- (1.) THIS is a plaintiff's appeal. The suit was for possession of certain tenancy plots by the ejectment of the defendant. One Ram Charan was a tenant of holding situated in village khamaria Chak Rakhauna in the district of Bahraich belonging to the Kapurthala estate. He died about the year 1895 and was succeeded by his widow, Mt. Radha. Under the Oudh Rent Act (22 of 1886) a widow was entitled to remain in possession of her husband's tenancy for the unex-pired portion of seven years for which the tenancy was created. Mt. Eadha, however, continued to remain in possession of the property right up to 1912. In the year 1912, there was a fresh contract of tenancy and Mt. Eadha and Bhagwati Prasad, her brother's son, became tenants under a contract with the landlord. From time to time this contract has been renewed and the amount of rent fixed has been enhanced. Bhagwati Prasad died in 1927 and Mt. Eadha in 1940. The defendant, Mt. Ram Raji, as widow of Bhagwati Parasad, continued to remain in possession even after the death of Mt. Eadha in 1940. The plaintiff is Ram Charan's first wife's daughter's son and he is, therefore, no heir either to Mt. Eadha or to Bhagwati Prasad. It was claimed on behalf of the plaintiff that he was entitled to inherit this tenancy on the death of Mt. Eadha under section 36, U. P. Tenancy Act. The case came for decision before a learned single Judge of this court and, in view of the decisions of the Board of Revenue and certain observations in a judgment of a learned single Judge of this Court, the learned Judge referred the case for decision by a Bench.
(2.) SECTION 36, U. P. Tenancy Act, provides for succession to a female tenant holding an interest inherited as a widow, etc. , and the relevant portion of it is as follows : "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. . . . . dies 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. . . . " The question for decision, therefore, is whether the holding that is now claimed by this plaintiff was in the possession of Ram Charan and was inherited by Mt. Eadha on his death in 1895. The section provides for succession to a holding inherited by a widow. If it is the same holding that was inherited by Mt. Radha, the plaintiff's suit should obviously succeed. In case, however, this is a different holding and not the holding which Mt. Badha inherited from her husband, then section 36 will clearly not apply.
(3.) THE decisions of the Board of Revenue do not relate to a case where there was a fresh contract entered with a widow after the expiry of the original term provided under Section 48, Oudh Rent act. Those were all cases of a widow holding over after the expiry of the original period of tenancy. It is possible to take the view that in the case of a tenant holding over the nature of the tenancy is not changed and the widow, though she remained in possession after the expiry of the term mentioned in Section 48, continued to remain in possession of the property which she had inherited from her husband and as representing the estate of her husband. The case before the learned single Judge of this Court was also a case where a widow had been holding over after the expiry of the period mentioned in Section 48. These cases were, therefore, not relevant.;