Dular Pandey v. Nanda Badhai

Bennet, J.:— This is a second appeal by the plaintiffs zamindars who brought a suit for ejectment of two persons Sarju and Ram Lal from an occupancy tenancy. The two courts below have dismissed the suit of the plaintiffs. As an important question of law has arisen the second appeal has been referred to a Full Bench of five Judges.

The pedigree of the defendants is as follows:

Sita Ram was admittedly the last male occupancy tenant and he died in 1906 or 1907. He was succeeded by his widow Mst. Bhagni, who died on the 28th of July, 1931. The lower appellate court has held that Sarju, defendant 1, was joint in cultivation with Sita Ram until his death. Ram Sarup, the other defendant, died during the course of the litigation and his son Shyam Lal was entered in his place. Mst. Bhagni on the death of her husband in 1906 or 1907 succeeded as a widow under the provisions of section 22 of the Agra Tenancy Act (II of 1901) which gave her the right to hold the tenancy until her death or remarriage. In 1926 the legislature enacted the Agra Tenancy Act, Act III of 1926, and it was after the enactment of that Act that Mst. Bhagni died in 1931. The case of the appellants is that Mst. Bhagni on the passing of Act III of 1926 acquired rights of a full tenant under section 25(2) and on her death the succession should devolve from her and not from her husband. The Bench which referred this case was mistaken in stating that this was the case for the plaintiffs throughout, as it was not mentioned in the pleadings or in the judgments of the lower courts, nor was it a ground of appeal to the High Court. But as the point is a point of law on the facts held to be proved by the lower appellate court, the point may be entertained in second appeal, as laid down in Moolla Sons, Limited v. Burjorjee(1).

The issue may be stated as follows: “Where an occupancy tenant died while the Agra Tenancy Act of 1901 was in force, and was succeeded by his widow under section 22 of that Act, and the widow died after the Agra Tenancy Act of 1926 had come into force, does the tenancy devolve upon the nearest surviving heir of the last male tenant in accordance with the table of succession for occupancy tenancies, or does the tenancy devolve upon the heirs of the widow under section 25(2) of the Agra Tenancy Act of 1926?”

The argument of learned counsel for appellants is as follows: The Agra Tenancy Act of 1926, section 2(1), states that the Agra Tenancy Act, 1901, is hereby repealed. The table of succession in section 22 of that Act is, therefore, no longer law. The new Act deals with the succession of male tenants in section 24 and with the succession of female tenants in section 25. Section 24 provides an order of succession when a male tenant dies, and as the word “dies” is used in the present tense, it cannot refer to a male tenant who died before the Act. The female tenant has died after the Act, and she is not one of the female tenants referred to in section 25(1). Section 25(2) is a residuary sub-section for all other female tenants not referred to in section 25(1) and therefore this widow must come into section 25(2). It must be admitted that if the sections are read according to the words used, considering the mere letter and not the spirit of the Act, this interpretation is quite plausible, for the actual words, “a widow who succeeded under section 22 of the Agra Tenancy Act of 1901”, do not find a place in section 25(1). On the other hand there are a number of reasons against this method of interpretation.

1. Section 25(2) deals with female tenants who have acquired their tenancy rights themselves and not as successors of males under section 25(1), and section 25(2) provides that these female tenants shall become a stock of descent, instead of the male remaining the stock of descent. If such a change had been intended by the new Act for widows who succeeded to the occupancy tenure of their husbands, why would the change not; have been made for all such cases? Why would the change be made only for the small class of widows who had succeeded before the Act, and widows who succeeded after the Act be treated by section 24 in the same manner as widows were treated by section 22 of the former Act?

2. The provisions for devolution from the female tenant in section 25(2) apply to a tenant who has acquired the tenancy herself, but do not apply well to widows who succeeded under the former Act. Devolution is (a) to “her male lineal descendants in the male line”. A widow succeeded under section 22 of the former Act when her husband had no male lineal descendants. If she is to have male lineal descendants for the new Act, she must make a second marriage. Such a marriage is not legal for the higher cultivating castes of Hindus in Agra province, and if recourse were had to the Hindu widows Remarriage Act, 1856, section 2 provides that the rights of the widow in her deceased husband's property cease on re-marriage. The same objection applies to (b) “her husband”. Both these provisions can only apply where a widow re-marries where her caste permits re-marriage. The former Act and the present Act provide that when the widow of a tenant re-marries, her interest in the tenancy ceases. Is it likely that the legislature would not only remove the forfeiture on re-marriage for this limited class of widows but go further and provide that the male lineal descendants of the second husband and the second husband should succeed to the tenancy of the first husband in preference to the remaining heirs of the first husband who are deprived of any right of succession? No reasonable explanation has been suggested for so strange an alteration. When the last class (c) is considered, the difficulty arises that “her daughter's son” may apply equally well to the son of her daughter by the hist husband or the son of the daughter by the second husband. It is certainly strange that of the three classes of heirs who came after the widow in section 22 of the old Tenancy Act the only class who might succeed according to the case for the appellant would be the daughter's son. This point about the application of classes (a), (b) and (c) of heirs in section 25(2) to widows who succeeded under the former Act does not appear to have been understood in the ruling of this High Court which has given rise to the present Full Bench, Piare Lal v. Soney Lal, as at page 439 Sulaiman, C.J, observed that “Her lineal descendants and her daughter's son would be the same as those of her husband.” On the contrary the lineal descendants cannot be the same, or they would have taken before the widow under section 22 of the former Tenancy Act; and the daughter's son may or may not be the same. And the husband in (b) cannot be the husband who has died.

3. In Agra province the great majority of the tenants are Hindus, and their custom is to marry a bride from a village many miles away from their own village. The daughter's son will always belong to a different village from the village where the tenancy exists, and such persons seldom have the qualification of having shared in the cultivation. Moreover a small holding in a distant village is of little value to them whereas a holding in the same village is always of value to those heirs of the male tenant who live in his village. The heirs in section 25(2)(a) and (b) depend on remarriage, which would seldom take place. The result of putting these widows under section 25(2) would be that in the great majority of cases the tenancy would terminate on the death of the widow and the zamindar would get possession. On the other hand section 22 of the former Act provided for the widow to be succeeded by (c) the brother of her husband, (d) his daughter's son, and (e) male collaterals, the classes (d) and (e) having shared in his cultivation. Any tenant has a number of male collaterals and when the tenant has no male lineal descendants or brother, some collaterals usually assist him in cultivation when he is middle aged. There are very frequently qualified collaterals who succeed on the deadi of the widow, and the interpretation of the appellants would imply that the legislature intended to deprive these collaterals, also the full brother, of the right to succeed provided by the former Act, and, as already stated, to make succession under section 25(2) depend on the unlikely event of the widow re-marrying, or a daughter's son sharing in her cultivation. It is most unlikely that the legislature had any such intention.

