JUDGMENT Bennet, J.
1. This is a second appeal by defendant 1, Har Narain Singh, and defendant 2, Girja Saran Singh, against concurring decrees of the two lower Courts granting possession to the plaintiffs of property in list B of the plaint. The family pedigree is as follows:
DEBI SARAN SINGH | |--------------------------------------------------| | | Mt. Lachminau=Mahabir Singh=Mt. Lakhpati died 1900 Ram Dahal Singh died 1900 | died 1882 | (widow No. 2) =Mt. Jamna Kunwar widow No.1) | | died 1898 (widow) | ---------| | | | Mt. Deo Kali deceased | Mt. Ram Anandi daughter daughter married to | died on 13th February 1933. Hirday Narain Singh | | | Har Narain Singh, | defendant 1 |-------------------------------------------------------------| | | | Mt. Unccta daughter Bhola Singh = Mt. Jogta Mt. Abalkha daughter died 1901 (predeceased Mahabir Singh) married to Lal Makund Singh widow | | | | Mt. Patto deceased daughter | married to Girja Saran Singh | defendant 2. | |---------------------------------------------------------------------| | | | | Ram Chariter Singh Anand Ram Singh Nand Ram Singh Kubir Singh | plaintiff 2. plaintiff 1. | Bachclia. |---------------| | |----------------------------| | | Alakh Narain Singh Badri Narain Sing
2. Plaintiff 1 Nand Ram Singh and plaintiff 2 Anand Ram Singh, are the sons of Mt. Ablakha who was a daughter of the last male holder, Mahabir Singh. Mahabir Singh died on 26th January 1882 and it is not now disputed that when he died he was the sole survivor of joint family which had consisted Originally of his father, Debi Saran Singh; his berther, Ram Dahal Singh and himself and one son Bhola Singh who had predeceased him. The family property set out in the plaint consisted of list B, The major portion of list B consists of fixed rate tenancy, occupancy tenancy and cultivatory holdings. There is also some property consisting of groves, wells and houses in ruins. When Mahabir Singh died in 1882 the succession to the tenancies was governed by the North-Western Provinces Rent Act (12 of 1881), Section 9 which provides as follows:
The right of tenants at fixed rates may devolve by succession or be transferred.
No other right of occupancy shall be transferable in execution of a decree or otherwise than by voluntary transfer between persons in favour of whom as cosharers such right originally arose, or who have become by succession cosharers therein.
When any person entitled to such last mentioned right dies, the right shall devolve as if it were land : Provided that no collateral relative of the deceased who did not then share in the cultivation of his holding shall be entitled to inherit under this clause.
3. At that period therefore the devolution was similar to land, that is to proprietary rights in land, and in case of Mahabir : Singh who was a Hindu, the devolution was by Hindu law. Accordingly on the death of Mahabir Singh who was the last male survivor of this Hindu joint family the only persons entitled to hold his estate were his two widows, Mt. Lachminan and Mt. Lakhpati. These two ladies executed a document on 19th December 1882 by which they divided the estate into four portions, one portion for each of them, one portion for Mt. Jogta, the widow of the predeceased son, Bhola Singh, and one portion for Mt. Jamna Kunwar, the widow of the predeceased brother Ram Dahal Singh. Now neither of these two ladies, Mt. Jogta nor Mt. Jamna, had any right to hold any portion of the property under Hindu law. Their rights were limited to maintenance.
