MT RASULAN Vs. BABU

JUDGEMENT

(1.) This is a Letters Patent appeal brought by the plaintiff whose suit was decreed in full by both the lower Courts, but on appeal by a defendant, the learned Judge of this Court dismissed the suit of the plaintiff in regard to half an occupancy holding. The pedigree in this case is as follows:

(2.) Imam was the owner of an occupancy holding and he died before Act 2 of 1901. He was succeeded by his daughter Mt. Rasulan the present plaintiff and his son Abdul Rahman. Although according to Mahomedan Law Abdul Rahman would have bean entitled to a two-thirds share, the entry of the occupancy holding was made for Mt. Rasulan and Abdul Rahman in equal shares. Abdul Rahman died about nine or ten years before the suit and he was succeeded by his son Abdul Aziz who died without issue in 1916. On the death of Abdul Aziz, the name of his mother Mt. Mirian, the widow of Abdul Rahman was entered and on her death in 1918, the name of one Babu, a defendant, who was the brother of Mt. Mirian was entered as in occupation of half her holding. Now, on 2 January, 1904, the plaintiff Mt. Rasulan had mortgaged her half share of the occupancy holding to her brother Abdul Rahman for Rs. 99. One part of the plaintiff's case was a suit for redemption of this half of the holding which was mortgaged and the plaintiff has received from all Courts a decree for redemption of this half for Rs. 99 and that matter is not now before us. The question before us is whether the plaintiff is entitled to succeed by survivorship to the remaining half of the occupancy holding. It was argued that this claim was a now case for the plaintiff, but we find it clearly stated in para. 9 of the plaint that after the death of Abdul Rahman the plaintiff was a tenant along with Abdul Aziz his son and after the death of Abdul Aziz, she became the tenant of the entire holding.

(3.) For the respondent it was contended that under Section 22, Act 2 of 1901, which was in force at the time of the death of Mt. Mirian in 1918, and at the time of the death of Abdul Aziz in 1916, the plaintiff is not a person entitled to succeed to the interest of either of those persons. This is undoubtedly so. The question which we have to consider is whether the plaintiff is entitled to succeed as a joint tenant or whether Section 22 prevents one of two joint tenants succeeding on the extinction of the line of the other joint tenant. It was argued in the first place that the specification of shares prevented the plaintiff from having any right of succession in the share of one-half entered for her brother Abdul Rahman. But there was no division of the holding or partition and the mere specification of shares does not amount to any division or partition. This matter of joint tenants has been once before this Court in Second Appeal No. 764 of 1905. In that case, an occupancy tenant died leaving a widow and two daughters who were recorded as joint tenants. The widow and the daughters applied to be entered for her share. It was held that the daughters succeeded by survivorship to the whole of the joint holding and the zamindars could not claim any right of reversion of a portion of a joint holding to themselves. Although the judgment of this Court is given somewhat briefly, still it refers with approval to the reasons given by the District Judge, where the proposition is discussed at length. With those reasons we are in agreement. We may also refer to the provisions of law now made in the new Act, Act 3 of 1926, Section 26 where it is laid down: And except in the case of widows or of a co-tenant who dies leaving no heir entitled to succeed under Section 24, no interest in any exproprietary, occupancy, statutory, or non-occupancy tenancy shall pass by survivorship.