1. On 13-4-1976 we heard this reference and delivered our opinion answering the question referred in the affirmative but reserved pronouncing the reasons which we do now.
2. Finding that there was some conflict of opinion on the question whether co-tenancy rights could be acquired in an ex-proprietary holding in any manner other than laid down in the proviso to Section 33 of the U. P. Tenancy Act, 1939, a learned single Judge referred the following question to a Division Bench:--
'Whether co-tenancy rights can in law be acquired in an ex-proprietary holding by estoppel or acquiescence?'
3. Hari Singh, Kundan Singh and Dular Singh were three real brothers. Hari Singh died in the year 1946. Dular Singh had predeceased him leaving a son Gaya Singh, Hari Singh was an ex-proprietary tenant of the holding. It is not disputed that under the U. P. Tenancy Act, 1939, Gaya Singh could not inherit the tenancy as his father Dular had predeceased Hari Singh. Kundan Singh and his sons were thus the only heirs. However, Gaya Singh's name was also mutated along with Kundan Singh and he always co-shared the tenancy, having paid rent to the Zamindar of his share. On the death of Kundan Singh the names of his sons were also mutated along with that of Gaya Singh. When the consolidation proceedings started a controversy arose between Gaya Singh and the sons of Kundan Singh, the latter claiming to be the sole tenure-holders to the exclusion of Gaya Singh on the ground that the holding being an ex-proprietary tenancy Gaya Singh could not legally acquire any co-tenancy rights as he was neither a co-tenant from the commencement of the tenancy nor could he become a co-tenant by succession nor he had been specifically recognized as such in writing by the land-holder. Reliance was placed on the proviso to Section 33 of the U. P. Tenancy Act. The Deputy Director of Consolidation affirming the view of the Settlement Officer (Consolidation) that co-tenancy rights could not be created by estoppel and acquiescence and G-aya Singh having no right to succeed to the holding of his uncle Hari Singh, directed his name to be expunged from the revenue records. Gaya Singh then came to this Court by way of a writ petition under Article 226 of the Constitution for quashing of the orders of the Consolidation Authorities. The learned single Judge before whom the writ petition came up for hearing finding that the decisions of this Court in the cases of Dudh Nath v. Smt. Dharrajja (1964 R D 324) (All) and Deo Naraln v. Aditya Prasad, 1971 All LJ 700 = (AIR 1971 All 415) favouring the case of Gaya Singh, being in conflict with the decision in the case of Irshad Ahmad v. Joint Director (1968 R D 129) (All), referred the abovementioned question. This is how the case came before us.
4. In Irshad Ahmad v. Joint Director of Consolidation (1968 R D 129) (supra) M. H. Beg, J. as he then was held that in view of the nature of ex-proprietary rights and the law relating to extinction of those rights, the proviso to Section 33 of the U. P. Tenancy Act, 1939 could not be so interpreted as to operate as a means of creation of co-tenency right in ex-proprietary tenancies since ex-proprietary tenancy rights do not arise by agreement or by recognition by the land-holder. It was urged on behalf of the respondents that ex-proprietary right being purely a creature of Statute and not of contract or agreement, it follows that co-tenancy right could not be created in ex-proprietary tenancy by contract or agreement, thus there will be no scope for applying the principles of estoppel and acquiescence for creating co-tenancy rights in ex-proprietary holdings. The cases of Deo Narain v. Aditya Prasad (AIR 1971 All 415) (supra), decided by K. N. Srivastava, J. and the case of Dudh Nath v. Smt. Dharrajja (1964 R D 324) (All) (supra), decided by Gangeshwar Prasad, J. were sought to be distinguished on the ground that they did not relate to ex-proprietary tenancy.
