FAZL ALI - (1.) THIS is an appeal by special leave against the judgment of a Division Bench of the High Court of Allahabad dated 5/10/1966, and raises a question of law regarding the applicability of Sections 172 and 174 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (Act. No. 1 of 1951).
(2.) IT appears that the case had a chequered career and the dispute between the parties passed through several phases both before the Revenue Courts and in the High Court. In order to appreciate the point of law involved in this appeal, it may be necessary to give a resume of the facts which culminated in the judgment of the High Court under appeal. The dispute refers to lands comprised in Khata Nos. 1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli (U. P.). IT is not disputed that these Khatas originally belonged to one Harbans who died leaving behind three sons, namely, Gurdin, Ramcharan and Ramadhin. Ramacharan appears to have died issueless but Ramadhin died leaving a widow Smt. Menda and a daughter from her Smt. Phoola who was respondent No. 1. The other son Gurdin died leaving a son Jit who had contested the present proceedings against Smt. Phoola. During the pendency of the present proceedings Jit also died and the proceedings have been continued by his son Ram Jivan alias Lallu. The District of Rae Bareli fell in what was previously known as the Oudh Area of the United Provinces. The dispute between the parties appears to have arisen on the death of Ramadhin one of the sons of Harbans who died in 1916 leaving behind his widow Smt. Menda. At the time of the death of Ramadhin in 1916 the tenancy of the lands in dispute was governed by the provisions of the Oudh Rent Act, 1886 - hereinafter referred to as 'the Rent Act of 1886'. Under the provisions of the Rent Act of 1886 Smt. Menda was to continue in possession of the lands as an heir of Ramadhin but only during the fixed period of the tenancy on the rent payable to the landlord and was not entitled to renewal of the same. The terms and conditions of the tenancy at the time of the death of Ramadhin were governed by Section 48 of the Rent Act of 1886 which applied to the Oudh Area where the lands in dispute were situate. Under Sec. 48 of the Rent Act of 1886 it is obvious that on the death of a tenant his widow was to continue in occupation of the lands for the unexpired portion of the period for which the deceased tenant might have held the holding. Accordingly Smt. Menda continued to occupy the lands after the death of her husband in 1916. Meanwhile five years later the Rent Act of 1886 was amended by U. P. Act 4 of 1921 under which the status of a statutory tenant was conferred on a person who was in possession of the lands on the date when the amendment came into force. The amendment introduced a substantial change in Section 48 of the Rent Act of 1886 and added Clause (18) to Section 3 which runs thus: "(18) "Statutory tenant" means a tenant to whom Section 36 or Section 37 applies. Explanation.- A person who succeeds as an heir of a statutory tenant under Section 48 shall not be deemed to be a statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding under Section 48: "Provided that when a holding is held by two or more co-tenants no person who succeeds as an heir of any such co-tenant under Sec. 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord, or has remained in occupation of the holding for three years after the expiration of the period for which the heir of the last surviving co-tenant is entitled to retain occupation of the holding under Section 48." By virtue of the Explanation extracted above, a tenant to whom Sections 36 and 37 applied would be deemed to be a statutory tenant. Section 36 of the Rent Act of 1886 runs thus: "Every tenant, not being a tenant with a right of occupancy or a sub-tenant, shall be entitled to retain possession of the holding occupied by him at the commencement of the Oudh Rent (Amendment) Act, 1921, at the rent then payable by him, for a period of ten years from the date of the last change in his rent or the last alteration in the area of the holding, or where no such change or alteration has taken place, from the date on which the tenant was admitted to the occupation of the holding." As Smt. Menda was in possession of the holding at the date when the amendment came into force, she would be clearly governed by Section 36 and not Section 37 of the Rent Act of 1886 which deals with tenants who were admitted to the occupation of the holding after the coming into force of the amendment. Under Section 36 the widow was entitled to retain possession of the holding acquired by her for a period of ten years from the date on which she was admitted to the occupation of the holding. Thus the combined effect of Section 3 (18) and Sec. 36 of the Rent Act of 1886 would be to clothe Smt. Menda with the status and the rights of a statutory tenant. Section 48 made the status of a statutory tenant heritable and provided as follows: "(1) When a statutory tenant dies, his heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for a period of five years from the date of the tenant's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor in interest, but shall not be entitled to a renewal of the tenancy: Provided that a person who succeeds as an heir of a deceased tenant to whom Clause (e) of sub-s. (1) of Section 62A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for the unexpired portion of the statutory period of the deceased tenant. (2) Subject to any rights which he may have under Section 22 as a representative of the deceased, a collateral relative who did not at the date of the death of the deceased, share in the cultivation of the holding, shall not be deemed to be an heir of the deceased within the meaning of this section." In the instant case as Smt. Menda had succeeded as an heir to her husband before the amendment of S. 48 her case will be governed by the provisions of Section 48 and she would be entitled to retain possession of the tenancy but not to a renewal thereof. IT appears that soon after