Henry Richards, C.J. and Karamat Husain and Chamier, JJ.
1. The facts which must be assumed for the purposes of this appeal are very clearly set forth in the order of reference of the learned Judges. The short point for our decision is whether or not a person who was recorded in the manner stated must be deemed to have all the estate in the fixed rate tenancy vested in him or her alone, irrespective of the rights of all other persons, who under the ordinary law would be entitled to the tenancy, but for the fact that such a person is so recorded. The defendants, who are the transferees of Musammat Rupao, rely on the provisions of Section 9 of the Agra Tenancy Act. That section is as follows: 'Every entry at the last revision of records before the commencement of this Act recording a person as a permanent tenure-holder or a fixed rate tenant, or otherwise shall, in the absence of a judicial decision to the contrary, in proceedings instituted before the commencement of this Act, be conclusive proof that such person is a permanent tenure-holder or a fixed rate tenant, or not, as the case may be.'
2. The section is certainly unfortunately worded, and prima facie the language of it is in favour of the defendants' contention viz., that Musammat Rupao must be deemed, having regard to the words of the Act, to have had the entire estate in the fixed rate tenancy, and that their title as her transferees is complete. This view met with favour by the learned Judges who decided the case of Mulai Singh v. Rajwant Singh Weekly Notes 1906 p. 68. They say: 'In our opinion the language of the section is clear and imperative.'
3. Prior to the passing of this Act there had been somewhat similar provisions in Act X of 1859, (Sections 3, 4 and 7) and Act XII of 1881 (Sections 4, 5 and 6). Under those Acts it was the duty of the Court to inquire as to the nature of a tenancy which had been held at fixed rates for certain periods, and certain presumptions in favour of the tenants were provided. Those sections were all intended to meet the case of disputes between the zamindar and his tenant as to the nature of the tenancy. Before the passing of the Agra Tenancy Act of 1901, at the time of revision of records, inquiries were held as to the nature of these tenancies, but these again were inquiries between the zamindar and the tenant and did not touch upon the title to the tenancy itself. It is admitted that fixed rate tenancies, unlike occupancy tenancies, are heritable and transferable. Section 20 expressly so provides. Fixed rate tenancies devolve on the death of the fixed-rate tenant according to the ordinary law. If the contention of the defendants be sound, namely, that by virtue of Section 9 the entry is conclusive not only between landlord and tenant but also between all persons claiming the tenancy, then it follows that if the managing member of a joint and undivided family was recorded as the fixed rate tenant, the tenancy on his death would not devolve upon the surviving members of the joint family but would go to the heirs of the member of the family (who happened to be recorded) as if the family were separate. Again, if the widow or a daughter succeeded to a fixed rate tenancy on the death of a fixed rate tenant who was a Hindu, the tenancy on the death of the widow or daughter would go to the heir of the widow or daughter and not to the heirs of the last male holder. It seems to us quite clear that this could not have been intended. A learned Judge of this Court in Second Appeal No. 26 of 1906, held that Section 9 did not apply to questions as to the title to the fixed rate tenancy. The same view was taken by the Board of Revenue in Gajadhar Dasaundhi v. Gokul Dasaundhi Select Decisions No. 2 of 1909. In our opinion the decision of the court below was not correct. The entry mentioned in Section 9 is conclusive proof only as to the nature of the tenancy. The case, however, was decided on the preliminary point, and the general merits of the case were not gone into by the lower appellate court. We accordingly allow the appeal, set aside the decree of the lower appellate court and remand the case with directions that the same may be re admitted, and the learned Judge do proceed to hear and determine the same according to law. Costs in this Court will be costs in the cause.