JUDGMENT
1. This appeal comes out of a suit in which the plaintiffs sought to recover certain shares in what they alleged to be an occupancy holding. A pedigree will be found in paragraph 6 of the plaint. The common ancestor was a man called Girdhari. He had a number of sons and amongst them one Durjan Singh. Durjan Singh had a son named Bhim Sen, who left a widow Musammat Jiwalia but no children. She died some 9 months ago before the present suit was instituted, and it is to recover a 3/8ths share of what Bhim Sen held in a certain holding (viz., one-fourth) that the present suit has been brought. One of the defendants Roshan Singh alleged that he had been adopted by Musammat Jiwalia with authority from Bhim Sen. It has been found by both the Courts below that this is not true and if the property was ordinary immoveable property, the plaintiffs would undoubtedly have been entitled to succeed as the nearest reversioners. In the plaint the plaintiffs alleged that there was one large holding in two villages, that the descendants of Girdhari had remained in possession there of but that it was still a joint holding, the rent of which was jointly paid to the Zamindar. Roshan Singh admitted that the holding in the two villages was entered in a joint khata as alleged in paragraph 2 but denied the rest of the paragraph. The 14th paragraph of the written statement is as follows: "Although the whole khata is recorded as joint in papers yet all the persons are in separate possession of their shares in the cultivatory holding. The Zemindar has admitted the contesting defendant to be in possession of the cultivatory holding and to be adopted son." No issue was framed in either of the Courts below as to whether or not there was only one occupancy holding. But as we have shown, it was specifically alleged in the plaint that there was but one occupancy holding, that is to say, that all the lands in the two villages constituted one holding as between the landlord and the several persons who were entitled to the occupancy holding, and that the rent was a joint one. These allegations were certainly not specifically denied in the written statement of Roshan. It is admitted that the land is recorded as one holding and the papers on the record show that it is recorded as a holding at are joint rent. The old and the present Patwari were also examined and their evidence goes to show that the holding is a joint holding, although the different persons in possession cultivated at different times separate portions. We hold that there was only one holding. We assume for the purposes of our decision that Bhim Sen was in separate possession during his lifetime of certain specific portions of the holding and that after his death Musammat Jiwalia continued to be in separate possession of that portion of the holding which Bhim Sen had been in possession of during his lifetime. We also accept, as we are bound to do, the finding of the Court below that the plaintiffs are the nearest reversioners and that Roshan Singh was not the adopted son of Bhim Sen. The question which we have to decide is, whether the plaintiffs were entitled to a decree under these circumstances. The first Court decided against the plaintiff, because it thought that Musammat Jiwalia, having come into possession before the passing of the Tenancy Act, had thereby acquired an absolute title to the portion of the occupancy holding in possession of which Bhim Sen was before his death. This is not clearly correct. If Bhim Sen had been a sole tenant of an occupancy holding and died before the passing of the Act, his widow would have succeeded him under the provisions of that Act but on her death the succession would be regulated by the provisions of the present Tenancy Act. The lower Appellate Court decided against the plaintiffs, upon the ground that the plaintiffs being collateral heirs were not entitled because they did not share in the cultivation of the specific plots held by Bhim Sen and after his death by Musammat Jiwalia. When a Hindu dies the succession to his property is regulated by the ordinary rules of Hindu Law, save so far as those rules have been modified by the provisions of some Act. The only provision which could prevent the plaintiffs being entitled to succeed upon the death of Musammat Jiwalia is Section 22 of the present Tenancy Act. Section 22 allows a collateral heir to succeed failing lineal descendants in the male line and other heirs as mentioned in the section. But it contains a proviso that no collateral relative shall be entitled to inherit who did not share in the cultivation of the holding at the time of the tenant's death. If this section applies at all to the circumstances of the present case, then it is clear that while the plaintiffs did not share in the cultivation of the specific plots held by Bhim Sen they did share in the cultivation of the "holding" in which Bhim Sen had an interest. "Holding" in the proviso clearly means holding as that expression is defined in the Tenancy Act. If we were asked to hold and did hold that Section 22 only applies while the question arises as to the succession of an entire occupancy holding, then, the section not applying to the circumstances of the present case, the ordinary rules of Hindu Law would prevail and the plaintiffs would be entitled to succeed.
2. We allow the appeal, set aside the decrees of both the Courts below and give the plaintiffs a decree for possession of the share claimed. We send back the case to the Court of first instance directing it to make an enquiry as to mesne profits up to the time of the institution of the suit and also up to the date of delivery of possession as mentioned in Order XX, Rule 12. The Court below will then make a final decree as to the amount of the profits. The respondents must pay the costs in all Courts including in this Court fees on the higher scale.