the death of Ramadhin the Court of Wards claimed that the tenancy had escheated to the State because Ramadhin had left no heirs and that Ramadhin was only a tenant at will. Smt. Menda appears to have resisted the claim of the Court of Wards which resulted in proceedings before the Revenue Courts which ultimately found that Smt. Menda had acquired the independent rights of a statutory tenant and was, therefore, not liable to be ejected at the instance of the Court of Wards. This order was passed by the Assistant Collector on 4/06/1926 and thereafter Smt. Menda continued in possession of the holding as a statutory tenant under the amended Rent Act of 1921. We might mention here that previous to the passing of the U. P. Tenancy Act, 1939 the areas of Oudh and Agra in the United Provinces were governed by two separate Acts so far as the tenancies were concerned. The areas in Agra were governed by the Agra Tenancy Act and those in Oudh by the Oudh Rent Act. The U. P. Tenancy Act 17 of 1939 appears to have consolidated the tenancies in the whole of the Province and the legislature passed one Act which would govern all the tenancies in the entire Province. The U. P. Tenancy Act 17 of 1939 was passed on 16/12/1939 and by Section 2 thereof the Agra Tenancy Act. 1926 and the Oudh Rent Act. 1886 were repealed. Section 29 of the Tenancy Act conferred the status of a hereditary tenant on any person who was a tenant of the land at the commencement of the Act. Thus Smt. Menda who continued to be in possession as a statutory tenant acquired the status of a hereditary tenant, under Section 29 (a) of the Tenancy Act which runs thus: "29. Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of Section 4 shall be entitled to all the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely: (a) every person who is, at the commencement of this Act, a tenant of land otherwise than as a permanent tenure-holder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or except as otherwise provided in this Act as a sub-tenant or a tenant of sir." The Tenancy Act having conferred heritable rights on the tenants to which Section 29 applied also laid down an order of succession in which the rights of the tenants would pass after the death of the tenant. Sections 36 and 37 of the Tenancy Act provided two different modes of devolution in the case of the death of a female tenant. Section 36 runs thus: "36 (1) When a female tenant, other than a tenant mentioned in Section 34, who either before or after the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as a step-mother, as a father's mother, or, as a daughter dies or abandons such holding, or surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, notwithstanding anything in Section 45, devolve in accordance with the order of succession laid down in Section 35 on the heir of the last male tenant, other than a tenant who inherited as a father's father under the provisions of that section. Section 37 of the Tenancy Act runs thus: "When a female tenant, other than a tenant mentioned in Sec. 34 or Section 36 dies, her interest in the holding shall devolve in accordance with the order of succession given below:- (a) male lineal descendants in the male line of descent: Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive; (b) husband; (c) unmarried daughter; (d) daughter's son; (e) brother; (f) brother's son." It will be seen that under Section 36 of the Tenancy Act the heirs of the husband get precedence over the daughter or the unmarried daughter, whereas in the case of a female tenant falling under Section 37 of the Tenancy Act the unmarried daughter gets precedence over the brother or brother's son. In other words, the policy of the law was that where a female tenant died having inherited an interest in the property from her husband then the male heirs of the husband should get preference over the female heirs. Where, however, the female tenant had died having an independent and self-acquired interest in the holding her property was to pass in a different manner. We are not concerned in this appeal with either Section 36 or Section 37 of the Tenancy Act, because Smt. Menda had died some time in September 1952 when the U. P. Tenancy Act. 1939 had been replaced by the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act 1 of 1951) hereinafter to be referred to as 'the Abolition Act'. In short, therefore, Smt. Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act of 1921, a hereditary tenant under the Tenancy Act and finally she acquired the status of a bhumidhar under the Abolition Act which came into force on 1/07/1952. The relevant portion of Section 18 of the Abolition Act may be extracted thus: "18. (1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands - (a) in possession of or deemed to be held by an intermediary as Sir, Khudkasht, or an intermediary's grove - (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, (c) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by} possessing JUDGEMENT_852_1_1976Html1.htm held by a grove-holder. on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof." As Smt. Menda had already become a hereditary tenant under the Tenancy Act she automatically acquired the status of a Bhumidhar under the Abolition Act and by virtue of the legal fiction created by Sec. 18 (1) of the Abolition Act, the lands, having been vested in the State Government, were deemed to have been permanently settled with the bhumidhar, namely, Smt. Menda in this case. It is the admitted case of the parties that Smt. Menda died some time in September 1952, i.e. only a few months after coming into force of the Abolition Act. The controversy between the parties now centres round the question as to who would succeed to the tenancy left by Smt. Menda. In other words, the matter to be decided is whether Section 172 or Section 174 of the Abolition Act would apply to the present case. It is not disputed that Smt. Menda died leaving a daughter Smt. Phoola and her husband's brother's son Jit. These were the two contending heirs for the property left by Smt. Menda.
