BIKRAM Vs. THAKUR GANESH SINGH

JUDGEMENT

(1.) THE last of the three grounds of appeal seeks to reopen a question of fact decided against the appellants in what purports to be a different form. The suit against them was based on a surrender on the 12th of August 1922 by a Hindu widow of an occupancy holding inherited by her from her husband. The widow, Saphuri Chamarin, died in 1923. The defendants pleaded that in 1921 Mt. Safri became insane and quite devoid of common sense, and that she was "quite insane" at the time she executed the deed of surrender. It has been found on the evidence that her alleged insanity has not been proved, and it is now urged in appeal that it should be held that in executing the deed of surrender Saphuri did not act voluntarily or with knowledge of what she was doing, because she is proved to have been at least of weak intellect, if not actually insane.

(2.) THE plea is certainly not permissible, but an examination of it shows that it must fail anyhow (The judgment then discussed the evidence and found that Saphuri executed the deed with full knowledge of what she was doing.) But the main ground of appeal is the contention that the surrender to the. landlord by a Hindu woman of a tenancy inherited from a male, like a transfer by her of any other property so inherited, is invalid against that male's reversionary heirs unless there was legal necessity for making it. The contrary view was very clearly expressed in Vithu v. Mendri [1909] 5 N.L.R. 172 and Dajiba v. Raghunath[1913] 9 N.L.R. 126 which I am bound to follow unless they are distinguishable. It is sought to distinguish both cases on the ground that they deal with the old Tenancy Act of 1898 not the present Act of 1920V The difference in the law arising oat of the omission from the Tenancy Act 1920 of the provisions of Section 36 of the Act of 1898 seams to make it still more impossible under the present Act to set aside the surrender. The suggestion that the later of the two cases can be distinguished by the fact that the holding in question there was an absolute occupancy holding does not apply to Vithu v. Mendri 1909. 5 N.L.R. 172 and anyhow the reasons stated in the judgment in the former case in respect of an absolute occupancy holding apply with even greater force to an occupancy holding.

(3.) THERE appears, on the contrary, to be a simple but cogent reason for regarding the view that has prevailed in this Court for so many years as correct. An agricultural tenancy is exactly the same as any other tenancy, such as that of a house, except for enlargements or restrictions made by the Tenancy Act in the rights or liabilities of either party to the contract. The only difference with which we are now concerned between an agricultural tenancy and tenancy of a house is that made by Section 11 of the Tenancy Act 1920. That is the only provision I have ever heard cited as limiting a Hindu woman's power to surrender an occupancy holding inherited from a male.