1. This is a second appeal-by the plaintiffs whose suit for possession-has been dismissed by the two lower Courts. The plaint set out that the plaintiffs are co-sharers of onehalf zamindari share and defendant 3 is the co-sharer of the other half-share and also the lambardar in a Mahal. That Debi Prasad was an occupancy tenant who died 'about two years' before the plaint (dated 8th November 1927), leaving no issue, and his widow Mt. Champa Kunwar became occupancy tenant for her-life. That she died in July 1927 and as the holding was unclaimed plaintiffs and defendant 3 became entitled to get possession as zamindars. That Sone Lal, defendant 1, and Ganga Sahai, defendant 2, were collaterals of Debi Prasad who did not share in his cultivation, and that they entered into possession of his holding with the connivance of the lambardar defendant 3, who secretly received Rs. 200 as nazrana. That defendant 3 dishonestly instituted suit No. 156/56 of 1927 against Sone Lal, etc., in the revenue Court for possession and did not produce evidence and got the suit dismissed with a decree that defendants 1 and 2 had been joint in cultivation with Debi Prasad and were his collaterals and therefore succeeded his widow as occupancy tenants.
2. The plaint therefore asked for a declaration that this decree of the revenue Court, dated 7th October 1927, was without effect against the plaintiffs and that they should be put into possession and receive mesne profits. Ganga Sahai, defendant 2, died during the suit and his brother Sone Lal, defendant 1, pleaded that the civil Court had no jurisdiction, that the plaintiffs had full knowledge of the suit for ejectment in which there was no fraud or collusion and that the decree acted as res judicata. The rights of defendant 1 in the two plots were set out in a single paragraph of the additional pleas, as follows:
4 mudali majid Ganga Sahai numbe-Tan nisei men jo ki maurusi unite hain, ba maujudagi Debi Prasad, uske (sath), aur bad wafat Debi Prasad he uski bewa Mt. Jumna Kuer (he) shariq kasht rahe, aur numberan nizei kounke sharqat men chain taraddud karte rahe. Bayan mudaiyan khilaf uski mehz ghalat hai.
3. One of the questions for decision in this case is whether this pleading must be limited to a claim that defendants 1 and 2 were persons who had no rights in the holding during the lifetime of Debi Prasad but who were merely permitted by him to share in his cultivation and that Debi Prasad was the sole occupancy tenant, but that after the death of Debi Prasad and of his widow these defendants have a right to succeed to the occupancy holding under Section 22, Act 2 of 1901 or Section 24, Act 3 of 1926, as 'the nearest collateral male relatives in the male line of descent' who shared in the cultivation of Debi Prasad. Against this narrow interpretation there are two objections: (1) There is no mention in this para or any other part of the W.S. that these defendants were 'the nearest collateral male relatives in the male line of descent' or that they were any relatives of Debi Prasad at all. The reply is made that the plaint Para. 4 admitted the pedigree and this was admitted in the W.S. and that it was therefore not necessary to claim by succession. I think this reply is very weak. If the pleading is to be limited to succession, it should be shown that the pleading does plead succession, but it does not. (2) There is no mention that Debi Prasad was the sole occupancy tenant. On the contrary the paragraph begins by stating that the numbers are the occupancy tenancy of these defendants before there is any mention at all of Debi Prasad.
4. For these reasons I consider that it is-incorrect to limit Para 4 of the W.S. to a mere plea of succession. I consider that this paragraph can be fairly taken to include a plea that Sonelal and Ganga. Sahai were co-tenants with Debi Prasad, all three of them being occupaney ten ants of the holding. This view explains why the paragraph begins by stating that the plots are the occupancy tenancy of defendants 1 and 2, and then goes on to say that they cultivated the numbers jointly with Debi Prasad and his widow. It is of course obvious that as the greater includes the less, so a plea that these defendants were co-tenants of Debi Prasad will include the plea that they cultivated jointly with him during his lifetime. But I consider that it is the greater which is stated in this paragraph and not the less. The suit was brought in the Court of a Munsif and on appeal the Munsif was directed to refer the issue to the revenue Court under Section 273, Act 3 of 1926.
Whether the relation of landlord and tenant exists between the parties'?' It has been stated that on this issue the revenue Court was not entitled to come to the finding at which it arrived, which , was that
Debi Prasad, deceased, and Sone Lal, defendant, along with others, had ten joint occupancy holdings;
co-sharing in ten holdings of the deceased is sufficient be prove co-sharing in the deceased's holding in question and corroborates the oral evidence of co-sharing produced by Sone Lal . defendant;
there is no reliable evidence on the record to prove that Debi Parshad, deceased, and Sone. Lal, defendant, had partitioned their joint holdings privately.
5. The conclusion is:
For the reasons mentioned above I hold that relation of landlord and tenant does exist between the plaintiffs and Sone Lal, defendant.
6. Section 273, Act 3 of 1926 provides:
If...defendant pleads that he holds such land as the tenant of the plaintiff, the civil Court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue Court for the decision of that issue only.
7. The issue is always in the form ' Whether the relationship of landlord and tenant exists between the parties,' because Section 273 prescribes that form of issue. But the form of issue does not, in my opinion, limit the revenue Court in any way from finding how the relationship comes to exist. The Court is not prevented from a finding on the origin; on the contrary an omission to find the origin of the relationship would be a defect in the finding, as the reasons for the finding must be given. The claim of the defendants was not apparently put before the revenue Court on the ground of succession to Debi Prasad, but on the ground of co-tenancy with Debi Prasad and survivorship after the death of the widow (Section 26, Act 3 of 1926). One fact found by the lower appellate Court may be mentioned:
Debi Prasad was a schoolmaster employed in different villages, sometimes near and sometimes far away from his village, where the fields lay. His elder brother had died. Soney Lal his collateral, lived in a separate room of the house which was shared by Debi Prasad.