4. These improbabilities become of even greater importance when the effect of the United Provinces General Clauses Act, Act I of 1904, is considered. That Act was only considered in relation to the reversioners in the ruling quoted above, Piare Lal v. Soney Lal at page 454, and it was rightly observed that as the interest of the reversioner has not vested, section 6 of the General Clauses Act could not apply to the reversioner. But there is another person whose interest has vested, and that is the widow herself. The General Clauses-Act section 6, provides: “Where any United Provinces Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.” Now the widow “acquired the right” under section 22 of the Tenancy Act of 1901 to hold the tenancy of her husband “till her death or re-marriage”; and the “right” she acquired had the “liability” to forfeiture on her remarriage. To put this widow under section 25(2) of the Tenancy Act of 1926 would “affect her right and liability” by removing the liability to forfeiture on remarriage altogether, as such forfeiture only exists for her corresponding class in section 25(1) but not for anyone in section 25(2). In my opinion the nature of her right is also affected by her being made the stock of descent in place of her husband, and her children by a second marriage and her second husband and the son of her daughter by her second husband may all succeed to her tenancy. section 6 of the General Clauses Act requires that these changes should not be made “unless a different intention appears”, that is, the intention to make these changes must appear from the new Act. The object of section 6 appears to be that a change should not be made by mere verbal construction unless the intention to make a change appears from the new Act. Where the new Act is silent in regard to the rights in question, such silence is consistent with the rights having been overlooked, and an intention to change the rights should not be deduced from mere literal construction. In the present Tenancy Act of 1926 there is no actual and express mention at all of the rights of widows who have succeeded to tenancies under section 22, Act II of 1901. The argument for the appellant is merely one of implied reference; these widows are not mentioned in section 25(1), and section 25(2) says that “When any female ex-proprietary, occupancy or non-occupancy tenant other than one subject to the provisions of sub-section (1) dies.”; the appellant therefore argues that as these widows are not expressly mentioned in section 25(1) they must come under the residuary section 25(2). It is not at all probable that the legislature would have intended to make such a change for such widows without expressly mentioning them, and the change is most improbable one. It is much more probable that the legislature intended that they should come under section 25(1), and section 24, class II, “widow till her death or re-marriage”, which exactly reproduces the provision of section 22 of the Tenancy Act of 1901 in regard to these widows. The intention to make a change required by section 6 of the General Clauses Act does not exist in the Agra Tenancy Act of 1926. As the tenancy of the widow was liable to forfeiture on re-marriage as long as Act II of 1901 was in force, it is the forfeiture which was a liability, and if the widow were placed in section 25(2) of the Tenancy Act of 1926 on the passing of that Act, the liability to forfeiture on re-marriage would be taken away altogether. By some misunderstanding the above argument has been altered to an argument that the remarriage was a liability. This is incorrect. The liability is the forfeiture, and not the re-marriage, and the re-marriage is only the cause of the liability arising, and is not the liability. To explain further what is meant by a liability in section 6(c) of the General Clauses Act, I may refer to the decision of Sir P.C Banerji and Tudball, JJ., in Jug Ram v. Jewa Ram. The Act in question was Act X of 1897 of the Governor-General in Council, but the provision is exactly the same. A decree for pre-emption had been granted by the High Court on the 2th of November, 1908, allowing two months till the 27th of January, 1909, to pay the purchase money. He did not pay. Under Act XIV of 1882 no extension of time could be granted, but under the present Code of Civil Procedure which came into force on the 1st of January, 1909, section 148 allows a court to extend time for doing any act prescribed or allowed by the Code. On page 648 the Court said: “Further, having regard to the provisions of section 6 of the General Clauses Act, 1897, we think that section 148 of Act No. V of 1908, even if it is applicable to a case like this, would not apply to the present case. The appellant incurred a liability under Act XIV of 1882 to have his suit dismissed on non-payment of the purchase money within the time fixed. That liability cannot be affected by the provisions of the new Code of Civil Procedure. It is true that there is no vested right in procedure but the question before us is not one of procedure but of an obligation and liability.” I have referred to the right acquired by the widow under Act II of 1901 and I have stated that section 6(c) of the General Clauses Act requires that the repealing Act, Act III of 1926, shall not affect that right unless a different intention appears. As shown above, to put the widow in section 25(2) of the new Act would affect her right by enlarging it. I may refer to some cases in which the operation of the General Clauses Act, section 6(c), in regard to affecting rights already acquired was applied to changes in the tenancy law. In Ram Pargas Upadhia v. Sooba Upadhia there was a mortgage of the holding of an occupancy tenant in 1881 when it was legal, and a sub-mortgage in 1899 and in 1904 a further mortgage by the original mortgagee, and a transfer by the sub-mortgagee in 1907. On page 757 the Bench held: “No doubt, section 20 of the Agra Tenancy Act prohibits the transfer of an occupancy tenancy except as therein provided. But that Act was not in force when the mortgage of the 20th of July, 1881, was executed, and by the provisions of the United Provinces General Clauses Act of 1904, rights accrued before the Agra Tenancy Act came into force are not prejudiced by that enactment.” And the Bench then quoted section 6(c) of the General Clauses Act. In Bhagwana v. Bhagwan Das(2) there is a somewhat similar application of section 6(c) of the General Clauses Act to the Tenancy Act of 1901. In Ram Singha v. Shankar Dayal(3) there was a Full Bench decision where a suit for arrears of rent was filed in the court of an Assistant Collector, first class, under the Tenancy Act of 1901, which gave a right of appeal to the District Judge. Before the suit was decided Act III of 1926 came into force, which gave no appeal from the decision of an Assistant Collector, first class, when the value of the subject-matter was less than Rs. 200. On page 967 it was held: “It is admitted that there is nothing in the new Tenancy Act expressly providing that it shall affect all pending actions, or that it shall have retrospective effect. If, therefore, the right of appeal was a substantive right and not a mere matter of procedure, it could not be taken away by the new Act… In our opinion the point is concluded by the pronouncement of their Lordships of the Privy Council in the case of Colonial Sugar Refining Company v. Irving. In that case, ordinarily an appeal lay to their Lordships of the Privy Council from an order of the Supreme Court. While the matter was pending in that Court, the law was amended so as to allow an appeal to the High Court. Their Lordships of the Privy Council held that the new Act could not deprive the party of his right to appeal to the Privy Council.” And on page 969 the Full Bench states that the case before them was governed by section 6 of the United Provinces General Clauses Act which laid down the same principle.

