JAINATH PATHAK Vs. KALKA UPADHYA

JUDGEMENT

(1.) The facts, which must be assumed for the purposes of this appeal, are very clearly set forth in the order of reference of the learned Judges. The short point for our decision is whether or rot a person who was recorded in the manner stated must be deemed to have all the estate in the fixed-rate tenancy vested in him or her alone, irrespective of the rights of all other persons who under the ordinary law would be entitled to the tenancy, but for the fact that such a person is so recorded. The defendants, who are the transferees of Musammat Rupao, rely on the provisions of Section 9 of the Agra Tenancy Act. That Section is as follows: "Every entry at the last revision of records before the commencement of this Act recording a person as a permanent tenure-bolder, or a fixed-rate tenant, or otherwise shall, in the absence of a judicial decision to the contrary in proceedings instituted before the commencement of this Act, be conclusive proof that such person is a permanent tenure-holder, or a fixed-rate tenant, or not, as the case may be."

(2.) The Section is certainly unfortunately worded and prima facie the language of it is in favour of the defendants contention, viz., that Musammat Rupao must be deemed, having regard to the words of the Act, as having had the entire estate in the fixed-rate tenancy and that their title as her transferees is complete. This view met with favour by the learned Judges who decided the case of Mulai Singh v. Rawant Singh A.W.N. (1906) 68 : 3 A.L.J. 842. They say, in our opinion, the language of the Section is clear and imperative."

(3.) Prior to the passing of this Act, there had been some what similar provisions in Act X of 1598, (Sections 3, 4 and 7) and Act XII of 1881 (Sections 4, 5 and 6). Under those Acts it was the duty of the Court to inquire as to the nature of a tenancy which had been held at a fixed-rate for certain periods, and certain presumptions in favour of the tenants were provided. Those Sections were all intended to meet the case of disputes between the zemindar and his tenant as to the nature of the tenancy. Before the passing of the Agra Tenancy Act of 1901, at the time of revision of records, inquiries were held as to the nature of these tenancies, but these again were inquiries between the zemindar and the tenant and did not touch upon the title to the tenancy itself. It is admitted that fixed-rate tenancies, unlike occupancy-tenancies, are heritable and transferable. Section 20 expressly so provides. Fixed-rate tenancies devolve on the death of the fixed-rate tenant according to the ordinary law. If the contention of the defendants be sound, namely, that by virtue of Section 9 the entry is conclusive not only between landlord and tenant but also between all persona claiming the tenancy, then it follows that if the managing member of a joint and undivided family was recorded as the fixed-rate tenant, the tenancy at his death would not devolve upon the surviving members of the joint family but would go to the heirs of the member of the family (who happened to be recorded) as if the family were separate. Again, if the widow or a daughter succeeded to a fixed-rate tenancy on the death of a fixed-rate tenant, who was a Hindu, the tenancy on the death of the widow or daughter would go to the heirs of the widow or daughter and not to the heirs of the last male holder.