KALU Vs. MT. BIRAJBAI

JUDGEMENT

(1.) THE respondent brought a suit for possession of a share in some fields and for other reliefs. Her claim for possession of the share in occupancy land and for correction of the entry in the revenue papers in respect of the land was decreed. The rest of her claim was dismissed. An appeal was preferred by the defendants, the present appellants, and the respondent Birajbai also appealed with regard to her claim that was dismissed. Both the appeals however were dismissed and the decree of the trial Court was confirmed with a modification, instead of the decree for possession of the occupancy field a decree for a declaration of title to these fields being substituted. The two defendants Kalu and Gokul have now preferred this second appeal.

(2.) ADMITTEDLY the occupancy land was recorded in the names of the appellants Kalu and Gokul and of their joint, brother Tapiram, the husband of the respondent Birajbai, who is now dead.. The question at issue between the parties is whether upon the death of Tapiram his share passed by survivorship to his joint brothers Kalu and Gokul or by inheritance to his widow, the respondent Birajbai. The decision of this question depends upon the interpretation of Section 11, Tenancy Act of 1920: This section reads: The interest of an occupancy tenant shall on his death pass by inheritance in accordance with his personal law.

(3.) IT can then only be held that the-words 'or by survivorship" have been deliberately omitted in Section 11. As Stanyon, A. J. C., has held in Ghanya v. Ukund Rao (1908) 4 NLR 9 an agricultural holding covered by the C. P. Tenancy Act is an estate created by contract and statute and its devolution is governed by the same statute. Ordinarily no doubt devolution would be governed by the ordinary law applicable to the owner or tenant of the holding, but where there are express provisions in the statute to the contrary those provisions must prevail. The earlier decisions on the question of devolution of an occupancy holding, Chudaman Singh v. Sakharam (1900) 13 CPLR 137, Atmaram v. Lala (1911) 7 NLR 36 and Fagwa v. Budhram AIR 1914 Nag 48 were all passed under the former Act of 1898. Section 46(1) of that Act was different to Section 11 of the present Act and reads as follows: When an occupancy tenant dies, his right in-his holding shall devolve as if it were land.