8. I may note that the pedigree shows no brother of Debi Prasad but an uncle who died without issue. It may also be pointed out that this suit is only for two field numbers, area 11/2 acres, a small holding; and the revenue Court found that ten other holdings were joint holdings. I do not think that the finding of the revenue Court can be set aside or disregarded by this Court in second appeal on the ground that the revenue Court was not entitled to come to that finding on the pleadings in the case or the issue referred to it. The finding of the revenue Court was not a mere finding that Debi Prasad had been the occupancy tenant of the numbers in suit and that at the time of his death defendants 1 and 2 were sharing in his cultivation. What the revenue Court found was that defendants 1 and 2 and Debi Prasad were the holders of the occupancy tenancy, as joint occupancy tenants, or co-tenants. On this finding the Munsif dismissed the suit. The plaintiffs appealed and the first ground of appeal was:
1. Yeh ki sabiq aur musallima hai ki khata nizei tanha kasht dakhilkari Debi Prasad mut-wafa tha, aur usmen respondent number aik men koi haqq o hissa nahin tha.
9. This ground is clearly directed against the finding of the revenue Court that defendants 1 and 2 were joint occupancy tenants along with Debi Prasad. The same point has been raised in ground No. 4 which has been translated:
It is fully proved from all the facts on the record that respondent 1 is by no means the tenant of the plots in dispute either by right of inheritance or in any other way. He is simply a trespasser.
10. This ground No. 4 raises the questions both of right and of inheritance. The lower appellate Court has decided the question of inheritance only which was also raised in ground No. 2:
It is by no means proved that respondent 1 and Ganga Sahai deceased were joint with Debi Prasad in the cultivation of the plots in dispute.
11. The lower appellate Court did not appreciate the distinction between the pleas in regard to right and the pleas in regard to inheritance, and it set out two points, one about profits and the other 'Did defendants 1 and 2 share with Debi Prasad in cultivating the plots?' It begins under this point No. 1 by misquoting the revenue Court as finding that,
defendants had shared in Debi Prasad's cultivating the plots in dispute and were entitled to succeed Debi Prasad as their collaterals.
12. The judgment then sets out the evidence about sharing in cultivation and finds for defendants and assumes that succession of defendants followed as a matter of course. The lower Court therefore disposed of the appeal of the plaintiffs on a preliminary point, namely that as defendants 1 and 2 shared in the cultivation of Devi Prasad and were admittedly his nearest male collaterals in the male line of descent, therefore, they were entitled to succeed to the occupancy holding on the death of his widow.
13. On second appeal the plaintiffs have taken the ground that Devi Prasad died while Act 2 of 1901 was in force and therefore his widow does not come under Section 25(1), Act 3 of 1926 but under Section 25(2), and on her death her heirs were entitled to succeed and not the heirs of Devi Prasad. I shall consider this argument later, but I would observe firstly: (1) There is no finding that Devi Prasad died while Act 2 of 1901 was in force. Plaint para. 2 said he died 'about two years ago' and the date of the plaint is 8th November 1927, admitted on 29th November 1927. Act 3 of 1926 came into force on 7th September 1926. If the appeal is to be decided on this sole point as to whether Devi Prasad died before or after 7th September 1926, a definite finding on the point seems to me to be necessary, as no one in the two lower Courts ever suggested that the date of death was of the slightest importance and no attention was directed to the date. No doubt the written statement para. 2 did admit para; 2 of the plaint, but the pleading ' about two years ago' is vague. Debi Prasad was a schoolmaster and it should be quite easy to ascertain the date of his death. The Court below mentions Shiam Lal, brother of the widow, as cultivating in F. 1334, after the death of Devi Prasad. F. 1334 began on 1st July 1926 and ended on 30th June 1927. If it was the rabi crop which Shiam Lal cultivated, that would be sown after Act 3 of 1926 came into force on 7th September 1926. This finding does not show that Devi Prasad died before Act 3 of 1926.
14. If the decree of the lower appellate Court is to be set aside in second appeal on the ground that the facts found by it do not entitle defendant 1 to succeed because Section 25(2), Act 3 applies, I consider that the case should then be remanded to the lower appellate Court for disposal under Order 41, Rule 23, Civil P.C., of the questions of fact raised by plaintiffs in grounds 1 and 4 of plaintiff's memorandum of appeal to the lower appellate Court. As already shown, the revenue Court found that defendants 1 and 2 were joint tenants with Devi Prasad in this holding. The lower appellate Court has not considered this finding at all, although it is raised in grounds 1 and 4 of the appeal to it; but the Court has disposed of the plaintiff's appeal on the preliminary ground raised in ground 2 and in part on ground 4, that defendants 1 and 2 did share in the cultivation, and being collaterals were entitled to inherit. Under Order 41, Rule 23 it appears to me that as the lower Court dismissed the appeal on one ground only, if this Court in second appeal finds that that ground is bad in law, then the case must go back to the lower Court for disposal of the other pleas raised by the plaintiffs against the findings of fact by the Revenue Court against the plaintiffs. The lower Court never purported to deal with this plea of cotenancy at all, and I do not see how this Court can assume that if it had dealt with the finding of co-tenancy it would have set the finding aside.
15. The plaintiffs in my opinion cannot succeed as long as the finding of the revenue Court that defendants 1 and 2 were co-tenants of Devi Prasad still stands. Even if all the grounds of second appeal on the subject of succession were conceded, the case for the plaintiffs could not succeed till this finding is set aside. The extinction of tenancies, which the plaintiffs claim, is provided for in Section 35, Act 3 of 1926, which states:
35(1) The interest of a tenant shall be extinguished (a) when he dies leaving no heir entitled to inherit it.
