1 On a difference of opinion between Mr. Justice Mudholkar and Mr. Justice Tambe, the following two questions have been referred to me for decision:
(i) Whether by virtue of the amendment of Section 11 of the Central Provinces Tenancy Act, 1920 (I of 1920) by the Central Provinces Act XI of 1940, the son of an occupancy tenant acquires by birth a right to challenge an alienation of an occupancy holding held by the tenant to a stranger; and
(ii) whether allowing the son to challenge the alienation amounts to giving retrospective effect to the amending Act.
2. The circumstances under which the questions were referred may now be stated. The four fields, the subject-matter of the suit, were originally the property of one Jagu. On his death they were held by his son Kodu who transferred the fields by a sale deed dated March 2, 1948, to the defendant for an ostensible consideration of Rs. 3,000. The plaintiff, a minor, is the son of Kodu, and he sued the defendant through his guardian mother Mirabai, claiming a permanent injunction restraining the defendant from disturbing the plaintiff's possession over the suit lands. Alternatively, he claimed a decree for possession in the event of it being found that he was not in possession of the lands at the date of the suit. The plaintiff challenged the sale deed as brought about by misrepresentation, inducement and undue influence practised by the defendant on his father Kodu who was a man of weak intellect. With this part of the plaintiff's claim I am not here concerned. Suffice it to say that it was found that the sale was due to 'material misrepresentation and inducement.'
3. The plaintiff claimed title in himself because according to him the holdings were joint family property in the hands of Kodu since they came to him from his father Jagu.
4. The trial Court found that the plaintiff was a member of the joint Hindu family consisting of himself, his mother Mirabai, father Kodu, and paternal grandmother Mst. Waji, wife of Jagu. Since it held that the sale was induced by misrepresentation and inducement, it set aside the sale and decreed the plaintiff's claim. An objection raised to the plaintiff's claim, that he had no right to claim the suit fields was negatived. The trial Court held that the amendment of the Central Provinces Tenancy Act by Act XI of 1940 gave the plaintiff, who was born after that Act came into force, a right to take by survivorship.
5. This was the substantial question also raised before the Division Bench. It was urged that the holdings were not joint family property in the hands of Kodu but partook of peculiar rights under tenancy law, which right having once vested in Kodu, the plaintiff could not acquire any interest in them by mere birth so as to entitle him to challenge the sale thereof by his father or to get possession of them. The amending Act could not affect those vested rights in the absence of express provision justifying its retrospective application. The reply to that contention was that the plaintiff always had a right of survivorship but under the earlier tenancy law it was not recognized. After the amendment of Section 11 of the Central Provinces Tenancy Act of 1920 by Act XI of 1940, the plaintiff merely got back his right of survivorship. The statute did not affect any vested rights but on the contrary it restored vested rights under Hindu Law, which had been taken away by tenancy Acts before amendment.
6. Mr. Justice Mudholkar took the view that the right of an occupancy tenant is an estate created by contract and statute, to which no considerations of the Hindu law of survivorship applied, and, therefore, the property in the hands of Kodu was an estate unaffected by any claim on the ground of survivorship or any claim founded upon the mere fact of birth of a son to him. If that be so, the subsequent alteration of the law by the amendment of Section 11 of the Tenancy Act by Act XI of 1940 could not affect the rights already vested in Kodu, unless the Act was expressly made retrospective. He invoked the principle that a person who has succeeded to an estate cannot be deprived of it by any provision of law enacted subsequent to its vesting. For this view be relied on the remarks of their Lordships of the Privy Council in Mohammad Abdussamad v. Kurban Husain (1903) 31 I.A. 30 and on the decisions of the then Court of the Judicial Comissioner, Central Provinces, in Ghanya v. Ukund Rao (1907) 4 N.L.R. 9, Kalu v. Mst. Birajbai (1933) 29 N.L.R. 323 and the decision of the Nagpur High Court in Tularam v. Tejilal (1942) Nag. 205. The contrary view taken in Kamalajabai v. Motiram  Nag. 653 by the late Mr. Justice Rao was not acceptable to him for reasons to which I. shall presently advert.
7. The view of the matter which commended itself to Mr. Justice Tambe was that in the instant case there was no question of the retrospective operation of the amendment of Section 11, made by Act XI of 1940, because the occupancy holdings in the hands of Kodu were joint family property in his hands under the normal rule of Hindu Law and that the son had, hitherto no right to claim by survivorship only because of the express provisions of the various statutes, the Central Provinces Tenancy Acts of 1883, 1898 and 1920, taking away or limiting the normal rights under Hindu Law. He pointed out that it was only by virtue of those express provisions that the Hindu Law of survivorship was till then, so to say, held in abeyance, and when upon the amendment made by the Act of 1940 the right of survivorship was recognized, all that happened was that the normal rights under the Hindu Law which were always there but which till then were in abeyance because of the express provisions of a statute were merely resuscitated. Therefore, there was no question of any vested right being created by the amending Act which must be given effect to from the date of its enactment in every case arising after that date.