4. In 1886 Suit No. 133 was brought by Mt. Uneetia and Mt. Ablakha, two daughters of Mahabir Singh, and they claimed against Mt. Lachminan, Mt. Lakhpati, Mt. Jamna and Mt. Patto, the daughter of Mt. Jogta, that they should. be granted a declaration that the two plaintiffs, Mt. Uneeta and Mt. Ablakha, were entitled along with Mt. Kara Anandi, another daughter, to succeed to all the property of Mahabir Singh on the death of two widows of Mahabir Singh. It is clour that Mt. Jogta was not made a party to the suit as she had died at the time and her daughter Mt. Patto was her representative. In this suit there was a compromise on 1st March 1887 by which the plaintiffs in the suit recognized the agreement of 19th December 1882 and held that it should be maintained. At the same time learned Counsel points out that there was at this date a compromise in another Suit No. 13 of 1887 brought by Mt. Lakhpati on a mortgage against Sheobali and his three sons including Lal Makund Singh, the father of the plaintiffs. In this compromise Mt. Lakhpati gave up her claim to the mortgage money. One of the grounds of appeal is that there is some estoppel against the plaintiffs on account of this compromise in Suit No. 13 of 1887 because it is said that their father's father benefited by Mt. Lakhpati giving up her claim to the mortgage money and apparently the argument proceeds that the plaintiffs have now inherited this benefit. But if the compromise had not been made and Mt. Lakhpati had obtained a decree, she would have obtained this money and this money would have descended to the plaintiffs by Hindu law from her as the mortgage was one in favour of her husband, the mortgage having been made on 19th August 1881. We do not consider therefore that it has been shown that any benefit accrued to the plaintiffs from this compromise between one of their ancestors and another of their, ancestors.
5. The property appears to have been held in the four separate shares and eventually, the two widows, Mt. Laehminan and Mt. Lakhpati, died in the year 1900 and Mt. Jamna had died previous to that in 1898. Mt. Ram Anandi, the daughter of Mahabir Singh, succeeded to a portion of the pro. perty of her father and she died on 13th February 1933. As long as she remained alive, the present plaintiffs had no right to bring a suit because she was entitled to the whole of the property of her father. On her death in 1933 the present suit was brought without any delay on 14th August 1933. Now the position of the defendants is that defendant 1, Har Narain Singh, is the son of a daughter of Mt. Jamna who wrongly got possession of one quarter of the property under the agreement of 1882. Defendant 2, Girja Saran Singh, is the husband of Mt. Patto, the daughter of a predeceased son of Mahabir Singh, and he was also in possession of a portion of the property. The two plaintiffs, on the other hand, are the sons of a daughter of Mahabir Singh and under the Hindu law the plaintiffs are clearly entitled to succeed to all the property of Mahabir Singh.
6. Various arguments have been addressed to us. The main argument which has been addressed to us arises from the fact that the property is mostly occupancy tenancy. As regards the fixed rate tenancy, there is no doubt that the succession to it is governed by Hindu law. In regard to the occupancy tenancy, the argument by learned Counsel for the appellants is that the succession is governed by Sections 24 and 25(1), Agra Tenancy Act (3 of 1926). He claims that the plaintiffs to succeed must be within the Proviso of Section 24 which is:
Provided that no such daughter's son or 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.
7. Assuming for a moment that this contention of law is correct, there is a finding of the trial Court as follows:
I believe the plaintiffs' evidence which establishes that they were sharing in cultivation with Mahabir Singh.
8. Ground No. 10 of appeal by the defendants to the lower Appellate Court questioned the correctness of this finding. Now the burden of proof was on the appellant-defendants to show that the finding was incorrect. The Munsif had detailed the nvidence of sharing in cultivation on which the plaintiffs have relied. The lower Appellate Court deals with this matter in the following passage:
It is also argued that according to Section 24 of the present Tenancy Act, the plaintiffs cannot inherit the tenancy of Mahabir Singh as they did not share in the cultivation of the holding at the time of the death of Mahabir Singh. The plaintiff Anand Ram gave his age in a suit filed by him against Chirkit as 50 years (vide Ex. ZZ) dated :l.8th November 1932. Mahabir Singh died in 1882. Thus he might be a year old and his brother six years old at the time of death of Mahabir Singh. 1 agree with the learned Counsel for the appellant that the plaintiffs were too young to share in the cultivation if their age was really one to six years. 'Hut the village people often are very indifferent in giving their ago when making a statement and the age of 50 written by the reader of the Court cannot be conclusive regarding the age of the plaintiff. But apart from this the learned Counsel for the respondent has argued that it was not necessary for the plaintiffs to have shared the cultivation with Mahabir Singh.