16. In the present case the tenants were Debi Prasad Sonelal and Ganga Sahai. Sonelal is still alive and it cannot be said that the tenant is dead. It is therefore not enough for the plaintiffs to show by legal argument that Sonelal cannot succeed by the table of succession in Section 25(2), on the death of the widow; the plaintiffs must also show that the finding of fact of the revenue Court is wrong; that Sonelal was a co-tenant, because as a co-tenant he would take by survivorship on the death of the widow without heirs under Section 26. It should also be noted that there are two alternatives: (1) That defendant 1 is the heir entitled to succeed under Section 24; (2) that defendant 1 is not the heir entitled to succeed under Section 24. If we take (4) then defendant 1 succeeds to the interest of Debi Prasad in the joint tenancy. If we take (2) as counsel argues, and hold that there is no heir entitled to succeed under Section 24, then defendant 1 takes by survivorship. This is provided for in Section 26, Act 3 of 1926, and except in the case of widows or of a co-tenant who dies leaving no heir entitled to succeed under Section 24, no-interest in any exproprietary occupancy, statutory or non-occupancy tenancy shall pass by survivorship. Debi Prasad and defendant 1 were joint occupancy tenants; if we hold that Devi Prasad died leaving no heir (after his widow) entitled to succeed under Section 24, then defendant has the co-tenant takes the interest of Devi Prasad or of his widow by survivorship and thus defendant 1 has on the death of the widow the whole occupancy tenancy.
17. It may be desirable to make this matter of joint tenants and sharing in the cultivation clear by an example. (a) A and B begin to cultivate a holding and cultivate it for twelve years and obtain occupancy rights. A and B are joint occupancy tenants or co-tenants. (b) A begins to cultivate a holding and by twelve years cultivation A acquires occupancy rights. A is the sole occupancy tenant. After A has become an occupancy tenant B shares in his cultivation. B has not got any occupancy rights in the holding and A remained the sole occupancy tenant. If however I? is a collateral of A and becomes entitled to succeed under the order of succession, his sharing in the cultivation enables him to succeed and to thus acquire occupancy rights. Learned Counsel has argued this appeal under the impression that the present case is one of (b). This is an error, the finding of the revenue Court is that this is a case of (a) and this finding was not set aside in appeal.
18. The present suit of the landholder for possession would fail (1) because defendant 1 is in possession and has all along been in possession as an occupancy tenant and Section 35(1) (a) has not been satisfied as it is not a case where the tenant has died leaving no heir; (2) because defendant 1 takes by survivorship, Section 26. The present suit is for possession of the holding and the dispossession of defendant 1. The suit therefore would fail. As learned Counsel devoted much argument to the question of succession I may also deal with the matter. The first ground of second appeal sets out:
Because upon the facts found or admitted Mt. Champa Kunwar not having inherited the holdings (sic) in dispute under Section 24, Agra Tenancy Act of 1926, Devi Prasad having died while Act 2 of 1901 was in force, Clause 2, Section 25, Agra Tenancy Act 1926 governs the present case and the defendants could not succeed as heirs of the deceased tenant and are trespassers in law.
19. The argument is that Devi Prasad died while Act 2 of 1901 was in force and was succeeded by his widow who died when that Act had been repealed by Section 2(1) of Act 3 of 1926, and therefore Act 2 of 1901 cannot apply because the succession opens on the death of the widow and must be governed by the law in force at her death. That all female occupancy tenants must be taken to be dealt with by Section 25, Act 3 of 1926 and Mt. Champa Kunwar does not come under sub s. (1) therefore she must come under sub s. (2) and under Sub-section (2) collaterals who shared in her husband's cultivation could not succeed her. This argument was considered by a learned single Judge of this Court in Jaswant Singh v. Ganga Sahai : AIR1934All1042 , and he held that Section 25(1) applies to all female proprietary tenants inheriting whether they take under Section 24, Act 3 of 1926 of under Section 22, Act 2 of 1901.
Perhaps Section 25(1) of the Act is not very happily expressed, but I have no doubt at all that it was the intention of the legislature to divide female tenants into two classes, namely the class which [inherited from male tenants, and the class which were tenants in their own. right. I cannot believe that it was the intention of the legislature, without a very clear statement to that effect, to change the whole status of every woman who was holding at the date when the Act was passed as an heir to a. male tenant and to destroy the rights or interests existing at that time in the reversioners-of those male tenants.
20. It is further to be noted that as regards the rights of the widow and the rights of the collaterals Act 3 of 1926 reproduces the provisions of Act 2 of 1901, for succession to an occupancy tenant. In each Act the widow may hold 'till her death or remarriage' and the nearest collateral male relative in the male line of descent may succeed if he shared in the cultivation of the holding at the time of the tenant's death. In Act III of 1926, Section 24 has introduced two other heirs, the father and the 'mother, being a widow', between the widow of the tenant and the collaterals. This merely in some cases postpones the succession of the collaterals if these heirs exist and the collaterals outlive them. But the scheme of the succession as regards the widow and the collaterals is not altered. It would there-fore be doing great violence to the language of Section 24, Act III of 1926 to hold that a collateral who complied with its requirements could not succeed. Presumably counsel would argue that the word 'dies' must mean 'dies after Act III of 1926 comes into force'. But the section does not say so, and there is-no reason to suppose that Section 24 is not intended to apply to a succession which opens out with the death of a widow while Act III of 1926 is in force, even though her husband died before the Act III of 1926 came into force. I consider that the word 'dies' in Section 24 is used in a perfectly general sense and not limited to death occurring after Act III of 1926 came into force. Section 24 lays down an 'Order of Succession' for male tenants.