8. Section 11 of the Central Provinces Tenancy Act as it stood before amendment by Act XI of 1940, was as follows:
The interest of an occupancy tenant shall on his death pass by inheritance in accordance with his personal law:
(i) no person shall take any interest during the lifetime of any ancestor of such person in the male line of descent from the tenant;
(ii) no collateral shall be entitled to inherit unless he is a male in a male line of ascent or descent and within seven degrees of kindred from the tenant.
9. The changes that were brought about by the amendment of 1940 were that in the opening clause after the words 'by inheritance' were added the words 'or survivorship', so that the clause read as follows:
The interest of an occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law.
The two provisos were by the same amendment deleted.
10. The foundation upon which the opinion of Mudholkar J. is based is the remark of Stanyon A.J.C. in Ghanya v. Ukund Rao that the interest of an occupancy tenant
is an estate created by contract and statute and its devolution is governed, by the same statute.... The Tenancy Act does not recognize such things at succession by right of survivorship, the vesting of a son's interest by birth, and so on.
This is the view subsequently reiterated in Shanker Rao v. Daulat (1931) 27 N.L.R. 371 (a case relied upon by counsel for the appellant before me) and in Kalu v. Mst Birajbai. From this premise it is argued that the occupancy tenancy being a creature of statute and not recognizing succession by a right of survivorship or the vesting of a son's interest by birth, it was a right of a special kind conferred upon a Hindu tenant only by the Tenancy Act. Therefore, the subsequent amendment, of the Act in 1940, giving a right of survivorship, was an amendment which affected vested rights and so could not affect them retrospectively, in the absence of express words giving the statute retrospective operation.
11. Now, the proposition that land held by an occupancy tenant is a creature of contract and statute and its devolution is governed by the same statute, or the proposition that the Tenancy Act does not recognize survivorship of the vesting1 of a son's interest by birth, doss not necessarily involve the further proposition that land held in occupancy right at no time was governed by Hindu Law or was not subject to the incidence of survivorship prior to the coming into force of tenancy legislation in the Central Provinces. Indeed, all that the proposition of Stanyon A.J.C. in Ghanya v. Ukund Rao intended to lay down was that normally the rights of an occupany tenant would be governed by his personal law, that is to say, either Hindu or Mahomedan Law as the ease may be, save and except that that personal law was not to apply by virtue of a provision of statute such as the Tenancy Act. In other words, an occupancy holding is no doubt a creature of contract and statute but it is a creature of contract and statute as engrafted upon the normal incidents of property which it had under the erstwhile personal law of the parties. That this can be the only meaning of the statement of Stanyon A.J.C. in Ghanya v. Ukund Rao is clear from the remarks made by that learned Judge in the subsequent passage in that case (p. 18):.In the case of Hindus the Courts, in deaing with agricultural holdings, will follow the Hindu Law of inheritance so far as it may be consistent with the principles of the Tenancy Act and no further : and it seems to me that the peculiar feature in the former, under which a son gets by birth a vested interest in the property of his father which controls the father's power over such property, has no place in the latter.
In Shankar Rao v. Daulat Macnair J.C. approved of the remark of Stanyon A.J.C. but upon the ground that it was only because of the provisions of an express statute that the rules of survivorship were excluded by necessary implication, and he quoted with approval Vithu v. Mt. Mendri. (1909) 5 N.L.R. 172 In Kalu v. Mst. Birajbai (the case relied upon by Mudholkar J.) also Staples A.J.C. came to the conclusion that the dictum of Stanyon A.J.C. in Ghanya v. Ukund Rao was correct for the same reason. After referring to Shanker Rao v. Daulat he observed (p. 326):.That case is not on all fours with the present case, but it may be made use of by analogy to show that an express provision of the Tenancy Act will override the usual rules of Hindu Law:
(The italics are mine)
12. I have quoted these passages only in order to emphasise that, in my opinion, though an occupancy holding was under the Tenancy Acts a creature of contract and statute, it was so because though originally governed by the usual rules of Hindu Law which included the right to take by survivorship and rights by birth, those rights were curtailed, or one would rather say, kept in abeyance, because of express provisions of the various Tenancy Acts. It is this view of the nature of an occupancy holding which when once grasped gives, in my opinion, an effective clue to interpreting the provisions of the amending Act XI of 1940, to which I shall presently refer.
