DATTU RAMJI MALI Vs. WAMAN RAGHUNATH BUXY

JUDGEMENT

(1.) THIS is a second appeal from the concurring judgment of the Fourth Additional District Judge, Nagpur, in Civil Appeal No. 104-A of 1936, Decided on 31st March 1937. The suit relates to occupancy fields Nos. 15, 18 and 54/3 situate at Mauza Fetri, Tahsil and District Nagpur. They were originally held by one Sonba who died in 1922. On his death they devolved on his two widows Mt. Bhivra and Mt. Saloo. Mt. Bhivra died in 1923 and Mt. Saloo became the sole tenant of these fields. She died in March 1935 survived by Mahadeo, the son of her deceased daughter Gahani. After her death, Mahadeo, on 9th July 1935 surrendered the fields to the malguzar Raghunath Rao, the predecessor-in-title of the respondents by a registered instrument. When the malguzar went to take possession the defendant (appellant) Dattu asserted that he was the tenant and resisted the taking of possession. Dattu claimed the holdings as being the adopted son of Sonba, the original tenant, and that he had been recognized as tenant by the landlord. Both these pleas were negatived in the two Courts below. Dattu has raised one more contention which was that as Mahadeo was not in actual possession of the holdings he could not validly surrender the tenancy-right. This plea also failed in the Courts below.

(2.) BEFORE commencing the discussion of the point of law put forward on behalf of the appellant it is pertinent to note that the defendant Dattu was, like his father, managing the cultivation on behalf of Mt. Saloo. His jural relation to Saloo was that of an agent. His possession therefore became adverse on Saloo's death in March 1935. The question is whether Mahadeo, not being in actual possession of the holdings on 9th July 1935 was not competent to surrender the holdings. It is contended that for the surrender of tenancy rights to be effective, the tenant must have entered upon the holding and have held an estate in possession. Reference is made to Mt. Goura v. Shriram (1930) 17 AIR Nag 124 in which on the authority of the law enunciated in Para. 767, Halsbury's Laws of England, Vol. 18 (1st Edn.) it was held that acceptance of the tenancy by the heir on whom the same devolves by descent is essential for the relation of landlord and tenant. The view taken in Mt. Goura v. Shriram (1930) 17 AIR Nag 124 did not commend itself to a Full Bench of this Court in Punjaram Jagoba v. Ramu Chintoo Reported in (1940) 27 AIR Nag 49 for the reason that the doctrine of interesse termini had been abolished in England by Section 149, Law of Property Act, 1925, and it could not be made the basis for the decision in 1929 of the case reported in Mt. Goura v. Shriram (1930) 17 AIR Nag 124: see Mt. Razia Begum v. Muhammad Daud (1926) 13 AIR Pat 508.

(3.) SECTION 11, C.P. Tenancy Act, says that the interest of an occupancy tenant shall on his death pass by inheritance in accordance with her personal law. The interest of the tenant signifies the holding, that is to say that the parcel of land which is held under one lease. The interest will devolve on the heir even though the propositus is not in actual possession at his death, provided of course that the interest is not extinguished by adverse possession. If an interest in property can devolve on the heir even though unaccompanied by possession, there is no reason why it cannot be transferred or relinquished unaccompanied by possession. As between an excluded or dispossessed tenant and the trespasser the former has the tenant right which means an interest in the holding. The surrender, like transfer, operates on this right or interest irrespective of possession. The tenant right, viz. the right to cultivate reverts to the landlord who thereby becomes entitled to eject the trespasser. There is nothing in law to preclude the tenant from relinquishing his tenant right because he is out of possession. So long as he has the tenant right, the holding is his and the relinquishment of the tenant right must mean relinquishment of the holding. The land may be in possession of a trespasser but the "holding" remains with the rightful tenant. Reference is made to Section 26, Ben. Ten. Act, and to Section 35, Agra Tenancy Act. It is unnecessary to discuss those enactments as they are not helpful in the construction of the tenancy law in force in this Province. The appeal is dismissed with costs.