5. The argument for the appellant was that section 24 of the Tenancy Act of 1926 does not apply because the male tenant died before the Act, and that the words “When a male… tenant dies” imply that the section will only refer to the case of a male tenant dying when the new Act is in force as the present tense is used. After the ruling in Piare Lal v. Soney Lal a case came before a Full Bench of the High Court consisting of the same three Judges, Rajpali Kunwar v. Sarju Rai An exactly similar problem arose in regard to the Hindu Law of Inheritance (Amendment) Act, Act II of 1929. Before the Act, on the death of a separated Hindu his widow held for life and on her death the succession opened out to various persons. The Act purported to “alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate.” There was no reference to a Hindu male dying before the Act. The question was, where a Hindu male died before the Act and his widow succeeded and then died after the Act had come into force, should the new table of succession in the Act be applied or not? The Full Bench held unanimously that the new table of succession in the Act should be applied on the succession opening out on the death of the widow, and on page 1048 it is stated: “The word ‘dying’ by no means connotes a future tense, nor for the matter of that a past tense, exclusively. Taking it literally it would rather connote a present tense. But as pointed out by the learned Judges of the Lahore High Court in Shrimati Shakuntala Devi v. Kaushalya Devi, the word is a mere description of the status of the deceased and has no reference and is not intended to have any reference to the time of the death of a Hindu male. The expression merely means ‘in the case of intestacy of a Hindu male’.” Applying the same reasoning to the present case, the words in section 24 of the Tenancy Act, 1926, “When a male… tenant dies” mean “in the case of a male tenant's death” and the words do not imply that the male tenant should die when the new Act is in force, but the section will apply in the case of a widow dying after the new Act who has succeeded under the former Act. The present case therefore comes under section 24, Act III of 1926, and the collaterals who shared in the cultivation are entitled to succeed, and the widow comes into section 25(1) as a “widow of class II in section 24”. The view of this High Court on the Hindu Law of Inheritance (Amendment) Act is the same as that taken in Chulhan Barai v. Akli Baraini and in Shrimati Shakuntala Devi v. Kaushalya Devi and in Sattan v. Janki.

The question of interpretation of this section 25 and the case of widows who succeeded before Act III of 1926 and died after that Act first came before the Board of Revenue in Ganga Dai v. Chittar(4). The decision was in favour of the view of the present appellant. But that view was reversed in all subsequent decisions: Aditya Narain Singh v. Munni Lal, Ajodhya Prasad v. Manager, Court of Wards, Collector in charge, Court of Wards v. Ram Kerat Rai, Hoshiyar Singh v. Piare Lal, Raghubar Singh v. Teekam Singh(5) and Ram Kumar v. Mangalpuri(6). In Aditya Narain Singh v. Munni Lal at page 423 Mr. Oppenheim, Senior Member, stated: “I have discussed this question with Mr. Keane, the late Senior Member, who accepted this view as correct in a decision reported in Ganga Dai v. Chittar(7), and also with the present Junior Member, Mr. Walton. We all think that the view taken was an unnecessarily narrow view. We all think that it was the intention of the section to divide female tenants into two classes, those with absolute or quasi-absolute estates such as Muhammadan widows who had succeeded under the Rent Act of 1881 or women who had cultivated themselves as non-occupancy tenants for more than twelve years, and women with life interests only.” On page 424: “Had it been the intention of the Act to confer additional rights on widows who had previously held life estates only to the prejudice of the reversioners of the last male tenant or to the prejudice of the landlord, then that intention would have been stated in the Act.” I do not think that the case for the appellant is prejudicial to the landlord, but the reasons given are sound.

The matter was first raised in this High Court in Jaswant Singh…Defendant v. Ganga Sahai…Plaintiff .(8) in which Allsop, J., held against the view of the appellant and in agreement with the view of the Board of Revenue. The matter came before a Bench in Piare Lal v. Soney Lal(9) and Sulaiman, C.J, was in favour of the view of the appellant and I was against it; on a reference to a third Judge the view of Bajpai, J., was in favour of the present appellant. When the matter came up again in the present case the learned Judges considered that the present reference to a Full Bench was necessary for an authoritative pronouncement.

Reference has also been made in argument to the case of a widow who succeeded to an occupancy tenancy under section 9 of Act XII of 1881, under which succession was governed by the personal law, with the addition that collaterals must have shared in the cultivation of the last male holder. The rulings on the point have been mentioned in Piare Lal v. Soney Lal at page 433, but their purport is not quite accurately given:

In Ayub Ali Khan v. Mashuq All Khan it was held that a Muhammadan widow succeeding under Act XII of 1881 to an occupancy tenancy of her husband acquired an absolute fight to be considered an occupancy tenant, that on her death in 1902 the table of succession in section 22 of Act II of 1901 applied to her as the occupancy tenant and her brother was entitled to succeed to her.

In Dulari v. Mul Chanel the daughter of an occupancy tenant succeeded under Act XII of 1881 as she was poor, and on her death in 1906 her sister who was well off claimed to succeed. It was held that she was entitled to succeed in preference to the sons of the deceased sister as section 22 of Act II of 1901 would not apply, as “The present Tenancy Act does not purport in any way to take away the rights which had already been acquired.”

In Deoki Rai…Plaintiff v. Mt. Parbati…Defendant . a tenant under a perpetual lease was succeeded by his daughter under Act XII of 1881, and the daughter died after Act II of 1901 came into force, leaving a son. It was held that the daughter's interest could not be treated as a limited one under section 22. Either she was a stock of descent under that section, in which case her son succeeded under the section, or Hindu Law applied and he succeeded as her heir.

In Nathu v. Gokalia the widow who succeeded before Act II of 1901 died after it, leaving a daughter in possession. The collaterals of the last male tenant sued for possession, alleging joint cultivation with him. It was held that they had no right to succeed to the widow if she were regarded as the full tenant under section 22, and that the widow could not be treated as a widow with limited interest under section 22 because the male tenant had died before the Act.

In Bisheshar Ahir v. Dukharan Ahir it was held that “There is nothing in the Agra Tenancy Act which enlarges the estate of a Hindu female in an occupancy holding in possession at the time the Act was passed beyond the ordinary estate of a Hindu female.” As section 22 did not apply the case was decided by Hindu law.

In Bechu Singh v. Buldeo Singh it was held that in a similar case Act XII of 1881 governs the succession, which in section 9 requires collaterals to have shared in the cultivation, and not the ordinary Hindu law: “As we have stated above, the succession opened out to the estate of Ram Kirpal when the Rent Act of 1881 was in force. The actual possession of the plaintiffs, if they were then in existence, was merely postponed during the life time of the widow.”

In Bhup Singh v. Jai Ram it was held in a similar case that section 22 would not apply, but the ordinary Hindu law applied.

In Musammat Sumari v. Jageshar, where the widow dying after Act II of 1901 left a daughter, it was held that the daughter could not succeed, as she had acquired no right on the death of her father before the Act, and on the death of her mother section 22 applied and daughters are not in the table of succession in that section.

In Bhawani Bhikh v. Sidh Narain the male tenant died under Act X of 1559 and his widow died under Act II of 1901 and the learned single Judge held that section 22 applied and that the daughter's son who had shared in the cultivation of the widow the “last occupant” was entitled to succeed.

In Sahiban Bibi v. Madho Lal it was held that a widow who succeeded to her husband as occupancy tenant before the Tenancy Act of 1901 became the owner of the occupancy holding and, being a Muhammadan, her re-marriage did not forfeit her tenancy, as she did not have the limited interest under section 22 which is forfeited on re-marriage.

