GOPINATH SINGH Vs. THAKURDIN SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal and arises from a suit for possession of an occupancy holding. Both the Courts below have dismissed the, plaintiffs suit. It is common ground, that the occupancy holding in question, originally belonged to one Lallu Singh, who died in 1901 and was succeeded by his widow Nidhao. The latter remained in possession of the occupancy holding till her death in 1919. The plaintiffs alleged that their grand-father, Bahadur, was the nearest collateral of her husband alive at the time of Mussammat Nidhao's death and that he inherited the tenure. The defendants are also collaterals of Lallu, being the sons of one Janki. They are certainly nearer than the plaintiffs; but the plaintiffs case is that their grandfather Bahadur inherited the tenure on the death of Mussammat Nidhao, when the defendants father Janki had died. Janki and Nidhao were brothers. The lower Courts have found, or at any rate assumed, that Bahadur was the nearest collateral alive on the death of Lallu; but they have dismissed the plaintiffs suit on the ground that they failed to establish that Bahadur was joint with Lallu in cultivation of the holding and that, Bahadur could not inherit having regard to the provisions of Section 22 of Act 2 of 1901. The learned Advocate for the appellants points out that Lallu died before the Act 2 of 1901 vyas passed, and consequently succession to him was not subject to provisions of that Act.

(2.) Act 12 of 1881 did not lay down any rule of succession such as is mentioned in Section 22 of Act 2 of 1901. It merely provides that "the right of an of occupancy tenant shall devolve, as if it were land." This implies that the same rule of succession is to apply to occupancy tenures as to any other land, i.e. in case of Hindus the Hindu Law; but there was an important proviso. That no collateral relative of the deceased who did not then share in the cultivation of his holding shall be entitled to inherit under this clause.

(3.) The result is that the Hindu Law as modified by the proviso to Section 9, was applicable to the occupancy holding left by Lallu. The widow remained in possession till 1919, when Act 2 of 1901 was in force. That Act lays down a line of succession providing, inter alia, that the occupancy tenant's widow shall be in possession of the holding "till her death or re-marriage." Like Section 9 of the older case, there is a proviso that No collateral relative shall be entitled to inherit in the cultivation of the holding at the time of tenant's death.