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Musammat Dulari Vs. Mulchand and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.384
AppellantMusammat Dulari
RespondentMulchand and ors.
Excerpt:
agra tenancy act (ii of 1901), section 22 - occupancy holding--succession--hindu, law--daughter. - .....shibbo lived until 1906', when she died leaving her surviving her sons the defendants and her sister musammat dulari, the plaintiff. section 22 of the tenancy act purports to provide for the devolution of an occupancy holding, and if the estate of musammat shibbo was that of a full occupancy tenant within the meaning of the section, then there is no doubt that the holding would devolve upon her death, of her sons. musimmat dulari, the plaintiff, however, contends that musammat shibbo had only a daughter's estate that is a restricted life-estate in the holding which came to an end with her death. it has been practically admitted that if the property in question were ordinary zamindari property which had descended to an indigent sister in priority to an affluent one, the estate would.....
Judgment:

1. The question involved in this appeal is a right of succession to an occupancy holding. One Thakuri died some twenty-five years ago without male issue leaving him surviving two daughters, Musammat Shibbo and Musammat Dulari. Musammat Shibbo was indigent, while Musammat Dulari was affluent. Musammat Shibbo succeeded to the holding and it has been held by the Court below that her succession to the holding was under the provisions of the Hindu law, that the indigent sister takes in priority to the affluent sister. Musammat Shibbo's succession was prior to the coming into force of the present Agra Tenancy. Act. Musammat Shibbo lived until 1906', when she died leaving her surviving her sons the defendants and her sister Musammat Dulari, the plaintiff. Section 22 of the Tenancy Act purports to provide for the devolution of an occupancy holding, and if the estate of Musammat Shibbo was that of a full occupancy tenant within the meaning of the section, then there is no doubt that the holding would devolve upon her death, of her sons. Musimmat Dulari, the plaintiff, however, contends that Musammat Shibbo had only a daughter's estate that is a restricted life-estate in the holding which came to an end with her death. It has been practically admitted that if the property in question were ordinary zamindari property which had descended to an indigent sister in priority to an affluent one, the estate would devolve on the death of the poor sister on the rich sister in priority, to the poor sister's sons. It seems to us that Musammat Dulari's rights were acquired on the death of her father, that is to say prior to the passing of the present Tenancy Act and that these rights were merely postponed during the life-time of Musammat Shibbo. The present Tenancy Act does not purpose in any way to take away the rights which had already been acquired. For these reasons we think that both the Courts below were wrong, the Court of first instance in not giving the plaintiff a decree for the entire holding and the lower appellate Court in dismissing the suit altogether. We allow the appeal, set aside the decree of the lower appellate Court and modify the decree of the Court of first instance by awarding the plaintiff a decree for her claim in full. The plaintiff will have her costs in all Courts.


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