These rulings show that the right of the widow acquired before the Tenancy Act of 1901 was held to be unaffected by that Act, as it was not held to be a mere right of a widow under section 22(b) to hold “till her death or re-marriage”. Where the widow was brought under that section at all she was treated as the full tenant, a stock of descent. The mere fact that section 22 refers to male tenants, “his interest” and “his widow”, but not to “her husband” did not prevent the rulings putting the widow in the place of the male tenant. In other cases reference is made to Hindu law, and in some cases to section 9 Act XII of 1881, though that Act had been repealed by the second schedule to Act II of 1901. All the rulings proceed on the principle that when the Tenancy Act of 1901 was passed, as it did not specifically mention widows who had succeeded to male occupancy tenants before that Act, their rights should not be altered into the more limited rights of widows who succeeded after the Act, under section 22(b), and if they are brought under the Act, it should be as tenants who have full rights as those were the rights they had before the Act. The principle is that as they are not mentioned specifically their rights should not be changed.

If this principle is applied to the present case, it is against the claim of the appellants, as they want to change the extent of the rights of the widow, in this, case by enlarging the rights. As there is a class, of widows in the Act of 1926 with interests exactly the same as widows who took under Act II of 1901, on the principle of these earlier rulings these widows should be placed in that class.

For the reasons set out I consider that the tenancy does not devolve in the present case on the heirs of the widow under section 25(2) but that the tenancy devolves on the nearest surviving heir of the last male tenant in accordance with the table of succession for occupancy tenancies given in section 24, Act III of 1926. As the respondent Sarju had been joint in cultivation with Sita Ram till his death, Sarju legally succeeded to the tenancy, and as he is in possession the plaintiffs-zamindars have no right to dispossess him. I would therefore dismiss the second appeal with costs. No other ground has been argued.

Iqbal Ahmad, J.:— The decision of the present appeal depends on the answer to the question as to-what is the rule of law governing succession to an occupancy holding to which a widow succeeded on her husband's death while the Agra Tenancy Act II of 1901 was in force and who remained in possession of the holding and died after the coming into force of the new Tenancy Act (Act III of 1926).

There has been considerable divergence of judicial opinion on the point in this Court. In Jaswant Singh…Defendant v. Ganga Sahai…Plaintiff . Allsop, J., held that clause (1) of section 25 of the present Tenancy Act is applicable to such a case and that, in accordance with the provisions of that clause, on the death of the widow the holding would devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with section 24 of the Act. The question again arose for decision in Piare Lal v. Soney Lal and in that case there was difference of opinion between Sulaiman, C.J, and Bennet, J. Sulaiman, C.J, held that where a Hindu occupancy tenant died while the Tenancy Act of 1901 was in force and was succeeded by his widow and the widow died after the coming into operation of the present Tenancy Act of 1926, the succession to the occupancy holding would be governed by section 25(2) and not by section 25(1) or by section 24 of the present Act. Bennet, J., on the other hand held that “the order of succession in section 24 applies when any person holding in succession to a male occupancy tenant dies during the time Act III of 1926 is in force” and that “a widow who succeeded a male occupancy tenant under section 22, Act II of 1901, and who dies while Act III of 1926 is in force, will therefore be succeeded by the classes in section 24 below her.” In view of the dissentient views expressed by the learned Judges constituting the Bench the case was referred to Bajpai, J., who agreed with Sulaiman, C.J

The Board of Revenue has consistently held that where an occupancy tenant died while Act II of 1901 was in force and was succeeded by his widow who died after the coming into force of Act III of 1926, the devolution to the occupancy holding would be governed by section 25(1) of the present Act: vide Aditya Narain Singh v. Munni Lal, Ajodhya Prasad v. Manager Court of Wards, Nanhi v. Puran Singh, Hoshiyar Singh v. Piare Lal and Ram Kumar v. Mangalpuri. It was observed by the Board in these cases that section 25 of the present Act divides female tenants into two classes, those with absolute or quasi absolute estates and those with life interest only, and that section 25(1) of the present Act regulates the succession to holdings in possession of female tenants with life interest only whereas section 25(2) of the Act is applicable only to the case of those female tenants who had absolute or quasi absolute estate in the tenancy holding in their possession.

Now, up to the year 1901 succession to occupancy tenancy was governed by the personal law of the tenant concerned. But by section 22 of Act II of 1901 the legislature for the first time prescribed a rule of succession applicable to ex-proprietary, occupancy and non-occupancy holdings and the rule so prescribed was at variance with the personal law governing Hindus, Muhammadans or Christians. The order of succession prescribed by that section was as follows: (1) Male lineal descendants in the male line of descent; (2) widow till her death or re-marriage; (3) brother, being a son of the same father as the deceased; (4) daughter's son; (5) nearest collateral male relative in the male line of descent. It was, however, provided that daughter's son or the collateral relative could inherit only if they shared in the cultivation of the holding at the time of the tenant's death.

It would be noticed that though the widow found a place in the list of heirs the husband did not, and this gave rise to the question whether section 22 had any application to the case of a widow whose husband had died before the passing of Act II of 1901 and who herself died while that Act was in force. There was conflict of judicial opinion on the point. In some cases it was held that section 22 applied to such a case whereas the contrary view was taken in other cases. The cases on the point have been noticed by Sulaiman, C.J, in his decision in Piare Lal v. Soney Lal and it is therefore unnecessary for me to make reference to those cases. The fact remains that judicial opinion was divided on the question whether section 22 was exhaustive and regulated the succession to ex-proprietary, occupancy and non-occupancy holdings which were in possession of a female tenant who died while Act II of 1901 was in force.

It was in this state of divergence of judicial opinion that the present Tenancy Act, Act III of 1926, was passed. By the present Act two new classes of tenants, viz., statutory tenants and heirs of statutory tenants, were added to the list of classes of tenants provided for by Act II of 1901, and by two distinct sections in the Act the rule and order of succession with respect to ex-proprietary, occupancy, statutory and non-occupancy holdings held by male and female tenants respectively were separately prescribed. Section 24 of the present Act deals with succession of holdings of male tenants and the order of succession laid down by that section is identical with the order of succession prescribed by section 22 of the former Act except in this respect that two new heirs, viz., father and “mother, being a widow”, have been introduced in section 24 between the widow and the brother. Then by three separate clauses in section 25 the legislature has prescribed the rule and order of succession to female tenants. Sub-clause (3) of that section that deals with a female statutory tenant is immaterial for our present purposes and attention has to be confined only to clauses (1) and (2) of that section. Clause (1) of section 25 provides that “when a female ex-proprietary, occupancy or non-occupancy tenant who has inherited an interest in a holding under section 24, or the female heir of a statutory tenant dies or surrenders or abandons such interest, or, in the case of a widow of class II of section 24, remarries, such interest shall … devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with section 24.”

