TRAILAKYA NATH PAL Vs. AMBIKA CHARAN

JUDGEMENT

(1.) This appeal raises an interesting point of law which turns upon the interpretation of Section 26, B.T. Act. The facts of the case are rather long and complicated, but the controversy in this appeal centres round the short point as to whether plaintiff 1 has established his raiyati right to a moiety share of the plot of land appertaining to Khatian No. 233 of Mouza Guha Lakhimipur. The Court of appeal below has decided in his favour and defendants 1-3 have preferred this second appeal. The raiyati right in respect of these plots of land was vested admittedly in one Haran Chandra Das, who held the same as an occupancy raiyat under two sets of landlords, viz. the Guhas and the Faridpur Loan Office. Haran died leaving three sons, Kunja, Kailas and Durga, and Kailas died later on, leaving as his only heir a son named Punchanan. In the year 1925, Kunjo and Punchanan sold their two-third share of the raiyati interest to one Kristo Kanta and the names of Kristo Kanta and Durga were recorded as tenants in respect of the holding in the sherista of Faridpur Loan Office (defendant 4) who were fractional landlords to the extent of 8 annas share. Durga died afterwards leaving a widow Kusum Kamini who inherited his 1/3 share. In July 1928 Kristo Kanta died and in October following Kusum Kamini sold her 1/3 interest in the raiyati to Biskha Baisnavi who is defendant 3 in the suit and who claimed to be the wife of Kristo Kanta.

(2.) In 1932 Bisakha purported to sell the entire 16 annas share of the raiyati to defendants 1 and 2, one third of which was her acquisition by purchase from Kusum Kamini, and the remaining 2/3rds she claimed as widow and heir of Kristo Kanta. It has been found by both the Courts below and is not disputed in appeal, that as a matter of fact Bisakha Baisnavi was not the wife of Kristo Kanta but was his mistress, and that Krista Kanta died without any heir. Upon this, the Faridpur Loan Office treated the 2/3rds share of Kristo Kanta as being vested in the landlords under the provision of Section 26, B.T. Act. With regard to the remaining 1/3rd share, it was abandoned by Kusum Kamini by transferring the same to Bisakha, and under these circumstances the Faridpur Loan Office treating the holding as being in their khas possession to the extent of a moiety share settled that share with plaintiff 1 in the year 1930. The whole question is as to whether the Court of appeal below was right in holding that plaintiff 1 got a good title to a moiety share of the holding by virtue of the settlement granted by the Faridpur Loan Office. Mr. Das who appears in support of the appeal has contended before me that the Court of appeal below was wrong in holding that 2/3 share of the holding vested in the landlords under Section 26, B.T. Act, on the death of Kristo Kanta. According to him, when one of the joint raiyats dies, the share of the deceased raiyat does not go to the landlord, as Section 26 contemplates the death of the sole raiyat or the entire body of raiyats, and this share passes by survivorship to the other joint tenants. In this view of the case, Kusum Kamini became the 16 annas raiyat, and as she purported to transfer only a third share of Bisakha, the remaining 2/3 share still remained in her. Consequently there was no abandonment which would entitle the landlords to re-enter and the settlement granted by defendant 4 could not give any valid title to plaintiff 1.

(3.) Now Section 26, B.T. Act, does not directly provide that the holding of an occupancy raiyat would revert to the landlord in case he dies without any heir. It simply says that when the raiyat leaves no heir behind him, and his other properties go by escheat to the Crown, the occupancy right is extinguished. What is extinguished is not the holding but the occupancy right, and so the holding remains stripped of the occupancy right. If the sole raiyat is dead, the holding remains without any tenant, and the landlord consequently is entitled to re-enter: vide Garbhu Mahton V/s. Mt. Bibi Khudaijatunnissa AIR 1925 Pat 597 at p. 780. Now what difference would it make if there are more than one tenant holding jointly and one of them dies? Mr. Das argues that Section 26, B.T. Act, does not apply to such a case at all. This contention does not appear to me to be tenable. The proviso of Section 26 must be taken to have the same scope and extent as the main provision itself upon which it is engrafted as an exception. As it cannot be maintained that in the case of one of several joint tenants dying leaving an heir behind him, his interest would not devolve on his heir, so in case of death without leaving any heir, the occupancy right must be deemed to be extinguished pro tanto so far as the share of the deceased tenant extended. The question now arises whether under such circumstances the landlord can take possession of the holding to the extent of the share of the deceased tenant. A negative answer is sought to be given to this question by suggesting that the share of the deceased tenant would pass by survivorship to the remaining tenant, and the landlord cannot re-enter so long as a single tenant remains in possession of the land. I do not think that the death of one tenant would have the effect of enlarging the rights of the surviving tenant and they would acquire an interest over the whole holding. In the first place, the principle of joint tenancy with its incident of rights by survivorship is not the rule of this country: vide the observations of the Judicial Committee in Jogeswar Narain Deo V/s. Bam Chandra Dutt (1896) 23 Cal 670; Mt. Baku Rani V/s. Rajendra Bakhsh Singh ; and on no other conceivable principle of law can the application of the rights of the co-sharers be justified.