Tudball and Muhammad Rafiq, JJ.
1. This is a reference under Rule 27 of the rules and orders relating to the Kumaun division. The facts of the ease out of which the reference has arisen are as follows. In the year 1844 one Tula Ram Sub was a Government; treasurer at Almora. The village of mauza Nagar, together with its appurtenant hamlets called Bajera, &c.; was lying waste. At the settlement of that year a farming lease of the same was offered to Tula Ram for a period of twenty years, on payment of a sum of Rs. 3 per annum. Tula Ram appears to have been very unwilling to accept this generous offer of the Government. The completion of the matter was delayed for about two years, until in 1846 he was finally forced to accept a patta and to execute an agreement. In 1851 he executed a will under which he left the whole of his estate without specification of its details to his wife for her life and on her death to her daughter, Musammat Gangotri, for her life with reversion to the temple of Jagannath, the trustee of which is the plaintiff in the present suit. Tula Ram died in 1852. His widow Musammat Ratni sold all her right, title and interest in the above-named village to the predecessor in title of the present defendants. They have been in possession since then ostensibly as owners. Prior to their purchase the vendees appear to have been khaikars, or a class of occupancy tenants in possession of cultivated lands. Musammat Ratni died, sub her daughter Musammat Gangotri remained alive till 1904. The present suit was brought soon after her death by the trustee of the temple of Jagannath to recover possession from the defendants on the ground that the estate of Musammat Ratni was only one for her life and that, the two life estates having now vanished, the plaintiff as remainderman under the will was entitled to the property and that Musammat Ratni had no power to transfer more than her life interest under the will. The defendants met the case by pleading that Musammat Ratni on the date of the sale was the absolute owner of the property and had power to transfer to them full right of ownership. There was a further plea that, even if the plaintiff was entitled to the estate, still Section 51 of the Transfer of Property Act applied in respect to those improvements which had been made by the defendants, and the plaintiff would not be entitled to possession unless and until he made good to the defendants the expenditure incurred by the latter on the said improvements. It was also pleaded that the defendants were persons who had a right, at the date of the sale, to occupy and cultivate the said lands, and, even if absolute title did not pass to them, they have not lost that right and still are entitled to retain actual physical possession as khaikars. The suit was dismissed by the District Judge, who held that Musammat Ratni was, at the date of the sale, an absolute owner of the property. He held that Section 51 of the Transfer of Property Act would apply even if the widow had only a life-interest. He also held that the plaintiffs claim to possession was barred by the re-emergence of the previous occupancy rights of the defendants. This decision was upheld by the Commissioner on appeal and the Local Government have referred to us seven points for an expression of our opinion. The first question and the most important is 'was Musammat Ratni's title previous to 1871 based on the will of her husband, or on mere possession.' It should be noticed in the beginning that the will of Tula Ram Sah makes no special mention of his estate in the village now in suit. His exact right in this village is not absolutely clear. There can be no doubt from the settlement record of 1844 that a lease was granted to him, but no copy of this lease is forthcoming. It is not to be found on the settlement record, and his agreement, dated the 8th of August, 1846, does not set out the terms and conditions on which the lease had been granted to him. It is clear that the lease was for a fixed period, which came to an end in 1864. Whether his rights as a lessee were transferable or not is by no means clear. A reference to the selections of the records of the Government of the North-Western Provinces, known as Mr. Thomason's Despatch, volume II, at pages 202, 203 and 204, specially to paragraph 9 on page 204, goes to show that a farming tenure such as was granted to Tula Ram was not transferable. It shows clearly that such a lease, however, terminated on the expiry of the period for which it was granted. On behalf of the defendants it is urged that when Tula Rain died in 1852 the lease came to an end, and if his widow Musammat Ratni continued to hold the property she could not possibly have held qud legatee under the will, but only in her own personal right. It is further urged that, even supposing that the lease continued to run for its full period, and that she held the property during that period qud legatee under the will, still the leasehold came to an end in 1864, that is some seven years before 1871, the