Then by clause (2) of section 25 provision is made as regards the succession of female tenants not provided for by clause (1). This clause is obviously a residuary clause and governs the succession to holdings of all female tenants other than those contemplated by clauses (1) and (3) of section 25.

Then by section 26 of the Act it is inter alia provided that “except in the case of widows or of a co-tenant who dies leaving no heir entitled to succeed under section 24, no interest in any ex-proprietary, occupancy, statutory or non-occupancy tenancy shall pass by survivorship.”

A perusal of sections 24, 25 and 26 of the present Act makes it abundantly clear that the rules prescribed by those sections as regards devolution by succession or survivorship of the interest of an ex-proprietary, occupancy, statutory or non-occupancy tenant, who dies after the passing of the Act, are exhaustive and that the successor to such a tenant is to be ascertained by an appeal to those sections and to those sections alone. There was no provision in the Act of 1901 about the passing of a co-tenant's interest by survivorship. By section 26 of the present Act this omission has been removed, and it has been provided that except in the case of co-widows all other co-tenants are to be deemed to be tenants-in-common and not joint tenants, and the rule of survivorship for the first time prescribed by the Act is, therefore, to apply only to the case of co-widows. Further it has been provided by that section that where a tenant-in-common dies leaving no heir entitled to inherit under the Act the surviving co-tenant becomes entitled to the whole interest of the deceased in the holding. Similarly the omission in the Act of 1901 to prescribe in express terms the rule of succession as regards holdings in possession of female tenants who died after the passing of that Act has been taken note of by the legislature and detailed provisions as regards succession to female tenants who may the after the passing of the present Act have been laid down by section 25 of the Act. Section 25 brings out in full relief the distinction between a female tenant in her own right and a female tenant with mere life interest who succeeded as the heir of a male tenant. Further, the former Act was silent, about the effect on the interest of the other heirs enumerated in section 22 of that Act of a surrender or an abandonment of a holding by a widow who may have succeeded to a life interest in the holding of her husband. This omission has again been removed and section 108 of the present Act prevents the female tenants with only a life interest from defeating the interest of the reversioner by surrendering or abandoning the holding. All this demonstrates that the legislature has by sections 24, 25 and 26 of the present Act made provision for all possible cases of succession to ex-proprietary, occupancy, statutory and non-occupancy holdings that may arise after the passing of the Act. Indeed this position has not been controverted before us and the argument in the present case has proceeded on the assumption that the successor to the occupancy holding in dispute in the present litigation must be ascertained by reference to the provisions of the present Act.

It is argued on behalf of the plain tills appellants that the present case is governed by clause (2) of section 25 of the present Act and as the widow, who was in possession of the holding in dispute, left no heirs enumerated in that clause, the occupancy tenure lapsed and the plaintiffs were entitled to the decree for possession prayed for by them. The respondents' counsel on the other hand maintains that either section 24 or clause (1) of section 25 of the Act is applicable to the case and in either case they, as the nearest collaterals of the last male tenant, are entitled to succeed as they shared in the cultivation of the holding.

I cannot assent to the proposition that section 24 is applicable to a case in which a male tenant died before the present Act came into force and was succeeded by his widow who died after the passing of the present Act. The substantive provisions of chapter III of the present Act which provide about devolution, transfer and extinction of tenancies and division thereof cannot, in the absence of some provision to that effect in the Act, be deemed to have retrospective effect, and there are no such provisions in the Act. Apart from this the use of the words “male” and “dies” in section 24 indicates that section was intended to apply only to cases of succession of male tenants who died after the Act came into force. Under the former Act a widow on succeeding to her husband's holding got the entire interest of her husband in the holding, with this limitation that the interest inherited by her was terminable on her death or re-marriage. The same provision has been reproduced in section 24 of the present Act. In either case the interest acquired by the widow is the interest of a full fledged tenant and the succession to the holding in her possession opens on her death or re-marriage. The succession in such a case is to a holding in possession of a female tenant and not to a holding of a male tenant and it is not disputed that section 25(1) provides at least about the cases of succession of female tenants who succeeded to a holding under section 24 of the present Act. Section 24 of the Act which is confined in its operation to succession to holdings of male tenants cannot, therefore, in terms apply to such a case. To hold that section 24 also governs succession to holdings in possession of a widow who succeeded her husband would be to render the provisions of clause (1) of section 25 redundant to a large extent and such a method of construction is, if possible, to be avoided.

In support of the argument that section 24 applies to the case before us reference was made to the Full Bench decision in Rajpali Kunwar v. Sarju Rai. It was decided in that case that the Hindu Law of Inheritance (Amendment) Act (Act II of 1929) is applicable to cases where the last male owner had died before the Act came into force but the succession to the estate opened on the death of a widow or other limited owner after the passing of the Act. The preamble to the Act provides that “Whereas it is expedient to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate…” The Full Bench observed that “The word ‘dying’ by no means connotes a future tense, nor for the matter of that a past tense, exclusively. Taking it literally, it would rather connote a present tense.” In my judgment the argument based on this Full Bench decision is without force. The word “dies” does not connote a past tense though it connotes a present and a future tense, whereas the word “dying” can also be used to connote a past tense. Further, the analogy drawn from the provisions of the Hindu Law of Inheritance (Amendment) Act is misleading. That Act introduced amendments in the order of succession prescribed by Mitakshara law and is applicable to Hindus governed by that law. According to that law a female on succession gets only a widow's estate and the reversion remains outstanding and on the death of the female the succession opens not to her estate but to the estate of the last male owner. This is not so under the present Tenancy Act, as, on the death of a female, the succession is not to the holding of a male but to the holding of a female, for the simple reason that the female tenant inherits the full interest of the male tenant in the holding. That this is so is apparent from the fact that if the female in possession of a holding is ejected from the holding the other heirs mentioned in section 24 after the widow cannot on her death claim the holding. It is only in the case of surrender or abandonment of the holding by a female tenant who has succeeded to mere life interest in the holding that the next heir can, in accordance with section 108 of the present Act, sue for possession of the holding. This is not so under the Mitakshara law. In the case of a female succeeding to an estate under that law her acts that are prejudicial to the reversionary rights can be assailed by the reversioners if those acts are not justified by legal necessity. The principle of outstanding reversion cannot, therefore, be imported into the consideration of the provisions of section 24 of the Act.

There is yet another reason in support of the view that I have taken. If we were to apply section 24 the heirs who follow the female heirs mentioned in that section cannot take the benefit of section 108 of the Act as the last mentioned section is restricted in its application to persons “claiming to be entitled under sub-section (1) of section 25 to succeed to a holding.” Surely by section 108 the legislature intended to provide that on the surrender or abandonment of a holding by a female tenant possessing life interest the heirs prescribed by section 25 should be entitled to possession of the holding and this intention of the legislature will be frustrated by the application of section 24.

