Malik, C.J. - (1.) The property in question consisted of certain tenancy plots which were in the possession of one Kesho Ram, who died in 1894. Neither in the judgment of the learned single Judge nor in the judgment of the lower appellate Court the year of death was mentioned. The lower appellate Court had said that Kesho Ram had died long before 1921, and the learned single Judge has said that he had died before 1921. The year of Kesho Ram's death is, however, of some importance. On 25-3-1944, learned counsel for the plaintiff made the following statement : "Plaintiff's counsel further states that Kesho Ram, husband of Mt. Phulesra, was the tenant of the land in suit and on his death the tenancy devolved on his widow Mt. Phulesra, as life estate holder and Kesho Ram died some 50 years back. Phulesra did not enter into any new contract of tenancy." So working it backwards death of Kesho Ram may be assumed to have taken place about 1894. It is admitted that Kesho Ram was an ordinary tenant, which, under the Oudh Rent Act, Act XXII [22] of 1886, entitled him to remain in possession of the holding for a period of seven years. Srimati Phulesra, widow of Kesho Ram, remained in possession of the plots till her death in July 1939. She had two daughters, Radha and Parbati; and Radha had two sons, Jagdat and Sant Bux, and two daughters. On 15-8-1939, Jagdat, one of the two sons of Radha, filed a suit for possession for self and for the benefit of defendant 2, Sant Bux, against Ram Ratan, defendant 1, who was alleged to be a trespasser. Ram Ratan denied Jagdat's right to file the suit on the ground that the daughters of Radha were preferential heirs to the sons.
(2.) The trial Court decreed the suit, but the lower appellate Court allowed the appeal and dismissed the suit on the ground that in the presence of the daughters of Badha, Jagdat, her son, had no right to maintain the suit. In second appeal a learned single Judge restored the decree of the trial Court, but granted leave under Section 12, Oudh Courts Act to file a further appeal. Defendant Ram Ratan thus filed this appeal which has now come up before us for decision.
(3.) Kesho Ram, as we have already pointed out, died in 1894, when the Oudh Rent Act, XXII [22] of 1886, was in force. It was amended by an Amending Act IV [4] of 1921, which came into force on 11-2-1922. The U.P. Tenancy Act XVII [17] of 1939, did not come into force till 1-1-1940, and has, therefore no application to the case as Phulesra died in July 1939 and the question for the decision is who became entitled to the tenancy on her death. We have, therefore, to confine our attention to the Oudh Rent Act of 1886 for the decision of the question of the rights acquired by Phulesra and to the amended Act for the decision of the question as to who were the heirs of Phulesra at the time of her death in 1939.;