date of the transfer, and that when the continued to hold from 1864 to 1871 she held in her own right either as a leasee direct from the Government or as a trespasser, In the year 1871 the Government bestowed on her full proprietary title in the estate in dispute. On behalf of the defendants it is urged that this is an acquisition of her own, and that she had therefore full power to transfer it by a deed of sale. On behalf of the plaintiff it is urged, however, that Musammat Ratni, from the date of her husband's death up to the year 1871, was holding this estate as a legatee under the will having therein only a life estate; that while she held in this capacity the estate was enlarged, and that the enlargement is one which enured to the benefit of the estate and as such must pass over to the remainderman. The decision of the point depends on the capacity in which Musammat Ratni was holding the pillage now in dispute in 1871, at the time when the Government in pursuance of a general policy of not retaining proprietary possession in its own hands, bestowed proprietary title on many persona, some of whose claims thereto were vague and some who as farmers had no claim at all. As we have pointed out above, it is by no means clear on what terms this property was leased to Tula Ram, It seems highly probable that the rights of a lessee were not transferable. But it is impossible to come to a definite finding in the absence of clear evidence on the point. It is, however, quite clear that the term of the lease came to an end in 3864, and it was then in the option of the Government to grant a fresh lease to anybody to whom it might think fit to grant it. As a matter of fact it allowed Musammat Ratni to continue in possession, and in the year 1871, finding her to be a person who had apparently brought the village under cultivation and settled tenants on it, and therefore a fit person on whom to bestow proprietary rights, it made a free gift to her of those rights. The estate of Tula Ram, whatsoever it may have been in the village in dispute, came to an end at least in the year 1864, and in our opinion the possession of Musammat Ratni from that time onwards was the possession of herself in her own personal right and not possession of any portion of Tula Ram's estate under the will. This is our answer to the first question.
2. The second question is: 'If her possession up to 1871 was based on the will, did the enlargement of her legal estate, by settlement proceedings in 1871, operate to alter her title as legatee with a life-interest to a title of grantee with absolute interest?' It is quite clear that if her possession up to 1871 was based on the will the enlargement of the legal estate could not operate to alter the capacity in which she held it. If she held it qud legatee under the will,-the enlargement of the estate must have operated as an enlargement of the estate of her husband for the benefit of the remainderman under the will. It could not in any way create in her a title as a grantee wish absolute interest.
3. The third question is: 'What interest in the property in suit did the sale-deed by Musammat Ratni in favour of the defendants operate to transfer?' In view of our reply to the first question the answer to this question is that the sale-deed operated to transfer full proprietary title to the vendees.
4. The fourth question is: 'Was the Commissioner right in upholding the District Judge's decision, that the right of the plaintiff as reversioner under the will to possession was barred by the re-emergence of previous occupancy rights of the defendants transferees?' It is admitted on behalf of the plaintiff that as reversioner under the will he would be entitled only to proprietary possession, and that any occupancy rights previously acquired by the defendants could not be affected in any way, and they would be entitled to retain actual physical possession with such occupancy rights; the proprietary title being in the plaintiff. This in our opinion is correct and our answer to the question is that the decision of the Commissioner is correct only to the above extent.
5. The fifth question relates to Section 61 of the Transfer of Property Act. If the plaintiffs case be a good one, and if he is entitled to proprietary possession of the property, it is quite clear to our minds that Section 51 of the Transfer of Properly Act has no application to the case at all. The defendants, if the plaintiff's case be a good one, were persons who purchased from a widow in possession of the estate either as a legatee under her husband's will or in the ordinary way as a Hindu widow, and in such a case Section 51 of the Act could have no application.
6. Our reply to the sixth question is that the decision of the District Judge as upheld by the Commissioner was correct on two points and incorrect on the third.
7. As to the relief if any to which the plaintiff is entitled we would hold that the plaintiff is entitled to no relief at all and his suit ought to stand dismissed with costs in all courts.