21. I Consider that the section means that that order of succession is to apply whenever the question arises during the time that the Act is in force independently of the time of death. This Section 24 alone is sufficient to govern the succession, and the corresponding Section 22, Act II of 1901, Was sufficient during the period that Act was in force. The legislature however desired to deal with the case of female tenants who had themselves acquired the rights of occupancy tenants, etc., by twelve years' cultivation, and it provided for the succession to them in Section 25(2). To distinguish their case provision was made in Section 25(1) for female tenants 'who inherited an interest in a holding' from male tenants, and reference was made to Section 24. No doubt, to be complete, reference should have also been made to Section 22, Act II of 1901. There are some points of distinction to be noted between a widow on whom the interest of an occupancy tenant has devolved, who may be called A, and a woman who has acquired occupancy rights in a holding under Section 11, Act II of 1901, by twelve years, continuous cultivation, or on whom a right of occupancy has been conferred under Section 17, Act III of 1926, or who has otherwise acquired the right under Section 16, Act III of 1926, who may be called Rule (1) If A abandons or surrenders her interest to the zemindar, Section 25(1), Act III of 1926 provides that the interest devolves upon the nearest surviving heir of the last male tenant in accordance with the succession in Section 24: see also Section 108. But if B abandons or surrenders her interest in the holding, the occupancy tenancy will be extinguished under Section 35(1)(c) 2. If A and another widow of an occupancy tenant succeed him under Section 24, on the death of one widow the other widow takes the whole holding by survivorship under Section 26. But if B and her co-widow acquire occupancy rights for themselves, on the death of one widow her interest would devolve as provided in Section 25(2). 3. The interest of one occupancy tenant may be transferred to a person who was a co-tenant from the commencement of the tenancy, or who has become such by succession, or who has been recognised as such in writing by the landholder Section 23(2)(b). If B made such a release or transfer it would be valid for the benefit of the co-tenant. It is not provided that such a release or transfer by A would be different, but it appears that the principle of an abandonment or surrender by A should apply and the result should be that the interest would devolve on the nearest surviving heir of the last male tenant.
22. A loses her rights on re-marriage, B does not. 5. On the death of A, or remarriage, the descent is different in several points. The father of her deceased husband takes next. Bat he does not become the stock of descent, otherwise on his death his other sons would take as his male lineal descendants. Section 24 provides that the mother being a widow takes next, and then the brother, being a son of the same father, instead of 'this son taking immediately after his father. Then comes the daughter's son, who is succeeded by the nearest collateral male relative in the male line of descent, both of whom must have shared in the cultivation at the time of the original tenant's death. But on the death of B she is the stock of descent. Her male lineal descendants in the male line take first. If A had been widow with a family when she married the original tenant, her male lineal descendants by her former husband would not take at all. The next person who takes the interest of B is her husband, as in Section 24 he does not become a stock of descent. After him comes the daughter's son, provided that he shared in the cultivation at B's death. The father, the mother, the brother and the nearest collaterals are omitted, doubtless because they belong to the family of -Band would normally live in another village. 6. A belongs to a class which will continue to arise fairly frequently. But B belongs to a class which will die out, as there is no provision in Act 3 of 1926 corresponding to Section 11, Act 2 of 1901 by which a woman holding and cultivating for 12 years could acquire occupancy rights. The cases where a right of occupancy will be conferred on a woman under Section 17 will doubtless be extremely rare. When the existing female' occupancy tenants under Section 25(2) have died out, this class will practically become extinct. Female statutory tenants come in (3) Non-occupancy tenants are now a small class, as the great majority have become statutory tenants under Section 19. Ex-proprietary tenants, females, will no doubt occasionally arise, and they will be the sole survivors in Section 25(2). Many of the distinctions between A and B had' been made by judicial decisions under Act 2 of 1901. A point to be noted is the language of Section 25(1), Act 3 of 1926. Does it only apply to a female who has inherited since 'that Act came into force? If this were intended then it would begin: (1) When a female ex-proprietary occupancy or non-occupancy tenant on whom a interest in a holding has devolved under Section 24. This would be the correct construction in English to show that the words 'under Section 24' are to be taken with the verb, and that the female is to succeed or inherit under Section 24. The word 'devolve' is the word used in Section 24 and also in Section 25(2). But the word 'devolve' has been changed to the transitive verb 'inherit.' The object of the change appears to be to separate the verb from the words 'under Section 24' and the sub-section runs
(1) When a female exproprietary occupancy or non-occupancy tenant who has inherited an interest in a holding under Section 24....
23. In English, words modify the word with which they are in proximity and do not modify the more remote word. Grammatically therefore the words under Section 24' modify the expression an interest in a holding,' and the clause cannot be taken to mean 'who has inherited under Section 24 an interest in a holding.' What is the meaning of the expression an interest in a holding under Section 24' It means an interest which can be held under Section 24. One of those interests is 'widow till her death or remarriage.' That is an interest which could also be held under Section 22, Act 2 of 1901. A widow who held such an interest under Act 2 of 1901, Section 22, continued to hold it under Section 24, Act 3 of 1926, as that section continued to recognise that interest, as legal. She is therefore correctly described by Section 25(1),
a female occupancy tenant who has inherited an interest in a holding under Section 24.
because she has inherited an interest 'Which is now recognized by Section 24. It was not the purpose of the Act' to draw any distinction as to what was the section in force when she inherited; the purpose was to show what kind of an interest she must have inherited to come within Section 25(1), and that purpose is shown by stating that it is 'an interest in a holding under Section 24.' Some light is thrown on Section 25(1) if we consider how Act 3 of 1926 deals with the rights of widows and others who had succeeded an occupancy tenant under Section 22, Act 2 of 1901. For persons who acquired occupancy rights under Act 2 of 1901 there is provision in Section 16, Act 39 of 1926:
Every tenant, who at the commencement of this Act has acquired a right of occupancy under the Agra Tenancy Act, 1901, or under any previous Act shall be called an occupancy tenant.