13. Even if we consider the previous history of these tenures in the Central Provinces and the history of the legislation governing them, we reach the same conclusion. Prior to the advent of British power in the Central Provinces, these holdings were all governed by the personal laws of the parties i.e. Hindu or Mohamedan Law, to which so far as the land held by a Hindu holder was concerned, the right of survivorship and the right to take by birth were applicable. Upon these pre-existing rights was engrafted the notion of the right of occupancy as it is at present understood, which no doubt is essentially a creature of law. How this happened is best stated in the words of an eminent jurist Sir Henry Sumner Maine in his book Village Communities, 5th ed., p. 184:
But they gave effect to their doubts of the correctness of these analogies by creating between land-owner and tenant-at-will an intermediate class of protected, or, as they are called in the East, 'occupancy' tenants. When, under the Government dispossessed by the British, any cultivator was shown to have held his land by himself or his ancestors for a certain space of time, he was declared to be entitled to a qualified protection against eviction and rack-rent. By a recent legislative enactment this principle has been generalised, and any cultivator who, even under the British Government, has been undisturbed by his landlord for the like period, is invested, in some parts of India, with the same protection. But, at first the rule, of which the origin is uncertain, was probably intended as a rough way of determining a class which in some sense or other was included within the village community. The exact period of occupation selected was twelve years; the longest time during which it seems to have been thought safe to carry back into native society an enquiry upon legal evidence into a question of fact.
14. Under the statutory legislation ushered in with the advent of British power it was found necessary on the one hand to protect the actual tiller of the soil against any precariousness of his tenancy right and against rack-renting by landlords, and on the other hand, to aid the fiscal policy of the State and ensure a settled revenue income. Therefore, on the one hand it was accepted as a principle that the rule of succession as governed by the personal law of the holder should be disturbed as little as possible, and only to the extent to which it was necessary to ensure the objects to be achieved, viz. to prevent family dispute and partitions affecting' tenancy holdings.
15. That this was the principle behind at least the tenancy legislation of 1920, is also clear from the Statement of Objects and Reasons, given for the enactment of Article 69 in the Tenancy Bill of 1919, which corresponds to Section 11 of the Central Provinces Tenancy Act. It was 'to make the law of devolution conform to the actual custom of the people' .The Select Committee extended the line of succession with the remarks
according to the general custom of the Province the right to inherit an occupancy holding is governed by the personal law of the tenant. We have accordingly extended the line of succession as entered in the Bill.
The reason why the two provisos were added to Section 20 was given in the speech of the Honourable R.B.N.K. Kelkar as follows:
Ordinarily inheritance will devolve according to the personal law of the tenant, but in many respects the personal law ought to be modified in the manner laid down by me in the two provisions which I propose to attach to the clause.... It is intended that the devolution of occupancy holdings should be free from the complications of the law relating to survivorship. It is therefore provided....
16. From this precedent history it is clear that the occupancy tenure was not a creature of contract and statute in the sense that it was some form of property coming into existence for the first time under the tenancy legislation. It was property which was always governed and controlled by the personal law of the parties which only came to be modified in parts by statutory provisions of the tenancy legislation and thus gave rise to what Stanyon A.J.C. called an estate created by contract and statute.
17. Upon this view the nature of the subsequent amendment made in Section 11 by Act XI of 1940 becomes clear. Before the amendment the right of survivorship and the right to take by birth, by which all holdings were originally governed, were not recognized and so kept in abeyance under the Tenancy Acts of 1883, 1898 and 1920. By the amending Act of 1940 the original rights possessed by the holders of these lands were restored to them. The amending statute thus was not a piece of legislation giving or creating any new rights but a piece of legislation which restored to the former owners the right which they always possessed before the tenancy laws came into force. That, in my opinion, was the only effect of Act XI of 1940, viewed in its correct perspective.
18. It follows from this discussion that there is no question here of the retrospective operation of Act XI of 1940. Such a question can only arise where new rights are given by a statute and the question is whether it affects previously vested rights. Mudholkar J. relied upon two cases for holding that the Act was not retrospective. They are Tularam v. Tejilal and Mohammad Aldussamad v. Kurban Husain. In Tularam v. Tejilal the tenant of an occupancy field had died in 1915 or 1916 and his two widows in 1924 and 1935. The defendants in the suit claimed as the heirs of the last tenant, but it was held that they were not within seven degrees of kindred from the tenant as provided in proviso (ii) to the unamended Section 11 of the Central Provinces Tenancy Act. It was, therefore, held that the plaintiff as the landlord was entitled to re-enter the field for want of any tenants. In appeal it was argued before Niyogi J. that the defendants were entitled to come in as heirs under the amendment of the Act which came into force on May 1, 1941, and that he should adjudicate on the controversy in the light of Section 11 as amended. Niyogi J. repelled the contention because of the fact that the tenancy had ceased to exist when the last surviving widow of the deceased tenant died and the landlord had already entered into possession in pursuance of his right of re-entry on failure of heirs. There was no question there involved of the right of survivorship so far as I can see, and in any event the tenancy itself had, upon the findings, ceased to exist and, therefore, the amending Act was held not to affect the rights created in the malguzar by the cesser of the tenancy. That was a question altogether different from the one before us.
