MT. GANGOO Vs. LAXMAN

JUDGEMENT

(1.) THE present suit was brought by Mt. Gangoo and Mt. Rangoo, the two minor daughters of Shiva Teli, deceased, for possession of three occupancy fields in mauza Pendhri (Nagpur). Their father Shiva had been the tenant of these fields, and on his death his widow, Mt. Soni succeeded to the tenancy. On the 3rd April 1924 Mt. Soni surrendered the field to the malguzar and on the same day the malguzar gave a perpetual lease of them to Laxman, the present-defendant-respondent. Very shortly afterwards, Laxman married Mt. Soni by pat. The Judge of the first Court held that the transactions of surrender and lease were fraudulent; that, in the circumstances, the civil Court had jurisdiction to interfere and that plaintiffs were entitled to succeed.

(2.) THE defendant Laxman appealed to the Court of the District Judge. The latter rightly pointel out that as regards the question of consideration for the surrender, this was primarily a matter as between the parties concerned and cannot be raised by a stranger. As he pointed out, the only question for consideration was, in reality whether the reversioners have the right to question Mt. Soni's surrender in the civil Courts. The District Judge pointed out that, under Section 35, C.P. Tenancy Act 1898, a Hindu widow's surrender can not be impeached except on account of fraud or any like ground : cf. Dajiba v. Raghunath [1913] 9 N.L.R. 126, and the position remains the same having regard to Section 89. C.P. Tenancy Act 1920. The only way, therefore, in which, in the District Judge's opinion, the present plaintiffs could have contested the surrender of the tenancy was by any application under Section 3. 12 and 13, Tenancy Act 1920. He further pointed out that the only species of fraud, which would enable the plaintiffs to sue in the civil Courts, would be fraud on the surrendering tenant. The learned District Judge accordingly dismissed the plaintiffs' suit and they have now filed the present appeal.

(3.) FOR my own part, as at present advised, I can see not the slightest reason for differing from the view I have taken in Deoram Gujar v. Biju Gujar A.I.R. 1926 Nag. 222 quoted above, but it, nevertheless, seems to me impossible to allow the plaintiffs-appellants' present contention to succeed. The matter seems to me to be, in fact, put at rest by the decision of Hallifax, A.J.C., in Bikram v. Thakur Ganesh Singh A.I.R. 1927 Nag. 129. As the learned Assistant Judicial Commissioner pointed out therein, Section 11, Tenancy Act, 1920, is, in effect, the only provision which makes any distinction between, say, the tenancy of an house and an agricultural tenancy of an occupancy field. Tenancy, 'like other contracts, is essentially personal, and, I know of nothing apart from the said provision, which limits the rights of a Hindu woman in respect of the contract of tenancy. I do not think it can be suggested for one moment that the ruling of Hallifax, A.J.C., referred to necessarily conflicts with the actual decision of Baker, J. C, and Kinkhede A.J.C., in Wasudeo v. Bhiwa A.I.R. 1925 Nag. 306, quoted above. As was pointed out by Hallifax, A.J.C., the case in question dealt with the passing, on the death of a Hindu women, of a tenancy inherited by her from a male and held by her up to her death, not with her rights and liabilities in respect of it during her life.