DULRU Vs. SHIOLAL

JUDGEMENT

(1.) THE joint Hindu family consisting of the plaintiff Dulru Teli, his step brother Shiolal, the defendant, their father Sukhdeo were the absolute occupancy tenants of 15 11 acres and occupancy tenants of 7 51. In 1915 Dulru separated from the other two who remained joint. The figures given in the jamabaudi entries vary slightly from year to year in respect of fractions of an acre, but roughly it may be said that Dulru was given 4 1/2 acres of absolute occupancy and 2 1/2 acres of occupancy land. On Sukhdeo's death, in 1924, Dulru claimed a half-share in all the 22'62 acres, on the untrue averment that he had never separated from the Joint family, but was given a part of the, land to hold separately only for convenience in management.

(2.) HIS appeal against the dismissal of his suit has been abandoned except for one point which is not mentioned in the petition of appeal. It is now urged that he is entitled to get a half of his father's occupancy holding of five acres' by inheritance. This contention is based on the difference between Sections 5 and 11 of the Tenancy Act, 1920. The former section is as follows: The interest of an absolute occupancy tenant in his holding shall, on his death, pass by in heritance or survivorship in accordance with his personal law.

(3.) THE omission to mention survivorship in the case of an occupancy holding seems to have no more meaning or effect than the omission to state that the interest is the interest in the holding, and the difference seems to be merely a curiosity in drafting. But even if the occupancy holding were the separate property of Sukhdeo, and it had to pass by inheritance only, as distinct from, survivorship, it would still pass wholly to the son, who was joint with him at, his death, to the exclusion of the son who had separated from him. The texts from the Mitakshara quoted in Chudaman Singh v. Sakharam [1900] 13 C.P.L.R. 137, put that beyond doubt.