19. In Mohammad Abdussamad v. Kurban Hussain the suit was to recover certain village in the possession of Mst. Imtiaz Fatima who died on December 19, 1894, by persons claiming under the Mohomedan Law of inheritance as her brother and sister. The defendants claimed under the Oudh Estates Act of 1869, and it was held that that Act could not affect the title which had vested in Imtiaz Fatima who had succeeded to the villages in 1885. In that case the Oudh Estates Act of 1869 created new rights and affected the property rights as vested in Imtiaz Fatima in 1869, and since there was nothing in the Act to indicate that it had retrospective operation it was held to be inapplicable. There was no question in that ease of a pre-existing right being first held in abeyance by a statute and being revived by a subsequent legislation which, as I have shown, is the case here.
20. The view which I have taken above is substantially the view taken in Kamalajabai v. Motiram wherein Rao J. held as follows (p. 655):
It is a well-settled doctrine of Hindu Law that the property which a man inherits from any of his three immediate paternal ancestors, namely his father, father's father and father's father's father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issues, and the doctrine of survivorship applies to it:... The undisputed fact of the case is that the holding was ancestral in the hands of Rama. Under the personal law applicable to the parties, Rama's power of alienation was subject to challenge by his sons who were coparceners with him. But so long as the first proviso to section 11 stood in the Act, it operated as a bar against the sons taking any interest during the lifetime of their father. By deletion of the proviso, that bar was removed. The bar interposed by the statute having been removed, the personal law must prevail. From the date of the deletion the sons were in a position to restrain an alienation by their father.
21. This view was not accepted by Mudholkar J. because according to him the earlier decisions of the then Court of the Judicial Commissioner, viz. Ghanya v. Ukund Rao, Shankar Rao v. Daulat and Kalu v. Mst. Birajbai, were not considered in that decision. I have already shown in paras. 10 to 12 above that the dictum evolved in these cases that the occupancy tenure is a creature of contract and statute means only that it is a creature of contract and statute as engrafted upon the normal incidents of property under Hindu Law by which it was always governed and was not some peculiar tenure coming into being for the first time. Therefore, these decisions do not affect the view I have taken or the decision of Rao J. quoted above.
22. Mudholkar J. also referred to the decision in Sunderabai v. Kashibai First appeal No. 48 of 1942.wherein, he observed, Rao J. sitting with Hidayatullah J. took the view that an estate of an occupancy tenant is created by contract and statute and that its devolution is governed by the same statute. That that is so is clear from the discussion in paras. 36 to 41 of the judgment of the Division Bench in that case, but, in my opinion, nothing turns upon that principle for the reasons stated in paras. 10 to 17 above.
23. A Division Bench of the Nagpur High Court consisting of Mudholkar and Deo JJ. had already held as early as September 8, 1954 in Chandansingh v. Aghori Second appeal No. 635 of 1947 that Kamalajabai v. Motiram was correctly decided. In that ease they not only approved of it but were in agreement with the passage I have quoted in para. 20 above.
24. In Chandansingh v. Aghori a contention was also raised that the use of the word 'devolve' excluded inheritance by survivorship and their Lordships repelled the contention, but what they further added is significant for the purposes of the point before us. They stated:
For the purposes of this case we would however assume that the word 'devolve' has a restricted meaning as held in Ghanya's case and that Dasram did not acquire an interest by birth in the property in suit. That fact, however, is not material for determining the nature of the right acquired by the plaintiff. As we have already pointed out the property in suit was an ancestral property of the plaintiff and Dasram. Under the Hindu Law therefore he acquired an interest therein from the moment of his birth. The fact that Dasram had no such interest is wholly immaterial. What is material is to determine the nature of the property of Dasram. If it were his self-acquired property, then the plaintiff could acquire no interest therein by birth. If, however, it was his ancestral property then the plaintiff automatically acquired interest therein by birth. Had he been born while the Act of 1920 was in force, he could not have, because of the express prohibitions contained therein, acquired interest by birth in that property. The restrictions placed in Section 11 of the Act of 1920 have now been removed, the ordinary Hindu Law applied and the plaintiff must be held to have taken interest in the property by birth.
This earlier view of his was not brought to the notice of Mudholkar J. in the arguments before him in the present case. I am in respectful agreement with this statement of the law which is also in substantial accord with the view taken by me above and with the opinion of Tambe J.
25. For the reasons, I answer the first question referred to me in the affirmative and the second question in the negative. The papers be returned to the Division Bench.
26. Per Mudholkar and Tambe JJ. In view of the decision of the third Judge, to whom the points on which we were not agreeing were referred, the appeal is dismissed with costs.