5. An ex-proprietary tenancy like any other tenancy can he jointly held by two or more persons. It is well established that joint possession of an ancestralholding coupled with Zamindar's consent is good ground for entry as co-tenant. Admittedly Hari Singh was an ex-proprietary tenant of the holding. Gaya Singh, the son of a pre-deceased brother of Hari Singh, could not inherit the tenancy but Gaya Singh's name was also mutated along with the name of his uncle Kundan Singh, who had survived his brother Hari Singh. Kundan Singh died and the names of his sons were mutated along with Gaya Singh. These entries continued for long in the revenue records and Gaya Singh also paid rent to the Zamindar. It is not disputed and cannot be disputed that Gaya Singh legally could not inherit the tenancy rights of Hari Singh. The question, therefore, arises whether the continuous entries in the name of Gaya Singh as a co-tenure holder along with his uncle Kundan Singh and thereafter with Kundan Singh's sons would entitle him to claim co-tenancy rights. It was suggested that Kundan Singh and his sons having acquiesced in Gaya Singh's sharing in cultivation with them and the Zamindar not having objected, rather having tacitly accepted him as co-tenant, will entitle Gaya Singh to claim co-tenancy rights. It is also well settled that co-tenancy rights can be created by estoppel and acquiescence but it was argued on behalf of the petitioner that in case of an ex-proprietary tenancy, because of the proviso to Section 33 of the U. P. Tenancy Act, 1939, the doctrine of acquiescence or estoppel will not be applicable inasmuch as although the interest of an ex-proprietary tenant is heritable but is not transferable unless the condition laid down in Sub-section (2) of Section 33 of the said Act are fulfilled. On this basis it was urged that since the release or transfer in favour of a co-tenant, notwithstanding that he may have shared in the cultivation of the holding could not be recognized unless such a co-tenant was a co-tenant from the commencement of the tenancy or had become as such by succession or had been recognized as such in writing by the landholder. It was further urged that Gaya Singh could not become co-tenant by succession, that he was not a co-tenant from the commencement of the tenancy as it was that of Hari Singh alone and that he was never recognized specifically as such in writing by the Zamindar, therefore, a release or transfer in his favour by Kundan Singh and his sons, who were ex-proprietary tenants by succession, would not be valid in lawand no amount of acquiescence on the part of Kundan Singh or his sons or tacit consent of the Zamindar would enure to the benefit of Gaya Singh. The decision of Beg, J. in the case of Irshad Ahmad v. Joint Director (1968 R D 129 (151)) (All) supports these contentions. However, in Dudh Nath Kori v. Smt. Dharrajja (1964 RD 324) (All) Gangeshwar Prasad, J., took the view that the provisions of Sec. 33 of the U. P. Tenancy Act, 1939 were not exhaustive of the manner of creation of co-tenancy and he held that co-tenancy could be acquired by means other than release or transfer. K. N. Srivastava, J. in Deo Narain Singh v. Aditya Prasad, 1971 All LJ 700 = (AIR 1971 All 415) took the same view.
6. The decisions cited above though relating to an occupancy tenancy could not be distinguished merely on that ground. Section 33 equally applies to occupancy tenants as to ex-proprietary tenants. Hence the ratio of decision therein will also equally apply to ex-proprietary tenancy or occupancy tenancy or hereditary tenancy. It only lays down that such tenancies are heritable but not transferable unless the conditions laid down in Sub-section (2) of Section 33 of the said Act are fulfilled. Beg, J. in the case of Irshad Ahmad v. Joint Director (1968 R D 129) (All) (supra) seems to have proceeded on the basis that the provisions of Section 33 related to the creation of such tenancies including ex-proprietary tenancy. The proviso to Sub-section (2) of Section 33 only defines the co-tenant in a negative form in whose favour release or transfer is not prohibited. Beg, J. himself concedes in his judgment that Clause (c) of Sub-section (2) of Section 33 contemplates an existing co-tenant in whose favour release or transfer of interest is made. That itself shows that Section 33 does not deal with the creation of the co-tenancy rights. Its effect would be that a release or transfer by a co-tenant in favour of the other co-tenant, who acquires co-tenancy rights by estoppel and acquiescence, would not be valid. But it does not follow from this that a co-tenant who had acquired right by estoppel or acquiescence cannot legally claim co-tenancy right in respect of his own share in the holding. We think that the decision of Gangeshwar Prasad, J in Dudh Nath v. Smt. Dharrajja (1964 R D 324) (All) (supra) and of K. N. Srivastava, J. in Deo Narain v. Aditya Prasad (AIR 1971 All 415) (supra) is correct and lays down good law in this regard.
7. We answer the question referred in the affirmative.