(3.) SECTIONS 172 and 174 of the Abolition Act, insofar as they are relevant, may be extracted as follows: "172. (1) When a bhumidhar, sirdar or asami, who has after the date of vesting, inherited an interest in any holding - "(a) as a widow, widow of a male lineal descendant, in the male line of descent, mother or father's mother dies, marries, abandons or surrenders such holding or part thereof; or (b)xxxxx the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) or the last male bhumidhar, sirdar or asami. (b)xxxxx "174. When a bhumidhar, sirdar or asami (other than a bhumidhar, sirdar or asami mentioned in Section 171 or 172) who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given below: (a) son, son's son, son's son's son, predeceased son's widow and predeceased son's predeceased son's widow in equal shares per stripes: Provided firstly that the nearer shall exclude the remoter in the same branch: Provided secondly that a widow, who has remarried, shall be excluded; (b)xxxxx (d) daughter; (b)xxxxx (g) brother's son; (b)xxxxx It is, therefore, clear that the mode of succession to the property of Smt. Menda would depend on the determination of the question whether Smt. Menda had inherited an interest in any holding or had an independent interest in the holding. This matter appears to have been canvassed before the Revenue Courts which upheld the plea of Smt. Phoola. To begin with on the death of Smt. Menda Jit was successful in getting his name mutated in respect of the Khattas in dispute as being the nearest heir to Smt. Menda. The mutation was made by the Tahsildar Maharajgunj on July 30, 1954. This mutation appears to have been challenged by Smt. Phoola who claimed to be the daughter of Smt. Menda and therefore a preferential heir to the property as compared to Jit. In 1957 Smt. Phoola filed a suit under Section 209 of the Abolition Act for the ejectment of Jit from the disputed lands, on the ground that she was the sole legal heir of the property left by Smt. Menda. In the meanwhile in 1961 a notification under Section 4 of the Consolidation Act was issued bringing village Bishunpur in which the lands in dispute were situate under the consolidation operations. Accordingly Smt. Phoola filed an application during the consolidation operations before the Consolidation Officer, Bachhrawan, for correction of the records under Section 10 (1) of the U. P. Consolidation of Holdings Act and prayed that the name of Jit in the Khattas in dispute may be struck off and Smt. Phoola's name may be mutated therein. The Consolidation Officer accepted the plea of Smt. Phoola and he accordingly struck off the name of Jit from the Khattas and directed that Smt. Poola being the legal heir of Smt. Menda her name be mutated in respect of the Khattas, Thereafter Jit filed an appeal against the order of the Consolidation Officer before the Settlement Officer (Consolidations), Tahsil Maharajgunj, District Rae Bareli. The Settlement Officer by his order dated 26/12/1961 dismissed the appeal and upheld the order of the Consolidation Officer. Thereafter Jit filed a second appeal before the District Deputy Director of Consolidation, Rae Bareli, which was permitted under the U. P. Consolidation of Holdings Act as it was in force then. The District Deputy Director of Consolidation upheld the plea of Smt. Phoola and held that she was entitled to inherit the property of Smt. Menda being her legal heir in preference to Jit who was merely her husband's brother's son and relied upon Section 171 of the Abolition Act, and accordingly dismissed the appeal. Thereafter Jit filed a revision before the Joint Director of Consolidation who also dismissed the revision as being concluded by a finding of fact. Thereafter Jit filed a writ petition before the Allahabad High Court on 21/12/1962 and the writ petition was allowed by the single Judge on 6/08/1965. Smt. Phoola then filed a special appeal before a Division Bench of the Allahabad High Court which reversed the decision of the single Judge and dismissed the writ petition filed by Jit upholding the plea of Smt. Phoola. Thereafter Jit moved the High Court for granting leave to appeal to this Court and the same having been refused the present appeal by special leave has been filed in this Court.;