Hari Swarup, J.
1. This appeal has been filed against the judgment of the learned single Judge dismissing the writ petition filed by the appellant against the judgment and order of the Deputy Director of Consolidation passed under Section 48 of the U. P. Consolidation of Holdings Act.
2. Two points have been decided by the Deputy Director of Consolidation and the same were canvassed before the learned single Judge. The first point was in respect of the shares and the second was regarding the rights accruing in the joint Sir on the sale of the proprietary rights. The holding belonged to one Nand Lal. He had two wives. From the first wife were horn four sons. The appellant is from the branch of one those four sons. He is the son of Vrindraban. The respondents are from the branches of the other five brothers born of the second wife of Nand Lal. In the Khewat, after the death of Nand Lal, the share of the four brothers from one wife was recorded as half and of the remaining five from the other wife as half. There was Sir Khata also of Nand Lal which was inherited by his nine sons.
3. During consolidation proceedings, successors of the five brothers from the second wife of Nand Lal filed objections and contended that the shares recorded in the Khewat would not govern the shares of the parties in the Sir because the Sir would be inherited by all the brothers equally and could not be divided according to the circumstance of their being sons of two waives of Nand Lal.
4. The Deputy Director of Consolidation has held that the parties had failed toprove any custom according to which Sircould be inherited 'wife-wise' and that theinheritance was governed by the personal lawwhich was in the present case the Hindu Law.According to Hindu Law, Sir rights willdevolve equally on all the sons of Nand Lalirrespective of the fact that some of themwere born from one wife and others fromthe other. The Deputy Director, therefore,held that Sir rights should be deemed to havedevolved after Nand Lal's death equally onall the nine brothers. He had proceeded onthat basis. The learned single Judge alsoheld that the view of the Deputy Director inthis respect was correct. We also find noerror in the judgment of the Deputy Director so far as this point is concerned.
5. The other point decided by the Deputy Director relates to the rights arising after the sale of proprietary interest lay Tore, one of the sons of Nand Lal in favour of Vrindaban, father of the present appellant The sale-deed was executed in 1919. The Deputy Director held that where a proprietary right is transferred, right in the Sir get automatically transferred to the remaining co-Sirholders. He thought that unless by some positive act ex-proprietary tenancy rights are claimed by the vendor of proprietary rights, he loses all rights in his Sir and his rights in the Sir can be equally divided among the co-sharers. The learned single Judge did not find any error also in this part of the judgment of the Deputy Director.
6. Learned counsel for the appellant has contended before us that the view taken by the learned single Judge in this respect is not correct as the ex-proprietary tenancy rights arise automatically under law on the transfer of the proprietary interest. In our view, the contention is correct and the view taken by the Deputy Director as well as the learned single Judge is not in accordance with law.
7. The case is governed by the provisions of the N. W. P. Tenancy Act, 1901. Section 6 of the said Act enumerates the classes of tenants. Ex-proprietary tenant is one of the class of tenants. Section 10 lays down how ex-proprietary tenancy will coma into effect. Sub-sections (1) and (4) of Section 10 of the Act run as follows:--
'10. (1) Every proprietor whose proprietary rights in a mahal or in any portion thereof in any share therein, or in any specific area thereof, are transferred, on or after the commencement of this Act, either by sale in execution of a decree or order of a Civil or Revenue Court, or by voluntary alienation, otherwise than by gift or by exchange between co-sharers in the mahal,
shall become a tenant with a right of occupancy in his sir land, and in the land which he has cultivated continuously for twelve years at the transfer, and shall be entitled to hold the same at a rent which shall be four annas in the rupee less than the rate generally payable by non-occupancy tenants for land of similar quality and with similar advantages in the neighbourhood.
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Every such tenant, and every tenant having the same right under the corresponding provisions of Act XVIII of 1873, Act XII of 1881, or any other enactment for the time being in force, shall be called an ex-proprietary tenant, and, save as otherwise expressly provided, shall have all the rights and be subject to all the liabilities conferred and imposed upon occupancy tenants by this Act.'
Sub-section (5) of Section 10 provides-
'(5) The land in which such occupancy right has been created shall be specified and the rent payable therefor shall be fixed by the Collector under Section 36 of the North-Western Provinces and Oudh Land Revenue Act, 1901.'
These provisions clearly indicate that ex-proprietary tenancy rights accrue by operation of law as soon as proprietary rights are transferred. On Tore's transferring his proprietary rights, therefore, in favour of Brindaban, he became the ex-proprietary tenant qua his share in the sir. The failure to carve out his share under Sub-section (5) has no effect on the accrual of the right. That is only a consequential act to be performed by the revenue officer for purposes of the division of the holding between the Sir holders and ex-proprietary tenants and for collecting revenue. The accrual of ex-proprietary tenancy rights, however, does not depend upon that action. The ex-proprietary tenancy rights once accrued can be lost only in accordance with some provision of law and not by the failure of the officer to perform his duty under Sub-section (5) of Section 10 of the N. W. P. Tenancy Act, 1901.
8. The view of the Deputy Director that on the transfer of proprietary rights by Tore in favour of Brindaban his Sir got divided among the remaining co-Sirholders is thus patently erroneous. The remaining judgment of his proceeds and is based on this finding.
9. The appeal is accordingly allowed, judgment of the learned single Judge is set aside, the writ petition is allowed and the order of the Deputy Director of Consolidation is quashed and he is directed to rehear and decide the revision afresh in accordance with law. In the circumstances of the case, parties will bear their own costs.