DULAR PANDEY Vs. NANDA BUDHAI

JUDGEMENT

(1.) This is a second appeal by the plaintiffs zamindars who brought a suit for ejectment of two persons, Sarju and Ramlal from an occupancy tenancy. The two Courts below have dismissed the suit of the plaintiffs. As an important question of law has arisen, the second appeal has been referred to a Full Bench of five Judges. The pedigree of the defendant is as follows:

(2.) Sita Ram was admittedly the last male occupancy tenant and he died in 1906 or 1907. He was succeeded by his widow Mt. Bhagni who died on 28 July 1931. The lower Appellate Court has held, that Sarju, defendant 1, was joint in cultivation with Sita Ram until his death. Ram Sarup the other defendant died during the course of the litigation and his son Shyam Lal was entered in his place. Mt. Bhagni on the death of her husband in 1906 or 1907 succeeded as a widow under the provisions of Section 22 of Act 2 of 1901 (the Agra Tenancy Act) which gave her the right to hold the tenancy until her death or remarriage. In 1926, the Legislature enacted the Agra Tenancy Act, Act 3 of 1926, and it was after the enactment of that Act that Mt. Bhagni died in 1931. The case of the appellants is that Mt. Bhagni on the passing of Act 3 of 1926 acquired rights of a full tenant under Section 25(2) and on her death the succession should devolve from her and not from her husband. The Bench which referred this case was mistaken in stating that this was the case for the plaintiffs throughout, as it was not mentioned in the pleadings or in the judgments of the lower Courts, nor was it a ground of appeal to the High Court. But as the point is a point of law on the facts held to be proved by the lower Appellate Court, the point may be entertained in second appeal, as laid down in M.E. Moola Sons Ltd. V/s. Burjorjee .

(3.) The issue may be stated as follows: Where an occupancy tenant died while the Agra Tenancy Act of 1901 was in force and was succeeded by his widow under Section 22 of that Act and the widow died after the Agra Tenancy Act of 1926 had come into force, does the tenancy devolve upon the nearest surviving heir of the last male tenant in accordance with the table of succession for occupancy tenancies or does the tenancy devolve upon the heirs of the widow under Section 25(2), Agra Tenancy Act, of 1926?