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Bhura Vs. Shahab-ud-din - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All128
AppellantBhura
RespondentShahab-ud-din
Excerpt:
act (local) no. ii of 1901 (agra tenancy act), section 22 - occupancy holding--succession. - .....tenant provides that on the death of the tenant his interest in the holding shall devolve on his male lineal descendants in the male line of descent. the appellant and the respondent to this appeal are both male lineal descendants of the last tenant in the male line of descent. the appellant is his son, while the respondent is his grandson. as the respondent's father predeceased his father, the last tenant, the respondent would be excluded under the bent act of 1881, section 9, which by the words 'as if it were land' made the personal law of the party applicable to the descent of an occupancy holding. the appellant therefore desires us to read into section 22 of the act now in force, such words as would make the tenure descend as if it were land, thus excluding the respondent. as a.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. In our opinion the decision of the learned District Judge affirming the decision of the Subordinate Judge is correct. The question is as to the interpretation to be put on the first clause of Section 22 of the Agra Tenancy Act, II of 1901. That clause in the matter of the succession [inter alia) to an occupancy tenant provides that on the death of the tenant his interest in the holding shall devolve on his male lineal descendants in the male line of descent. The appellant and the respondent to this appeal are both male lineal descendants of the last tenant in the male line of descent. The appellant is his son, while the respondent is his grandson. As the respondent's father predeceased his father, the last tenant, the respondent would be excluded under the Bent Act of 1881, Section 9, which by the words 'as if it were land' made the personal law of the party applicable to the descent of an occupancy holding. The appellant therefore desires us to read into Section 22 of the Act now in force, such words as would make the tenure descend as if it were land, thus excluding the respondent. As a reason for his contention his learned vakil pointed out that some unexpected results might follow from a literal interpretation of Section 22. For instance, in the case of the death of a tenant leaving several sons, grandsons and even great-grandsons, he argues that under the words of Section 22 the tenure might be held to devolve simultaneously on all.

2. As to that matter we do not consider it necessary to express any opinion now. There can be no doubt that the new Tenancy Act has completely altered the rule of devolution in the case of a tenancy such as that in question here. The tenancy no longer devolves 'as if it were land,' but on the lineal male descendants of the last tenant. The Legislature has chosen to alter the law, and we can see no reason why we should not assume that the new provision was deliberate and intentional. The parties here are Muhammadans, whose personal law gives a share in the estate of a deceased Muhammadan to daughters, wives, sisters and other females, who are excluded by the words 'male lineal descendants' in Section 22 of the new Act. If we apply the Muhammadan law for the purpose of excluding the respondent, it is difficult to see why we should not apply it to include females, whom the first clause of Section 22 excludes when there are 'lineal male descendants.' We dismiss this appeal with costs.


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