JUDGMENT Turner, Officiating C.J.
1. The ninth section of the Rent Act XVIII of 1873 declares what powers of alienation and succession attach to the rights of occupancy described in the preceding sections. It deals first with tenants at fixed rates, and declares simply that their right is heritable and transferable. It then proceeds to declare that no other right of occupancy is transferable by grant, will, or otherwise, except to a particular class, namely, co-sharers in such right, and then declares, in respect of such last-mentioned right, that is to say, a right of occupancy other than the right of a tenant at fixed rates, that if the person entitled to it dies it shall devolve as if it were land, subject to the proviso 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 section; that is to say, it limits the right of succession under this provision of the Act to the lineal descendants of the deceased occupier, and in default of them to such of the collaterals as at the time of the death of the deceased occupier shared in the cultivation of the holding. It has been urged that the words "under this section" indicate that the right of succession is limited as well in the case of tenants at fixed rates as in the case of other tenants with a right of occupancy, and that the proviso applies to all rights of succession declared in that section. It is not necessary to determine whether the words on which reliance is placed are mere surplusage, nor whether it would have been more correct to substitute for them the words "under the preceding clause," nor whether, as has been suggested at the bar, they were introduced to show that the limitation of inheritance did not extend to rights of succession derived from custom, but to rights of succession created by the section in favour of tenants with a right of occupancy other than tenants at fixed rate, for the language of the section is of itself sufficiently clear. The proviso is limited to such of the collateral relatives of "the deceased" as "then" shared in the cultivation of the holding. These terms clearly relate to the person and the time mentioned in the preceding clause, "When any person entitled to such last-mentioned right dies." The section having first mentioned and dealt with the rights of a tenant at fixed rates, the right last-mentioned is the right of occupancy other than a right at fixed rates. Moreover, the construction contended for would leave a tenant at fixed rates atliberty to transfer his estate in his lifetime to whomsoever hepleased, while it would place on the devolution of the right by inheritance an onerous restriction. The proviso is undoubtedly limited to the devolution by inheritance of those rights of occupancy dealt with in the preceding clause, and does not affect the succession to the rights of tenants at fixed rates.
Pearson, J.
2. In my opinion the proviso does not refer to the holdings of tenants at fixed rates. The words in the third clause of the section "last-mentioned rights" clearly refer to the right mentioned in the preceding section, which is the right of occupancy tenants other than those who hold at fixed rates; and the clause declares how, when any person entitled to such lastmentioned right dies, the right shall devolve; while the proviso immediately following that no collateral relative of the deceased who did not then share in the cultivation of his holding shall be entitled to inherit, clearly refers to the person entitled to the same last-mentioned right who has died, and to him alone. The use of the word "clause" instead of "section" would apparently have been more proper.
Spankie, J.
3. Under the first clause of Section 9 of the Rent Act the right of tenants at fixed rates is declared to be heritable and transferable. The words are "shall be" heritable and transferable. There is no limitation and proviso to this declaration. The clause deals with tenants having a right of occupancy defined in Section 6 of the Act as "tenants at fixed rates." The next clause deals with other tenants having a right of occupancy, but not at fixed rates. It declares that no other right of occupancy shall be transferable by grant, will, or otherwise, except as between co-sharers in such right. The third clause declares that, when any person entitled to "such last-mentioned right dies, the right shall devolve as if it were land." What is "the right last-mentioned," not rights, be it observed? Clearly, that other right of occupancy that is held by tenants who are not "tenants at fixed rates." The proviso therefore that no collateral relative of the deceased who did not share at the time of his death in the cultivation of his holding "shall be entitled to inherit under this section" applies only to those tenants having rights of occupancy but not at fixed rates. The words "under this section" are awkwardly expressed, but there can be little doubt, I think, that the proviso applies only to those tenants who are occupancy-tenants within the meaning of Section 8 of the Act, those persons alone possessing the "last-mentioned right" referred to in the third clause to which the proviso is attached. It is possible, perhaps probable, that the proviso was due to the somewhat uncertain wording of Section 6 * of Act X of 1859, which acknowledges the right of occupancy of a ryot cultivating or holding land for twelve years. Then it is declared that the holding of "the father or other person from whom a ryot inherits" shall be deemed to be the "holding of the ryot whithin the meaning of this section." Under the Rent Act, XVIII of 1873, the right in such cases shall devolve as if it were land, with this proviso 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 section." This view of the case seems to show that the liberty of tenants at fixed rates to deal with their right is absolutely without limit, and inheritance follows the usual course with regard to the devolution of property, according to the law which applies to the deceased tenant, whereas that law, whatever it may be, is so far controlled by Section 9 of the Rent Act that, in cases of rights of occupancy acquired under Section 8 of the Act, no collateral relative of the deceased who did not share in the cultivation of his holding shall be entitled to inherit.
Oldfield, J.
4. I concur in the view taken by Mr. Justice Spankie.
*Right of occupancy of ryot cultivating or holding land for 12 years.
[Section 6:--Every ryot who has cultivated or held land for a period of twelve years has a right of occupancy in the land so cultivated or held by him, whether it be held under pottah or not, so long as he pays the rent payable on account of the same; but this rule does not apply to khomar, neejjote, or seer land belonging to the proprietor of the estate or tenure and let by him on lease for a term or year by year, nor (as respects the actual cultivator) to lands sublet for a term, or year by year, by a ryot having a right of occupancy. The holding of the father, or other person from whom a ryot inherits, shall be deemed to be the holding of the ryot within the meaning of this section.]