M. Hameedullah Beg, J. - (1.) This is a petition under Article 226 of the Constitution directed against the order dated 27 -9 -1962 of the Joint Director of Consolidation, opposite party No. 1 and the order dated 22 -5 -1961 passed by the Dy. Director of Consolidation and the order dated 31 -1 -1961 passed by the Settlement Officer, opposite party No. 3. The three orders assailed proceed on the view that a co -tenancy right cannot be created in an ex -proprietary tenancy by virtue of the proviso to Sec. 33 of the UP Tenancy Act. This Sec. and the proviso may be reproduced here. 33 (1). The interest of a tenant holding on special terms in Oudh, of an ex -proprietary tenant, of an occupancy tenant, of a hereditary tenant and of a non -occupancy tenant is heritable, but is not transferable otherwise than in accordance with the provisions of this Act. (2) Nothing in the foregoing provisions of this Sec. shall render illegal, (a) a sub -lease of a holding as hereinafter provided; (b) a sale of the interest of a tenant under the provisions of Sec. 251; (c) a release or transfer of an interest in favour of a co -tenant: Provided that no person shall be deemed to be a co -tenant, notwithstanding that he may have shared in the cultivation of the holding, unless he was a co -tenant from the commencement of the tenancy, or has become such by succession or has been specifically recognized as such in writing by the landholder.
(2.) The Petitioner is the grandson of a lady called Humera Bibi through his mother called Rafiqi Bibi. The Consolidation authorities have pointed out how on the death of Mohd. Umar, the father of Mohammad Usman, Humera Bibi, who was the daughter of the sister of Mohd. Usman, was entered in the revenue records as an ex proprietary tenant, together with Mohd. Usman, of certain plots of land. The Consolidation Officer, acting upon the entries in the revenue records, had recognised the right of Irshad Ahmad Petitioner as a co -tenant in the ex -proprietary tenancy rights to which Mohd. Usman succeeded after the death of his father in 1955. Apparently, ex -proprietary tenancy had arisen in the lifetime of Mohd. Umar and, according to the line of succession in Sec. 3 of the UP Tenancy Act, 1939, the ex -proprietary tenancy rights vested in Mohd. Usman alone on the death of his father. Nevertheless, in a suit filed by the zamindar, Mohd. Usman had recognized, in his written statement, on 5 -12 -1960, Humera Bibi, his sister's daughter, as a co -exproprietary tenant. The only question was whether such a transaction by itself would create ex -proprietary co -tenancy rights in Humera Bibi after the death in her descendants (?) (ascendants). The Petitioner claimed independent rights by virtue of possession, but no such independent rights were proved. So the only question which remained was whether he could benefit from the "co -exproprietary tenancy" sought to be cheated by Mohd. Usman as a result of an agreement between Mohd. Usman and the zamindar on the filing of a suit which has been held to be collusive by the Consolidation authorities.
(3.) Reliance has been placed on behalf of the Petitioner on a decision of the Board of Revenue in Tukman Singh v/s. Ram Singh etc. 1955 AWR (Rev.) 108 where it was held that a "stranger may be admitted as a co -tenant even to an exproprietary holding if he has been admitted by the tenant thereof and specifically recognised as such in writing by the landlord". The view taken by the Board of Revenue was sought to be adopted in argument before me, but I do not think that the view is correct. It ignores the various provisions of the UP Tenancy Act relating to the creation, transfer, relinquishment, surrender and enforcement of ex -proprietary tenancy rights. Sec. 26 of the UP Tenancy Act makes it clear that an ex -proprietary tenancy arises by operation of law and is not created by contract. Sec. 27 makes an agreement either for the relinquishment or having the effect of relinquishment of ex proprietary tenancy rights unenforceable in any court where the agreement was made before or after the accrual of ex -proprietary tenancy rights. Sec. 82 contains a proviso imposing a limitation against the right to surrender ex proprietary tenancy rights. The question arises whether, in view of the nature of exproprietary tenancy rights and the above mentioned provisions regulating the extinction of those rights, the proviso to Sec. 33 could be so interpreted as to operate as a means of creation of co -tenancy rights in ex -proprietary tenancies. On the face of it, the proviso seems to be related to Sec. 33(2)(c) which speaks of a release or transfer of a interest in favour of a cotenant. In other words there must be pre -existing co -tenancy right before it applies. In judging whether such a right had come into existence or not the proviso operates and lays down the conditions under which a person shall be deemed to be a cotenant. One of these conditions is that the alleged cotenant must have been specifically recognised as such in writing by the landholder. As ex -proprietary tenancy rights do not arise by agreement or by recognition by the land -holder the question of applying the proviso does not arise. Hence, the proviso has no application to the present case.;