24. The section does not say 'or his successors.' The reason is that the successors take the occupancy interest in some cases with certain limitations. (Re-marriage, stock of descent etc.). The word 'acquire' clearly refers to Section 11, Act 2 of 1901, and covers only those tenants who acquired occupancy rights by 12 years continuous holding. That section is noted in the margin with the title 'Acquisition of occupancy rights' and the section states:
Provided that no tenant shall acquire under this section a right of occupancy in any land, etc.
25. Now under both Acts the successors came in under Section 4(1) in Act 2 of l901 and Section 3(1) of Act 3 of 1926 which state in identical language:
All words and expressions used to denote the possessor of any right, title, or interest in land, whether the same be proprietary or otherwise, shall be deemed to include the predecessors and successors in right, title or interest of such person.
26. The language used here is quite indefinite in point of time, and applies equally to a widow who succeeded to an occupancy tenant under Section 22, Act 2 of 1901 or under Section 24, Act 3 of 1926-. Under either of those sections a widow succeeds ' till her death or remarriage.' A widow who succeeded ' till her death or remarriage' under Act 2 of 1901, continues with such interest so limited, under Act 3 of 1926, because under Section 3(1) of that Act, she is the successor of an occupancy tenant. Her right was and continues to be a limited one, and as that right is to hold ' till her death or remarriage ' it may be expressed as ' an interest in a holding under Section 24 ' because Section 24 deals with such an interest.
27. It is also quite clear that Sub-sections (1) and (2), Section 25 mean to distinguish two classes of female tenants: those who have taken by succession to males who have only a limited interest and from whom the holding does not devolve, and those who themselves acquired occupancy rights from whom the holding does devolve. To place a woman who belongs to one class into the other class because of mere verbal construction would violate the intention of the section. Further, such a method of construction ignores the provisions of Section 24 which lays down an ' order of succession ' and does not limit it to the case of a male occupancy tenant who dies after Act 3 of 1926 comes into force. The order of succession in Section 24 applies when any person holding in succession to a male occupancy tenant dies during the time Act 3 of 1926 is in force. This must be intended because the previous order of succession of Section 22, Act 2 of 1901, has been repealed, and the present Section 24 uses the indefinite tense for the verb ' dies,' covering the case of a male occupancy tenant who has died before the Act. A widow who succeeded a male occupancy tenant under Section 22, Act 2 of 1901 and who dies while Act 3 of 1926 is in force will therefore be succeeded by the classes in Section 24 below her. If the present case were one of collaterals sharing in the cultivation of the deceased male occupancy tenant, they would succeed the widow. As has been shown, the finding of fact is not merely that they shared in the cultivation, but that they were co-tenants from the commencement of the tenancy who acquired occupancy rights jointly with the husband of the widow. I may note that even if the view of Section 25(1) put forward by learned Counsel for appellant, were adopted, and the widow were put into Section 25(2), the appeal would still fail. For on this view the widow would have full occupancy rights and be a co-tenant with defendant 1, and on her death without heirs defendant 1 would take by survivorship from his co-tenant under Section 26, and defendant 1 would become the sole occupancy tenant, and plaintiffs would have no right to eject him. I would accordingly dismiss this second appeal with costs.
28. I regret I have come to a contrary conclusion. The first question is whether collaterals are entitled to succeed to these tenancies on the death of the widow. Under Section 6, Act 10 of 1859, Section 8, Act 18 of 1873 and Section 9 Act 12 of 1881, succession to occupancy tenancies was governed by the personal law of the tenant. Section 22, Act 2 of 1901 for the first time made a departure and laid down a new rule of succession. The-order of succession laid down was purely arbitrary; it was strictly speaking not. even exactly according to the Hindu Law much less according to the .Mahomedan Law. But as the majority of the tenants-are Hindus, the rule of succession resembled the Hindu Law much more. But many persons, who would have been heirs under the Hindu Law or the Mohammedan Law, were knocked out, Not only many of the heirs under the Mahomedan. Law but even the husband and the chela of the guru who would be heirs under the Hindu law were not in the list. Even the daughter's son and the nearest male collateral could succeed only if they shared in the cultivation. For purposes of succession, a marked distinction was drawn between proprietary interest and tenancy rights, the latter being regarded merely as a cultivatory or possessory right. One significant fact was that female tenants were not specifically mentioned; and the mention of the widow and the omission of the husband from the list made the section somewhat repugnant to the interpretation that Section 22 applied to. female tenants also. There was accordingly a considerable conflict of opinion both in the High Court and in the Board of Revenue as to the order of succession, to a widow whose husband had died before 1902 and who herself died while the Act of that year was in force. On the one hand it was held that Section 22 applied: see the cases of Ayub Ali Khan v. Mashuq Ali (1909) 31 All 51, Dulare v. Mul Chand (1910) 32 All 314, Deoki Rai v. Parbati 1914 23 IC 100, Nathu v. Gokalia 1915 37 All 658, Bisheshar Ahir v. Dukharan Ahir 1916 38 All. 197 and Bedim Singh v. Baldeo Singh 1922 44 All 327. On the other Chand, a contrary view was expressed in Mt. Sumari v. Jageshar (1913) 20 IC 7, Bhup Singh v. Jai Ram 1918 16 ALJ 459 and Bhawani Bhiki v. Sidh Narain 1923 All 18. A third view was expressed in perhaps only one case and that was that there was an, unintentional omission of a reference to female tenants. This latter view could perhaps simplify matters more than any other.
