BISHESHAR AHIR Vs. DUKHARAN AHIR

JUDGEMENT

(1.) THIS appeal relates to a suit in which the plaintiff claimed a half share in an occupancy holding. The facts are very simple and are undisputed. Katwaru was the tenant of the occupancy holding. He died many years ago before the Agra Tenancy Act came into force, leaving two daughters, Musammat Dilasi and Musammat Sumitra. Musammat Dilasi died about 14 years before the suit was instituted, leaving her surviving, her sister Musammat Sumitra, who died on the 11th of September, 1913. The plaintiffs are the son and grandson of Musammat Dilasi and the defendant is the son of Musammat Sumitra. It is admitted that on the death of Katwaru his two daughters became entitled to possession of the property as Hindu females. According to the provisions of the Rent Act of 1881 an occupancy holding, subject to certain qualifications, descended "as land." It is admitted that if the Agra Tenancy Act had never been passed, the plaintiff No. 1 would he entitled to succeed in the present suit. Section 22 of the Agra Tenancy Act provides that when an occupancy tenant dies his interest shall devolve as therein provided. If we regard Musammat Sumitra as the occupancy tenant within the meaning of Section 22 of the Tenancy Act the plaintiff s title fails. It stems to us that we cannot regard Musammat Sumitra as the lull occupancy tenant. When she and her sister succeeded they succeeded merely as Hindu ladies. There is nothing in the Agra Tenancy Act which enlarges the estate of a Hindu female in an occupancy holding in possession at the time the Act was passed beyond the ordinary estate of a Hindu female. If the Act has not provided for the devolution of the interest in an occupancy holding, where it was, at the passing of the Act, in the possession of a Hindu female as such, we think that we ought to go to the ordinary Hindu law to ascertain the rights of the parties. There has no doubt been some conflict of views upon the point. The important matter is to have a definite ruling one way or the other. The cases, as time goes on, in which the question will arise, must become fewer and fewer. It is said that the Board of Revenue have taken a decided view that a female Hindu is the full occupancy tenant within the meaning of Section 22 and the case of Bubu Bansidhar v. Musammat Rajwantia (1907) Select Decisions of Board of Revenue No. 3 is relied upon. In that case no doubt the view contended for seems to have been taken and the members of the Board seem to have considered that upon the death of a Hindu widow all occupancy rights ceased to exist and were extinguished. In another case before the Board of Revenue, Sited Prasad v. Bishan Dat (1915) 30 Indian Cases 804, quite a contrary view appears to have been taken by the Board. THIS case was decided on the 22nd day of August, 1912. In that case one Rahman had been the occupancy tenant. On his death prior to the passing of the present Agra Tenancy Ant his widow Musammat Naraia became entitled to possession. She died after the new Act came into force leaving two daughters and a daughter s son. The Senior Member of the Board of Revenue stated in the clearest Way possible that upon the death of the widow, who had only been in possession for her life, her daughters became entitled and were then the occupancy tenants. On behalf of the appellants the following cases wore relied upon: Deoki Rai v. Musammat Parbati (1914) 30 Indian Cases 804, Nathu v. Gokalia (1915) I.L.R. 37 All. 658, Dulari v. Mul Chand (1910) I.L.R. 32 All. 314. The two first mentioned cases are no doubt clearly distinguishable, and the question which we have to decide in the present case was not decided. In Dulari v. Mul Chand, there was the distinction which has been pointed out by the learned Judge of the Court that the plaintiff s right had already accrued to her before the present Act came into operation and her rights were only postponed by reason of the fact that she was rich while her sifter poor. We think that the decisions of the courts below were correct and ought to be restored. We accordingly allow the appeal, set aside the decree of this Court and restore the decree of the lower appellate court and we direct that the parties do pay their own costs in this Court.