AJODHIYA PANDE Vs. MTRAJNA

JUDGEMENT

(1.) This is a Letters Patent appeal by a defendant under the following circumstances : The opposite party Mt. Rajna was one of the plaintiffs in a suit asking for possession of an occupancy holding on the grounds that she was the daughter of Madho. who died sometime previous to Act 2 of 1901, that Madho had been succeeded by two widows both of whom died during the pendency of Act 2 of 1901, the last widow dying in the year 1924 and that the defendants had interfered with her possession. The defendant-appellant based his claim on two grounds, firstly that he was related to Madho and entitled to succeed Madho as a reversioner and secondly, that he was one of the zamindars, and he claimed that Mt. Rajna was not entitled to succeed to this occupancy tenancy on the death of the last widow in the year 1924. The case raises difficult points of interpretation of Section 22 of Act 2 of 1901. The learned Single Judge has held against the appellant. Various rulings have been cited and it must be admitted that the rulings are very conflicting. The question is whether an occupancy tenant dies during the pendency of Act 12 of 1881, and his widow succeeds and that widow dies during the pendency of Act 2 of 1901, who is entitled to succeed to the occupancy holding. On the one hand, various rulings have held that Section 22 of Act 2 of 1901, applies and that the widow is to be taken as the occupancy tenant for the purpose of that section and that the order of succession prescribed by that section should be followed in relation to her. On the other hand, a number of rulings have laid down that in this case Section 22 is not intended to apply and that the succession must be governed by the ordinary rules of the personal law which applies to succession to land as laid down in Section 9 of Act 12 of 1881, subject to the condition imposed by that section that no collateral relation shall succeed unless he shared in the cultivation. We confess that there is considerable difficulty in interpreting Section 22 of Act 2 of 1901, and it is not at all clear whether it was or was not intended to apply to a case of this nature. To make the section apply to a case of this nature the aid of Section 13, U.P. General Clauses Act, will have to be invoked. Section 13 of that Act, lays down that unless there is anything repugnant in the subject or in the context words importing the masculine gender should be taken to include females. But we consider that there are things repugnant both in the subject and in the context.

(2.) As regards the subject the question is in regard to widows who in the case of Hindu widows are holding the estate of a Hindu widow in the tenancy in question. Such an estate is limited in the manner of Hindu law and the Hindu law provides a certain order of succession by the reversioners on the death of the widow. If Section 22 was intended to apply to those Hindu widows who were holding the interest of a Hindu widow when the Act came into force, then we would have expected to find a definite provision in Section 22 to that effect, but the section is entirely silent as to what is to happen in the case of such widows, and the section docs not purport at all, to deal with widows. Then again when we come to the question of context, we find that in this Section 22 there is a provision in Sub- section (b) for the interest to devolve "on his widow till her death or re-marriage." As a female cannot have a widow this provision is therefore repugnant to making Section 22 apply to female holders. From these considerations of the subject and the context we come to the conclusion that the table of succession in Section 22 was not intended to apply to widows who had succeeded under Section 9 of Act 12 of 1881, to the interest of a Hindu widow in the tenancy of an occupancy tenant. Act 2 of 1901 provided in Section 16 that: Every tenant having a right of occupancy under Section 11 or under the corresponding provisions of Act 12 of 1881 shall be called an occupancy tenant, and shall have all the rights and be subject to all the liabilities conferred and imposed on occupancy tenants by this Act.

(3.) One of the rights under the Act is in Section 20(2) The interest of an occupancy tenant subject to the provisions of this Act, is heritable.