It follows that the succession to the holding in dispute cannot be governed by section 24, and the question then arises as to whether clause (1) or clause (2) of section 25 is applicable to the case. The answer to this question is attended with difficulties of varying degree. On the one hand clause (1) of section 25 does not in express terms prescribe the rule of succession in the case of a widow “who succeeded to the holding under section 22 of the Agra Tenancy Act of 1901” and lays down the rule of succession of female tenants who “inherited an interest in a holding under section 24.” There is, therefore, great force in the contention that according to literal interpretation that clause cannot apply to the case of a widow who succeeded under the former Act and died after the passing of the present Act. On the other hand the application of clause (2) of section 25 to the case under consideration would lead to startling anomalous results and it is in view of such results that I have, not without some hesitation, come to the conclusion that the present case must be governed by clause (1) of section 25.

It is clear that in accordance with the former Act the succession of the widow to a holding was limited in point of time to her death or re-marriage and thereafter the other heirs of her husband were entitled to succeed. Under the former Act, therefore, the widow could not become a fresh stock of descent and her heirs could not succeed to the holding. Clause (2) of section 25 makes the female tenant contemplated by that clause a fresh stock of descent and the heirs enumerated in that clause are her heirs and not the heirs of her deceased husband. To hold that clause (2) applies to the case under consideration would, therefore, amount to enlarging in a large measure the rights that were conferred on the widow by the former Act, and there appears to be no justification in the present Act for such a course. There is nothing in the present Act to show that the rights acquired by a widow under section 22 of the former Act were in any way to be modified to her advantage and to the detriment of the other heirs of her husband.

Again, according to section 22 a widow could succeed to her husband's holding only if her husband left no male lineal descendant in the male line of descent. The first class of heirs provided by clause (2) of section 25 of the present Act is “her male lineal descendants in the male line if this clause is to apply to the case of a widow who succeeded under the former Act her male lineal descendants referred to in the clause must necessarily be the offspring by her second marriage. Further, the second heir mentioned in clause (2) is the husband, who must necessarily be the second husband of the widow. To apply clause (2) would therefore lead to this result that the descendants of the widow by her second husband and also her second husband would have a right to succeed to the holding and the right of succession to her husband's heirs given by section 22 would be completely nullified. The intention to introduce such drastic changes in the right of the widow and in the rule of succession as provided for by the former Act cannot, in the absence of express provision to that effect, be imputed to the legislature. Moreover there is no reason to suppose that the legislature could have intended to enlarge the rights of the widows who succeeded under the former Act and survived that Act, when as a matter of fact the right given to widows succeeding under the present Act are similar in all respects to the rights given by the former Act to widows who died while that Act was in force.

There is yet another insurmountable difficulty in applying clause (2) of section 25. Both under the former and under the present Act re-marriage constitutes a forfeiture of the right inherited by a widow in a holding. Clause (2) can be applied only on the assumption that re-marriage in the case of a widow who succeeded under the former Act and died after the present Act came into force was not to constitute forfeiture and this, in my judgment, would be a large assumption to make and an assumption wholly unwarranted by the scheme and the provisions of the present Act.

It is however argued that in interpreting the provisions of the present Act as regards succession to holdings it is not permissible to inquire into the previous state of the law and that it is the duty of the court to interpret the provisions in accordance with the words used by the legislature. In support of this contention reliance is placed on the following observation made by Lord Herschell in Bank of England v. Vagliano: “I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law and not to start with inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute, critical examination of the prior decisions.”

The answer to the contention based on the above observations of Lord Herschell is two-fold. In the first place these observations had reference to a statute that was enacted for the first time with a view to codify a particular branch of the law. In the case before us we have to interpret the provisions of an Act which is a consolidating and amending Act as is apparent from the preamble to the present Tenancy Act. In order to appreciate the full significance and import of an amendment introduced by the present Act reference must of necessity be made to the provisions of the former Act.

Secondly, after making the observations quoted above Lord Herschell is reported to have observed that “I am of course far from asserting that resort may never he had to the previous state of the law for the purpose of aiding in the construction of the provisions of the Code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate.”

With a view to ascertain the rule of succession applicable to a holding left by a widow who succeeded under the former Act one has necessarily to inquire into the rights of that widow and this can be done only by reference to the former Act, and it would not be proper to answer the question referred to at the inception of this judgment without considering the provisions of section 22 of the former Act.

All the anomalies and absurdities attendant on the application of clause (2) of section 25 are avoided if clause (1) of that section is applied to the case under consideration.

The question however remains whether without departing from the well recognized rules governing the costruction of statutes it can be held that section 25(1) is applicable. In my judgment the answer to this question must be in the affirmative.

It is argued on behalf of the appellants that the natural meaning of the expression “tenant who had inherited an interest in a holding under section 24” in clause (1) is that the tenant must have inherited under the provisions of section 24 and not otherwise. This contention found favour with Sulaiman, C.J, and Bajpai, J., in Piare Lal v. Soney Lal and they held that the phrase “under section 24” is an adverbial phrase and modifies the word “inherited”, and clause (1) can, therefore, apply only to the case of a female who inherited under section 24. Too strict an adherence to grammatical construction may lend countenance to this view, but having regard to the anomalies and absurdities referred to above I feel justified in giving a go-by to such a construction. I consider that the words “an interest in a holding under section 24” mean an interest in a holding analogous to or similar to the interest prescribed by section 24. This interpretation may be open to the comment that it is a bit liberal or forced, but it is amply justified from the following passage contained in Maxwell on “Interpretation of Statutes”, 7th edition, page 198:—

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to… some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify and that the modifications thus made are mere corrections of careless language and really give the true meaning.”

I, therefore, hold that the case before us is governed by clause (1) of section 25 of the present Act.

I admit that I have arrived at this conclusion by a process of elimination and by putting a liberal construction on the words in section 24, but this appears to me to be justified, as otherwise we will have to attribute to the legislature an intention which it could never have had.

The view that I have taken is in consonance with the view taken by Allsop, J., in Joswant Singh v. Ganga Sahai and by the Board of Revenue in Aditya Narain Singh v. Munni Lal. But in these cases Allsop, J., and the Board of Revenue partly based their decision on section 6 of the U.P General Clauses Act, which inter alia provides that “Where any United Provinces Act repeals any previous enactment the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed”. Allsop, J., and the Board of Revenue observed that as in accordance with section 22 of Act II of 1901 the succession of a widow to her husband's holding was limited in point of time “till her death or re-marriage”, and that after her death or re-marriage the other heirs mentioned in section 22 were entitled to succeed to the holding, the mere fact of the repeal of Act II of 1901 by the present Tenancy Act could not adversely affect the right of the other heirs that had accrued to them under the former Act.

While I am in agreement with the decision arrived at by Allsop, J., and by the Board, I, with all respect, am unable to invoke section 6; U.P General Clauses Act, in support of the conclusion that the succession to the holding in the circumstances of the present case is governed by section 25(1) of the present Tenancy Act. Section 6 is confined in its operation to a right, privilege, obligation or liability acquired, accrued or incurred under any enactment that is repealed. Though under Act II of 1901, on succession, a widow's interest in the holding was terminable on her death or re-marriage, the other heirs mentioned in that section who could succeed on her death or re-marriage acquired no right in the holding so long as the widow was alive and remained unmarried. Further, till her death or re-marriage the widow remained a full fledged tenant and there was no outstanding reversion in favour of the heirs who could succeed to the holding on her death or re-marriage. The rights of the other heirs were mere contingent rights and section 6 of the General Clauses Act has no application to such rights. Further, though according to section 22 the interest inherited by the widow was terminable on her death or re-marriage it cannot be said that by succeeding to the holding she “incurred any “liability” under the former Act. Neither death nor re-marriage is a liability though both, because of the provisions of section 22, had the effect of terminating the interest of the widow in the holding.

For the reasons given above I agree with the conclusion arrived at by my learned brother Bennet, J., though on grounds other than those assigned by him.

Collister, J.:— In my opinion succession to this tenancy is governed by section 25(1) of Act III of 1926.

Sita Ram, the original tenant, died in 1906 or 1907. If Mst. Bhagni also had died before Act III of 1926 came into force, or if the last named Act had not been passed at all, the holding would have devolved upon Sarju defendant under the provisions of section 22 of Act II of 1901, inasmuch as he is a collateral who had shared in cultivation with Sita Ram and was thus an heir under sub-section (e) of section 22. Similarly, if Sita Ram had died after Act No. III of 1926 was passed, the defendant would have had a right of succession to the holding on the death of Mst. Bhagni under section 25(1) of that Act, which provides that when a female occupancy tenant, who has inherited an interest in a holding under section 24, dies, the heir shall be ascertained in accordance with section 24. I am wholly unable to agree with the contention of learned counsel for the plaintiffs appellants that it was the intention of the legislature to alter the rule of succession in the solitary case where, as here, the original tenant died before the Act of 1926 came into force and his widow died after that Act.

Having regard to the provisions of section 6 of the General Clauses Act, I am of opinion that the liability of forfeiture which the Act of 1901 imposed on the widow in the event of her death or re-marriage remains unchanged. If this position were not accepted, the result would be that in the case of a woman who had become a widow before 1926 and who remarried after 1926 the tenancy would, after her death, pass away altogether from the family of the original tenant and would go to a stranger, probably from another village and perhaps from a distant place, and there would thus be a fresh stock of descent. I cannot accept that in respect to this particular category of females the legislature contemplated any such violent alteration of the law as laid down in section 22 of Act II of 1901 and in section 24 of Act III of 1926. In the circumstances I can find no ground for holding that any “different intention” appears in the Act of 1926; on the contrary I think that, in the light of the rules of devolution as laid down in the two successive Acts, the inevitable conclusion is that the intention was precisely the same. It seems to me that when Mst. Bhagni succeeded to the holding, she incurred a liability. The liability was that on her re-marriage she would lose the tenancy and on her death it would go to her husband's relations. The liability attached to her succession to the property. If she remarried, the liability would automatically disappear, because she would have no right left in the holding.

Since, then, Mst. Bhagni, in my view, continued to have a limited interest in the holding even after 1926, it seems to me that ex hypothesi section 25(2) of Act III of 1926 cannot govern the succession after her death. This sub-section provides that the interest of a female occupancy tenant other than one subject to the provisions of sub-section (1) shall devolve upon her death (a) on her male lineal descendants in the male line, (b) failing that, on her husband, and (c) if there are no such heirs as above mentioned, on the daughter's son, provided that he was sharing in the cultivation of the holding at the time of the tenant's death. This obviously seems to contemplate a female who holds a tenancy in her own right and who has or may have a husband and sons alive. It can only apply to a female who succeeded to her deceased husband's holding before 1926 if, as contended by learned counsel for the plaintiffs—a contention which, as I have already said, I am unable to accept— the liability of forfeiture upon re-marriage which was imposed under section 22 of the Act of 1901 was removed when the Act of 1926 was passed.

I am clearly of opinion that in the Act of 1926 the legislature intended to distinguish between the position of a female who had inherited from a male tenant and one who had a tenancy in her own right. sub-section (1) of section 25 relates to the former class, and sub-section (2) to the latter. I agree with the view expressed by Bennet, J., in Piare Lal v. Soney Lal that the words in section 25(1) “who has inherited an interest under section 24” must be deemed to mean “who has inherited an interest which can be held under section 24”. The section is perhaps not very happily worded, and it would have been more satisfactory if it had read “who has inherited an interest in a holding under section 24 or under any previous Act”, but I cannot accept the proposition that it was the intention of the legislature that a female who had become a widow before 1926 and was still alive after 1926 should have a different status from a widow who died before 1926 or from a female who had become a widow after 1926. In both Acts it is provided that a widow shall inherit till her death or re-marriage; and I have no doubt whatsoever in my own mind that it was the intention of the legislature that the holding should be retained within the family of the original tenant. In Jaswant Singh…Defendant v. Ganga Sahai…Plaintiff . Allsop, J., observed: “I have no doubt at all that it was the intention of the legislature to divide female tenants into two classes, namely the class which inherited from male tenants, and the class which were tenants in their own right. I cannot believe that it was the intention of the legislature, without a very clear statement to that effect, to change the whole status of every woman who was holding at the date when the Act was passed as an heir to a male tenant.” With those observations I am in complete agreement.

Then there is another way of looking at the matter. It is argued that the word “dies” in section 24 of Act III of 1926 envisages a death which occurs after 1926 and can have no reference to a death which took place while the Act of 1901 was in force. In the view which I have already expressed I am unable to attach this significance to the word. Such an interpretation would, in my opinion, violate the intention of the legislature in respect to devolution of tenancies. A more or less similar point fell to be considered in Shrimati Shakuntla Devi v. Kaushalya Devi and by a Full Bench of this Court in Rajpali Kunwar v. Surju Rai. In considering the meaning of the expression “dying intestate” in the preamble to the Hindu Law of Inheritance (Amendment) Act II of 1929 it was held that the word “dying” is a mere description of the status of the deceased and has no reference and is not intended to have any reference to the time of the death of the Hindu male; the expression merely means “in the case of intestacy of a Hindu male”. I am unable to differentiate between a person “dying” and a person “who dies”. In my opinion the analogy may well apply to the word “dies” in section 24 of Act III of 1926.

In my opinion the only rational conclusion which can be arrived at is that the devolution of Sita Ram's tenancy after the death of Mst. Bhagni is governed by section 25(1) of Act III of 1926 and that, therefore, since there are no heirs of her husband such as are described in classes III to VI of section 24, the defendant, being the nearest collateral male relative and having shared in the cultivation of the holding at the time of Sita Ram's death, is entitled to succeed.