29. In this state of affairs it is not at all surprising that Act 3 of 1926 also has made drastic changes. Some provisions of it are beneficial to landholders while others are advantageous to tenants. Statutory rights have been conferred on tenants who were in occupation of lands at the time the Act came into force and their flimsy tenure has, by operation of law, been converted into at least a life tenancy. In Section 24 a father has been added as an heir and a new female heir, the mother, has also been added to the list. A new order of succession is prescribed to tenancies left by females. As the rule of succession is purely arbitrary, I can see no ground for starting with any necessary presumption that, howsoever much in other cases the rule of succession might have been changed, there has been no change whatsoever in the case of a widow. Nor there appears to be any valid ground for imagining that the intention of the legislature must necessarily have been that there should be no change so far as succession to a widow is concerned. As the line of succession is purely arbitrary, the question must, in my opinion, rest exclusively on an interpretation of Section 25 which deals with female tenants.
30. For the first time, Sections 24 and 25 make a clear distinction between male and female tenants. The legislature, perhaps realizing the previous omission, has now thought it necessary to make separate provisions for succession to male and female tenants. The presumption is that the orders of succession now laid down are intended to be exhaustive. Having provided in Section 24 for the succession of the widow and the mother when a male tenant dies, Section 25 lays down what is to happen when a female exproprietary, occupancy or non-occupancy or statutory tenant dies. As I read Section 25, it consists of two main sub-sections, the first dealing with certain specific female tenants and the second with all the rest. Sub-section (2) applies to all tenants 'other than one subject to the provisions of Sub-section (1).' It is obviously the residuary section that must apply to every female tenant who does not come within the scope of Sub-section (1). I cannot see any ground for thinking that the legislature has classified female tenants into two groups: (a) those who have limited interest and (b) those who have full interests. Such a classification is not to be found in the section. As the words stand, I am bound to hold that the first sub-section contains a group of specified classes of female tenants, and the second sub-section is the omnibus sub-section including all the rest. Sub-section (2) must apply to a female tenant unless she can be brought within the purview of Sub-section (1).
31. It is a well established rule of interpretation that new words, which the legislature has not used, should not be imported into a section in order to interpret it, when the section as worded can have a rational meaning. Now the language employed in Sub-section (1) applies to a female exproprietary occupancy or non-occupancy tenant (a) who ' has inherited an interest in a holding under Section 24' or (b) the female heir of a statutory tenant, or (c) a widow ' of Class 2 in Section 24.' It seems to me that all these three classes refer to widows who inherit a tenancy after the coming into force of the new Act.
32. The expression 'under Section 24' would ordinarily be taken to be an adverbial prepositional clause modifying the verb 'has inherited.' There is no inflexible rule that an adverb must not be separated from the verb and must join it. Indeed, more often than not an adverb is put after the object governed by a transitive verb. If therefore the expression 'under Section 24' modifies the verb 'has inherited,' there can be no doubt whatsoever that it refers to a female tenant who inherits the estate under Section 24 of the new Act and therefore after the coming into force of that Act. On the other hand, an adjective is generally taken to qualify the noun nearest to it and not one more remote. If therefore 'under Section 24' be taken to be an adjectival clause, it would ordinarily qualify the noun 'holding' which would make it meaningless and not the more remote noun interest.' I am however prepared to assume that even as an adjectival clause it qualifies the noun 'interest.' In my opinion that does not improve matters in any way, because we are still tied down to the interest acquired 'under Section 24.' There is no escape from this inference unless we put new words into the section and make it read as if it were 'and interest in holding referred to or recognized in Section 24.' There is no justification for such an interpolation. To put such an interpretation on this sub-section, we would be compelled to say that words like ' or under the corresponding Section 22 of the previous Act' are understood, or we would have to say that an interest under Section 24 means 'a limited interest of the kind mentioned in Section 24.' I feel that I must interpret the section as it stands without giving to it an unnecessarily constrained meaning and make it include inheritance under the previous Tenancy Act, which it does not profess to do, simply because it might be thought that the inheritance to a female widow must have been left untouched by the legislature.
33. Nor do I think that the expression that when a female...tenant dies 'which is in the present tense, should be construed as meaning 'where a female tenant had died before the Act came into force.' I must give to the words their natural meaning unless there is something which compels me to depart from such a course. The second class of tenant namely, the female heir of a statutory tenant must, of necessity, die after the coming into force of the Act, for there were no statutory tenants earlier. It therefore seems to me that the same verb dies' which applies to female heirs of statutory tenants also cannot mean 'had died before the Act came force.' Similarly, the third class of tenant is a widow of Class 2 in Section 24. Here the section is far more specific. It refers in express terms to 'Class 2 in Section 24.' I am unable to change these words and read them as -if they meant a widow who has a limited interest for life until re-marriage of the kind mentioned in Class 2 in Section 24. Had the legislature intended that a widow who had inherited under Section 22(b) of the earlier Act should also be included, there is no reason why it should not have said so clearly.
