MAHABIR SINGH Vs. BHAGWANTI

JUDGEMENT

(1.) THIS appeal arises out of a suit in which (in effect) the plaintiffs seek to set aside a lease made by one Musammat Bhagwanti. The court of first instance decreed the plaintiffs claim. On appeal the learned District Judge modified the decree of the court of first instance. Musammat Bhagwanti, who made the lease, was the widow of one Ram Prasad. Bam Prasad, Mahabir and Lachman Singh, according to the finding of both the courts below, constituted a joint Hindu family, and the holdings in respect of which Musammat Bhagwanti made the lease have been found by both the courts below to be joint family property. The court of first instance considered that upon this finding the plaintiffs were entitled to the relief they sought. The learned District Judge says in the course of his judgement: "The learned Subordinate Judge held that Ram Prasad and the plaintiffs were members of a joint Hindu family and that the two holdings were joint family holdings. On this finding he has based the conclusion that Musammat Bhagwanti had no interest in the tenancy land. I agree with the finding but not with the conclusion." The learned District Judge thought that having regard to the provisions of Section 22 of the Tenancy Act, Ram Prasad had an interest which, failing male lineal descendants, devolved on his widow. In our opinion this view is not correct. Section 22 of the Tendency Act provides that when a tenant dies his interest shall devolve in the way specified in the section. Ram Prasad was not the "tenant" of the holdings in question. The co-parcenary body which made up the joint Hindu family of which he was a member constituted the "tenant." The very moment that Ram Prasad died the co-parcenary body continued to be the tenant, but the body was composed of the survivors of the family. Ram Prasad had no "interest" which devolved upon anyone. We allow the appeal, set aside the decree of the learned District Judge and restore the decree of the court of first instance with costs in all courts.