1. The facts which have given rise to the present appeal are as follows: One Amir was the occupancy-tenant of a holding. He died leaving two sons, the plaintiff-appellant and one Bahadur. Amir died about the year 1905; Bahadur died a few days after Amir leaving a widow Musammat Lalui. The names of the plaintiff-appellant and Musammat Lalui were recorded as tenants of the holding in the village papers. On 21st September 1908, Musammat Lalui executed a deed under which in consideration of a sum of Rs. 399-8. She sold the crops standing upon the plots specified in the deed and relinquished her occupancy-rights in that portion of the original holding to the defendants the zemindars of the holding. The plaintiff in the present suit seeks for a declaration that the deed is null and void as against him. The Court of first instance decreed the suit, but upon the ground that Bahadur had predeceased his father. The lower Appellate Court found that Bahadur died after his father and that his widow Musammat Lalui was his heir and that she was entitled to relinquish her half of the occupancy-holding. The lower Appellate Court, therefore, allowed the defendant's appeal and dismissed the plaintiff's suit. The plaintiff comes here in second appeal.
2. There has been no formal partition of the occupancy-holding though the defendant alleged that there had been a private partition. However that may be, the contention advanced on behalf of the plaintiff-appellant is that the deed of the 23th September 1908 is prejudicial to the plaintiff's interest and that he is entitled to have it set aside against him.
3. It is pointed out on his behalf that under Section 22 Clause (d) of the Tenancy Act the interest of Bahadur in the tenancy devolved on his widow Musammat Lalui till her death or re-marriage. Her interest in the holding was a limited one and was liable to come to an end at any moment. It has been conceded on behalf of the defendant-respondent that on Musammat Lalui's death, the person entitled to the holding would be the plaintiff if he happened to be then alive. This being the case I do not consider it necessary to discuss the provisions of Section 22 and I take' it that the plaintiff has a right to succeed to the interest of Musammat Lalai on her death or re-marriage. By her act in relinquishing a portion of the occupancy-holding to the zemindar she has defeated the right of the plaintiff to succeed as occupancy-tenant of that particular portion of the holding. It is true that under Section 82 of the Tenancy Act a tenant may relinquish the whole or even part of his holding if the landlord consents. In this case, where there are two tenants of the holding, a relinquishment by Musammat Lalui, prejudicial to the right of her co-tenant cannot be allowed and the plaintiff is entitled to the declaration asked for. It may be that he is making himself liable for the entire rent but that is a matter which concerns himself alone. I may point out that there is no ruling directly in point. It was held in Rannu Rai v. Rafi-ud-Din 27 A. 82 that an occupancy-tenant, who had made a mortgage of his holding and put the mortgagee into possession, could not during the subsistence of the mortgage relinquish such holding to the prejudice of the mortgagee's rights.
4. In the present case, I would hold that Musammat Lalui cannot relinquish her limited rights in the occupancy-holding to the prejudice of the person who will succeed in the event of her re-marriage or death.
5. The plaintiff, however, is not entitled to the damages allowed him in the decree of the Court of first instance.
6. I allow this appeal set aside the decree of the Court below and restore that of the Court of first instance with this modification that the decree as to damages is set aside.
7. The parties will pay and receive costs throughout in proportion to failure and success.