34. Again, the fact that under Sub-section (3), the heir to a female statutory tenant(who has not inherited an interest under Section 24) is not governed by Sub-section (1) but is governed by Sub-section (2) shows that even female tenants have been given higher rights. It has been argued that under Section 24, it is only an interest in the holding and not the holding itself which devolves on females. I see no force in this contention, because it is the interest in the holding alone which under Section 24 devolves on the male lineal descendants, the father, the brother, the daughter's son and the nearest collateral. The same expression is again used in Section 25. Thus both female and male heirs are spoken of as getting an interest in the holding. To my mind the use of the word 'inherited' in Section 25, as compared to the word 'devolve' is not of any peculiar significance. I feel considerable difficulty in saying that a female heir is not a tenant. She is expressly spoken of as an exproprietary, occupancy or non-occupancy tenant in the first two sub-sections of Section 25. According to the definition of tenant' in Section 3, Sub-section (6) a tenant is merely a person by whom rent is payable. There would be enormous difficulties in assuming that she is not an exproprietary, occupancy or non-occupancy tenant, but something else. In the first place Section 10 specifies only 7 classes of tenants for the purposes of this Act and the list is obviously exhaustive. No other category is, therefore, admissible. In the second place, most of the provisions of the Tenancy Act relating to recovery of arrears of rent, ejectment, enhancement of rent, etc., would be in terms inapplicable to female tenants, which could not possibly have been the intention of the legislature. I am, therefore, constrained to hold that Sub-section (1) is confined to only three classes of females mentioned above and no more. It follows that Sub-section (2) applies to all other female exproprietary, occupancy and non-occupancy tenants.
35. The words 'no...tenant other than one subject to the provisions of Sub-section (1)' are obviously intended to be wide and general. I am unable to hold that in spite of the serious conflict of opinion arising in the High Court, and in the Board of Revenue under the previous Tenancy Act due to an omision to refer to widows who were already in possession of tenancies, the legislature has again failed to specifically refer to them. I am loath to contribute a further omission on the part of the legislature, and must conclude that as widows who bad inherited tenancies under the previous Act are not mentioned in Sub-section (1), they necessarily come in the residuary clause in Sub-section (2). I can see no catastrophe resulting from such an interpretation. As already pointed out, the personal law was radically changed even by the previous Act. The law has undoubtedly been changed to some extent by the new Act, and there is nothing surprising if the law has been changed to some extent as regards female tenants. Certainly the mother has been added for the first time and separate provisions for females have been made in Section 25. It must also not be forgotten that Mahomedan widows and mothers, who under their personal law, would inherit absolutely, have been deprived of such right. Again every tenant, who was in possession even for a very short time has been given statutory rights. It is therefore nothing startling if widows have been given some more rights under the new Act.
36. But really I do not consider that any greater rights have been conferred on female tenants. Apparently the legislature does not consider that a change in the line of succession in any way diminishes the interest of the tenant. If that were so, then it might well be argued that the previous Act of 1901 took away some of the rights of the male tenant inasmuch as his heirs under his personal law were excluded. And undoubtedly a serious change was made so far as Muslim females were concerned. The fact is that heirs have only contingent and not vested rights, and so there is no deprivation. Lastly, when we come to examine the practical difference in the categories given in Sections 24 and 25, we find that the main difference is that collaterals are altogether excluded under the last section, even if they shared in the cultivation. This provision is for the benefit of the landholders, as there is a possibility of the tenancy lapsing to them. It is no wonder if the landlords who were adequately represented in the legislature, gained this point in their favour. As regards the other possible difference, barring the rare case where a widow may remarry and have children from her new husband the line of heirs is identical. Her lineal descendants and her daughter's son would be the same as those of her husband; and the husband in Section 25 corresponds to the widow in Section 24. I see-absolutely no reason why these slight differences could not have been intended by the legislature. As already pointed out there were changes introduced by the previous Act and so changes have been made in the new Act as the law of succession is a purely arbitrary one.
37. Another consideration which weighs with me is that this interpretation would now bring about a perfect uniformity, no matter whether the female tenant is a Hindu, a Muhammadan or a Christian or belongs to any other sect. A contrary-interpretation would make Hindu widows, who had limited interest, governed by the order of succession in Section 24, while Muhammadan widows, to whom Section 22 oil the previous Act might not apply, would not be so governed. I am, therefore, of the opinion that on the death of the widow, the succession to the tenancy is; governed by Section 25, Sub-section (2), and the collateral heirs of her deceased husband are altogether excluded. I am also unable to agree that the suit must fail in any case, because the defendants-must be taken to have been joint tenants. Now the only question which was referred to the Revenue Court and which it took up for consideration was whether the relation of landlord and tenant existed between the parties and its finding was. directed to that point. No doubt, in giving its reasons it mentioned that the: tenancies had been joint, but such a plea had not been taken in express terms in the written statement, in which para. 4 had merely alleged that they 'were joint in cultivation of the plots in dispute 'which' are their occupancy holdings.'
38. In fact the allegation in para. 2 of the, plaint that Debi Prasad was the occupancy tenant of these plots and on his-death his widow became their occupancy tenant with life interest was admitted in para. 2 of the written statement without any reservation. In my opinion it was-not open to the revenue Court, to consider such a case. The lower appellate Court considered that there were only two points for determination in the appeal, and besides the question of profits, directed its attention only to the question whether the defendants had shared with the deceased tenant in. activating, the plots presumably because there was no plea that the lands were their joint holdings, and it had been merely said that 'they cultivated the said plots jointly.' The finding, that they so shared, is by implication contrary to the assumption that they did not share in the cultivation, but were themselves joint tenants. There is certainly no finding by the lower appellate Court that they were joint tenants of the holding. In these circumstances if it were open to the defendants to take the plea that they are not heirs of the deceased tenant, but were themselves joint tenants with him, then we would have to ask the lower appellate Court for a clear finding on it, and as there was no specific issue framed on the point, the parties may have to be allowed to produce fresh evidence. But in my opinion on the pleadings in this case such a plea is not open to the defendants. I would, therefore, allow the appeal and decree the plaintiffs' suit with costs.
