PANDU Vs. KAUTIKA BAI

JUDGEMENT

(1.) 1. The two persons who instituted this suit claimed to be the heirs of a deceased Hindu, Mahadeo Kunbi, and to be entitled to possession of his estate on the termination by remarriage of the limited ownership of his widow. As not infrequently happens, one of the two plaintiffs who claimed to inherit equally is of an earlier generation and in a nearer degree of relationship to the last male holder than the other, and the latter has now dropped out of the case. Pandu, the former, who is appellant here, is admitted to be Mahadeo's only reversionary heir under the Hindu Law, their common ancestor being one Bapuji, and the dispute in this case is in respect only of his right to inherit an-occupancy holding of 48'78 acres which was a part of Mahadeo's property. As the second marriage of Mahadeo's widow took place in 1919, the case is governed by Section 46 of the Tenancy Act, 1898, and it is admitted that Pandu satisfies all the conditions of that section necessary to make him occupancy tenant of Mahadeo's holding except one : it is contended by the opposite party that their common ancestor Bapuji never occupied" the holding according to the meaning of the concluding words of Section 46 (1).

(2.) IT is admitted that an area of 72 acres, which included the whole of Mahadeo's occupancy holding, was held by Bapuji as sir. Sir was for the first time "definitely defined," as the learned District Judge puts it, in Section 3(11) of Act 9 of 1883, and Bapuji died in 1870. But in the jamabandi of 1860 he is recorded as tenant of the whole 72 acres and also as hissedar malguzar, and from the other entries in that document it is clear that he had broken up all the land from waste, some of it 13 years and the rest 29 years before his death in 1870. The whole of it was therefore his sir in 1870 under both Clause (b) and Clause (c) of the Tenancy Act of 1883, though it was not then so recorded. Anyhow Bapuji's occupation of it was of the same character as if it had been sir and had been so recorded.

(3.) FOR the judgment in Son Singh v. Thakur Ram A.I.R. 1922 Nag. 21, of which the title has been misquoted, I am responsible. In that case the question was whether one Anant could be regarded as having "occupied" an existing holding of about thirteen acres, of which up to his death he had been tenant of about six. The passage towards the end of the judgment to which the learned judge refers is this: If the whole of the present holding were a part of the original holding of Anant, then it might be argued with some show of reason that the did 'occupy' it within the meaning of Section 46 of the Tenancy Act, in spite of the opinion already expressed that each part of a holding after partition is an entirely new holding. But it cannot possibly be said that he occupied the present holding of 13-25 acres just because about half of it was included in the holding which he. did occupy.