the sale. The suit was consequently decreed. On landlord's appeal, the learned District Judge, Barnala agreed with the trial Court on the first two points. As regards the last he was of the opinion that the occupancy rights had got merged with the proprietary rights by the sale in favour of the landlord & that the sale which was not on behalf of a widow of the last male holder but by his mother, was not hit by the provisions of Section 59(3), Funiab Tenancy Act. For these reasons he held that the Plaintiff had no right to impugn the sale. The appeal was consequently accepted and the suit dismissed. This is Plaintiff's appeal against the appellate decree of the District Judge.

(3.) The case for the Respondent before me is that the statutory mode of succession enumerated in Section 59, Tenancy Act was not controlled by the personal law of an occupancy tenant or by the Customary Law. A mother under Section 59, as it stood before the amendment brought in by Act 9 of 1939, was not one of the recognised heirs and Mst. Biro, therefore, had no right to succeed to the tenancy on the death of her son Arjan Singh. The conclusion that Shri Kishori Lal, the learned Counsel for the Respondent, draws is that Mst. Biro must have been holding the land as a trespasser and prescribing for proprietary rights. Obviously the contention is without any substance. It is correct that Section 59, Punjab Tenancy Act is conclusive on the question of succession to an occupancy tenancy and rule of succession embodied therein cannot be added to or challenged on grounds of custom or personal law of the parties, but this does not mean that if a person, not entitled under the statute, is allowed to succeed to the occupancy rights by the persons interested, he or she would be occupying the land as a trespasser and would attain the position of a proprietor.