39. As we differ op the following questions of law, we direct that the case be laid before the Chief Justice for the questions being referred to one or more Judges of this Court under Section 98, Civil P.C., for an expression of opinion:
1. Whether where a Hindu occupancy tenant died while the Tenancy Act (Act 2 of 1901) was in force and was succeeded by his widow, and the widow died after the coming into force of the Tenancy Act of 1926, the succession is governed by Section 25, Sub-section (1) or Section 25, Sub-section (2) of the new Tenancy Act?
2. Under the circumstances of question 1, is defendant 1 entitled to succeed under Section 24, Act 3 of 1926 or otherwise to the occupancy holding on the finding that he is the nearest collateral male relative in the male line of descent and that he shared in the cultivation of the last male occupancy tenant at his death?
3. Is it open to the defendants in this second appeal to have the case sent back to the Court below for a finding as to whether, if defendants are not entitled to succeed as heirs of the last male occupancy tenant, they are entitled to claim the whole occupancy tenancy by survivorship under Section 26, U.P. Act 3 of 1926, as co-tenants of a tenant who has died leaving no heir entitled to succeed?
4. On the admission in para. 2 and the plea in para. 4 of the additional pleas of the written statement, was it open to the revenue Court to come to a finding of joint ownership of the occupancy tenancy by defendant 1 and Devi Prasad?
40. Certain questions of law arising in this appeal have been referred to me under Section 98, Civil. P.C., on a difference of opinion between the Hon'ble the Chief Justice and Bennet, J. Before I express my opinion on those questions it is-necessary that the facts of the case should be stated at some length. In the suit which has given rise to this appeal Piare Lal. Miraji Lal and Raghunandan Prasad,. Kalika Prasad and Soney Lal, sons of Janki Prasad, were the plaintiffs, and Soney Lal, son of Baldeo Prasad, Ganga Sahai and Darshan Lal were the defendants. Ganga Sahai died during the pendency of the suit and Soney Lal defended the suit in his own right and as-heir of Ganga, Sahai deceased. The plaints stated that the plaintiffs and the defendant Darshan Lal were cosharers and zamindars of half and half in mahal Sundar Lal, mouza Kamalpur, District Mainpuri, and Darshan Lal was a lam bardar of the said mahal. In para. 2 it was stated:
The plots given below lie in the said mahal Debi Prasad, the occupancy tenant of those-plots, died about two years ago without leaving any issue. On his death, his widow Mt. Champa. Kunwar became the occupancy tenant of the said plots with life interest.
41. It then went on to say that Mt. Champa Kunwar died in July 1927, and on her death the holding comprising the plots in-dispute became lawaris (unclaimed, in the absence of heirs) and the plaintiffs-and Darshan Lal became entitled to get possession and occupation as zamindars. The defendants Soney Lal and Ganga Sahai, although they were related to-Debi Prasad, were not joint in cultivation with him, and they, without any right. entered into possession of the holding The defendant Darshan Lal had no rights to give occupancy rights in respect of those plots without the consent of the plaintiffs, but he, for his own private-gain on receipt of Rs. 200 as nazrana, instituted suit No. 195/56 of 1927 for the ejectment of Soney Lal and Ganga Sahai, but he did not properly look after the case and on 7th October 1927 caused his suit to be dismissed with an order in favour of Soney Lal and Ganga Sahai to the effect that they were the occupancy tenants of the plots in dispute by virtue of their being the heirs of Debi Prasad and of their having been joint in cultivation with him. It was said that the above decision was collusive and fraudulent and the defendants Soney Lal and Ganga Sahai were liable to be ejected. On the above allegations the plaintiffs prayed that the decision of the Assistant Collector dated 7th October 1927 might be declared to be ineffectual and the plaintiffs might on reservation of the rights of Darshan Lal and on dispossession of Soney Lal and Ganga Sahai be put in proprietary possession of the plots in suit. Damages and mesne profits were also claimed.
42. Darshan Lal, who was a pro forma defendant, did not file any written statement, but Soney Lal, who after the death of Ganga Sahai was the principal defendant, filed a written statement, and in that document para. 2 of the plaint was admitted. The defendant then went on to assert that the suit was not cognizable in the civil Court, that the relationship of landlord and tenant did not exist, between the parties, that the plaintiffs had full knowledge of the previous suit for ejectment in which there was no fraud or collusion and therefore that decree operated as res judicata. In para. 4 of the written statement it was stated that the contesting defendant and Ganga Sahai were joint in cultivation with Debi Prasad in his lifetime and with his widow Mst. Champa Kunwar after the death of Debi Prasad in the plots in dispute which were their maurusi and the allegations of the plaintiffs to the contrary were quite wrong. The suit was instituted in the Court of the Munsif and he on 30th April 1929 decreed the plaintiffs' suit for possession and for Us. 30 as mesne profits. On appeal the learned Subordinate Judge on 1st April 1930 directed
the Munsif to refer the question of tenancy to the revenue Court which should be requested to decide the question independently of the finding in the revenue Court in suit No. 56/195 of 1927, dated 7th October 1927, which has been held to be fraudulent.
43. It would appear that the Munsif had on a former occasion sent the record to the revenue Court for determination of the question of tenancy and the revenue Court held that it was bound by the previous decision of the revenue Court wherein the defendants were declared to be the occupancy tenants on a suit brought against them by Darshan Lal. It was for this reason that on 1st April 1930 the learned Subordinate Judge made the above direction. The learned Munsif then on 3rd May 1930 referred an issue to the revenue Court with a request that the question be decided independently of the finding of the revenue Court in suit No. 56/195 of 1927, dated 7th October 1927. The issue was: 'