Deoki Rai v. Mt. Parbati

1. This appeal arises out of a suit brought by the plaintiff to recover possession of certain property. The property was held under a perpetual lease, dated 1st August 1886, under which the lessees were entitled to hold the property so long as they paid the rent reserved by the lease. The property in question became vested in one Bechi Rai. Bechi Rai had a daughter called Sajni and the plaintiff is the son of Sajni. Bechu Rai died whilst the Rent Act of 1881 was still in force. Sajni died after the Tenancy Act of 1901 had come into operation. The Court of first instance held that the plaintiff was entitled to recover possession. The lower appellate Court reversed this decision holding that as Sajni died after the Act of 1901 was passed the succession must be regulated according to the provisions of S. 22 of that Act and that the plaintiff, being the daughter's son of Bechu, could of succeed as he did not share with him in the cultivation of the holding.

2. We think that the decision of the Court of first instance was correct and ought to be restored. If Sajni is to be regarded as the full tenant of the holding, then Deoki, as her male lineal descendant, is entitled to succeed. If we cannot regard Sajni as the full tenant, then we must go back to the death of Bechu to see how the property would devolve. If the property is of such a nature as to be regulated by S. 9 of the Act of 1881, them the plaintiff is entitled to succeed because the property devolved as if it were land. Again, if the property is not governed by S. 9 of the Act of 1881, then it is a class of property for which no special provision has been; made by any Act of the legislature and we must fall back on the Hindu Law, to see how the succession would run. As the daughter's son of Bechu, the plaintiff according to the Hindu law would be entitled. It therefore appears that from whatever point of view we look ab the case the plaintiff's bible is made out. The respondent raised the question of limitation but inasmuch as Sajni died within twelve years of the institution of the suit the claim is clearly within time. We accordingly allow the appeal, aside the decree of the lower appellate Court and restore the decree of the Court of first instance with costs in all Courts, including in this Court lees on the higher scale.

V.B/R.K

3. Appeal allowed.