9. It appears from this passage that the appellants counsel relied solely on the age given by Anand Ram in the previous suit of 1932. The Court found that that age was not a reliable piece of evidence. There was therefore nothing left on which the two appellants challenged the finding of the trial Court and apparently the lower Appellate Court meant that the finding of the trial Court as to sharing in cultivation should stand. There is therefore a finding of fact against the appellants that the plaintiffs did share in the cultivation of Mahabir Singh and accordingly even if Section 24 of Act 3 of 1926, is applied to the plaintiffs, they satisfy the criterion in the Proviso of that Section and are entitled to succeed to the occupancy tenancy of Mahabir Singh in question. In view of this finding of fact, it is perhaps not very necessary to discuss the correctness of the legal argument of counsel for the appellants. But we may briefly mention our view. Learned Counsel relied on the Full Bench ruling in Dular Pandey v. Nanda Budhai (1938) 25 A.I.R. All. 396. He claimed that the principle of that ruling would apply to the present case. Now in the present case there was an occupancy tenant Mahabir Singh who died in the year 1882 while Act 12 of 1881 was in force and under Section 9 of that Act on his death the succession to his property devolved as succession to landed property, that is to say as he was a Hindu the personal law, that is the Hindu law, applied and his widows held the limited estate of a Hindu widow. On their death in the year 1900 his daughter, Mt. Ram Anandi succeeded to the limited estate of a daughter under the Hindu law. Now Act 2 of 1901 came into force and Section 22 made provision for the succession to an occupancy tenant but no reference is made to the case of an occupancy tenant who had died before the Act. Further, Section 22 of that Act does not confer any right of succession on a daughter. In 1926 United Provinces Act 3 of that year was passed and there is a table of succession in Section 24 but that table also does not grant any right of succession to a. daughter.
10. The question in the present case is how is the succession regulated on the death of the daughter in 1933? The claim for the appellants is that the succession would be regulated under Section 25(1) and that we should hold that the reference in that sub-section to a female occupancy tenant who has inherited an interest in a holding under Section 24 will apply to Mt. Ram Anandi. In the Full Bench case there was a question of a tenant who had died while Act 2 of 1901 was in force and he had been succeeded by his widow and his widow had died while Act 3 of 1926 was in force. The question before the Full Bench was whether the language in Section 25(1) could be held to include this widow or whether it must be held that she came into the residuary Sub-section (2) of Section 25. One of the learned Judges held that she did come into the residuary Section 25(2) and that she acquired the status of a new stock of descent under that sub-section. The remaining four Judges -constituting the majority of the Bench held that she would come into Section 25(1) and that the words "a female occupancy tenant who has inherited an interest in a holding under Section 24" might be extended to apply to her by reading the words "an interest in a., holding under Section 24" as "an interest of the nature prescribed by Section 24." Now in that, case there was no great difficulty in such an interpretation because the widow had succeeded under Section 22, Act 2 of 1901, to the limited interest under Sub-section (b) till her death or remarriage and that interest is expressed in similar words in Section 24, Clause 2 of Act 3 of 1926, as "widow till her death or re-marriage."