Bajpai, J.:— The facts of this case are stated in the judgment of the other learned Judges constituting the Full Bench, and the point of law that arises is whether the succession to the tenancy is governed by section 25(1) or section 25(2) of the Agra Tenancy Act III of 1926.

I have stated at length in the case of Piare Lal v. Soney Lal, at pages 441 to 457, my reasons for holding that succession to the tenancy under the circumstances of the present case would be governed by section 25(2) of the Act, and although I have had the advantage of reading the other judgments, I regret to say that I see no ground for changing my opinion.

I would, therefore, allow this appeal and decree the plaintiffs' suit for possession.

Ganga Nath, J.:— This is a plaintiffs' appeal and arises out of a suit brought by them against the defendant for their ejectment from the holding described in the plaint on the allegation that they are trespassers. The plaintiffs are the zamindars and the land in dispute is the occupancy holding of one Sita Ram. Sita Ram died in 1906 or 1907 long before the present Agra Tenancy Act of 1926 (Act III of 1926) was passed, without leaving a male issue. He was succeeded by his widow Mst. Bhagni. She remained in possession of the holding till she died on the 28th of July, 1931. Sarju the father of the defendant No. 1 took possession of the holding, claiming as an heir of Sita Ram. He died during the pendency of the suit and his son Nanda was brought on the record in his place. The plaintiffs' case was that on the death of Mst. Bhagni in 1931 the occupancy tenancy lapsed because succession was governed by section 25, clause (2) of the Agra Tenancy Act and no such heir as is therein mentioned was in existence. The defendant's case on the other hand was that Mst. Bhagni had succeeded to the tenancy as widow of Sita Ram the occupancy tenant, and that on her death he (defendant), who was the nearest collateral of her husband and was joint in cultivation with him, was entitled to succeed to it. An issue was remitted by the civil court to the revenue court for a finding as to whether Sarju was a tenant or a trespasser. The learned Assistant Collector found that Sarju was the nearest collateral of Sita Ram with whom he had shared in the cultivation of the holding and that Sarju was a tenant. On this finding the learned Munsif dismissed the plaintiffs' suit. The plaintiffs went up in appeal and the learned Additional Civil Judge upheld the finding of the learned Assistant Collector and the decision of the learned Munsif based thereon.

The plaintiffs have come here in second appeal. The question for determination is whether the case falls under section 25, clause (1) or clause (2) of the Agra Tenancy Act. Section 24 of the present Agra Tenancy Act (Act III of 1926) deals with the succession of male tenants and lays down an order of succession. Section 25 deals with the succession of female tenants. A distinction has been made in section 25 between a female ex-proprietary, occupancy or non-occupancy tenant who has inherited an interest in a holding from a male tenant and a female ex-proprietary, occupancy or non-occupancy tenant who holds the holding in her own right. Clause (1) deals with the succession of the former and clause (2) with that of the latter. Section 25(1) lays down: “When a female ex-proprietary, occupancy or non-occupancy tenant who has inherited an interest in a holding under section 24, or the female heir of a statutory tenant dies or surrenders or abandons such interest, or, in the case of a widow of class II in section 24, re-marries, such interest shall, notwithstanding anything contained in section 35, devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with section 24.”

The whole controversy centres round the words “under section 24” and their interpretation. Section 24 as stated above deals with the succession of male tenants and lays down an order in which the succession is to take place. In my opinion the words “under section 24” in section 25, clause (I) mean “from a male tenant”. In order to attract the application of section 24 the only condition that is necessary is that the tenancy should have belonged to a male tenant. Then comes an order of succession laid down in section 24 in accordance with which the holding shall devolve. In the old Tenancy Act also the distinction between a female tenant in her own right and one with only a life interest who had succeeded to the holding as the heir of the last male tenant did exist, though it was not very clear and distinct. section 22 of the old Tenancy Act (Act II of 1901) dealt with succession to tenancies. There was no separate provision in the old Act dealing with succession to tenancies of female tenants. The rule laid down in section 22 was made applicable to the succession to tenancies of female tenants also. In the present Act as stated above, there are separate provisions dealing with succession to tenancies which belong to male tenants and those which belong to female tenants. The rules relating to the latter are again divided between the rules governing succession to the tenancies to which female tenants succeed from male tenants and those regulating succession to tenancies which they acquire or hold in their own right. Section 25, clause (1) deals with the tenancies to which the female tenants succeed from male tenants, and clause (2) with the tenancies which the female tenants acquire or hold in their own right. In the former case the tenancy goes back to the heirs of the male tenant on the death of the female tenant or surrender or abandonment by her of her interest in the holding, or in the case of a widow of class II in section 24 on her re-marriage, but in the latter case it goes to the heirs of the female tenant only on her death. Section 24, as stated above, deals with succession to tenancies of male tenants and the successors include females, i.e, widow and mother. The words “female ex-proprietary, occupancy or non-occupancy tenant who has inherited an interest in a holding under section 24” in section 25, clause (1) mean a female tenant who has inherited her interest in a holding from a male tenant.

The distinction between the two classes of female tenants referred to above existed even before the passing of the present Tenancy Act (Act III of 1926), and the legislature made it clear in the present Act. There was no reason to change the status of the female tenants who had succeeded to tenancies from male tenants before the present Act was passed when the legislature maintained and made it clear in the present Act (Act III of 1926). That the legislature never contemplated nor made any change in the status of the female tenants who had succeeded to tenancies from male tenants before the present Act III of 1926 was passed is clear from the following note on page 15 of the “Outline of the changes introduced by the Agra Tenancy Act III of 1926” describing the changes introduced:

“The Act of 1926 adds the father and the widowed mother to the list of heirs of a male tenant. Section 22 of the Act of 1901 was silent about female tenants. Section 25 of the Act of 1926 makes the law clear. It brings out in full relief the distinction which must be made between a female tenant in her own right and one with only a life interest who has succeeded to the holding as the heir of the last male tenant. In the former case, sub-sections (2) and (3) of the section prescribed the order of succession. In the latter case, sub-section (1), read with section 108, prevents the female tenant with only a life interest from defeating the interest of the reversioner by surrendering or abandoning the holding. If she surrenders or abandons it, the nearest surviving heir of the last male tenant succeeds to the holding. In like manner, he succeeds on the death of the female tenant or (where the female tenant was the widow of the last male tenant) on her re-marriage.”

The expression “under section 24” has not been happily worded but inasmuch as section 24 deals with succession of male tenants the words “under section 24” give a clue to the meaning and intention of the legislature. They are a mere description of the class to which the tenant belongs. I am, therefore, of the opinion that section 25, clause (1) covers and deals with the case of a female tenant who succeeded to a tenancy from a male tenant before the present Act No. III of 1926 came into force.

The defendant is the nearest surviving heir of the last male tenant in accordance with section 24 as has been found by the lower courts. I would, therefore, dismiss the appeal.

By the Court:— In accordance with the opinion of the majority of the Judges the second appeal of the plaintiffs is dismissed with costs.