11. But the learned Counsel for the appellants desires to make a very great extension of the dictum of this Full Bench. The person comes not with the interest of a widow but with the interest of a daughter and Section 24 of the present Agra Tenancy Act, does not give any interest to a daughter. If we were to apply the interest of a widow under Section 24 to a daughter, we would then have to hold that the interest of the daughter would be forfeited on remarriage which is obviously incorrect. Moreover, the cases are different as in the Full Bench case the male tenant died while Act 2 of 1901 was in force and in the present case the male tenant died while Act 12 of 1881 was in force. Under the latter Act the succession was similar to that of land, that is to say the personal law of the tenant applied. Now in the Province of Agra there are tenants who are Hindus and tenants who are Muslims and tenants who are Christians. The personal law of these three classes is different and it is only in the case of Hindus that the widow or daughter takes a limited right. In the other two classes the widow or daughter takes an absolute right and it would be extremely difficult to say that the widow or daughter of a Muslim or Christian tenant who died while Act 12 of 1881 was in force could come into Section 24 as Section 24 deals with widows who take a limited right. No doubt the Act does indicate in Section 25(2) that the persons with whom that sub-section deals are female occupancy tenants other than these in Sub-section (1) and it would appear on first sight that the Act may intend that these two sub-sections should include all female tenants. But it is also possible to hold a view that the Act did not intend to deal with a case like the present where the last male occupancy tenant had died while Act 12 of 1881 was in force.
12. As already pointed out it would be difficult to deal comprehensively with the different classes of personal law applying to different tenants under that Act and the number of such cases would be very small. It was apparently therefore not the intention of the Legislature to deal with this matter at all in the present Tenancy Act. In this connexion we have been refer red to a ruling of a Bench of this Court: Ajodhiya Pandey v. Mt. Rajna (1935) 22 A.I.R. All. 845. In that case there was somewhat a similar problem, where the male occupancy tenant died under Act 12 of 1881 and was succeeded by his widow who died under Act 2 of 1901 and succession was claimed by his daughter. The Bench held that as Act 2 of 1901 was silent on the point, it would not apply to such a case and that the personal law of the deceased male occupancy tenant applied. We observe that it is true that this case differs as the death of the widow occurred under Act 2 of 1901 and not under Act 3 of 1926. But we consider that the principle of this ruling is one which we should follow. After the introduction of Act 2 of 1901 there were conflicting decisions on the point as to how far Act 2 of 1901 should apply to the case of a tenant who had died previous to that Act. In some cases the argument has been put forward that some vested interest had been, acquired under the previous Act, apparently with a view to apply the provisions, of the General Clauses Act or Section 2, Sub-section (4) of Act 2 of 1901. Those claims were rightly held to be incorrect. It is undoubtedly a, fact that Act 2 of 1901 in Schedule 2 repealed the whole Act (12 of 1881) and the provisions of Section 9 are no longer law. But the present Tenancy Act in Section 23, Sub-section (1) states that the interest of an occupancy tenant is heritable. Now in general the personal law will apply to show how the property of a deceased person is to be inherited.
13. It is only so far as the personal law is modified by statute that the personal law will not apply. We have therefore to see whether the present Tenancy Act does modify the personal law in a case like the present and the burden of proof to this effect lies on learned Counsel for the appellants. In our opinion he has failed to show to us that the present Tenancy Act does modify the personal law in a case like the present. For these reasons we consider that the personal law would govern the succession and under that personal law it is not necessary that the plaintiffs should have shared in the cultivation with Mahabir Singh. But as we have pointed out, there is a finding of fact that they did so share in the cultivation.
14. A further argument by learned Counsel was that the agreement of 1882 would be binding as a family settlement. We do {not think that this is a sound argument. The action of the two widows of Mahabir Singh could not, in our opinion, make a family settlement which would be binding on the reversioners. The widows no doubt could make an agreement for the period of their lifetime, but they could not bind the revereioners by the partition of the estate assigning shares to strangers which they set up by this agreement. Some further plea was made of res judicata apparently on the basis of the compromise of Suit No. 133 of 1886. That suit was brought by the two daughters Mt. Uneeta and Mt. Ablakha in their personal capacity and not in the representative capacity and asking for a pensonal relief, so we do not think that any res judicata would bind the plaintiffs from that compromise. Moreover, these two persons were persons claiming a limited interest as Hindu daughters and we do not think that they should bind male reversioners by such action. For these reasons we dismiss this second appeal with costs.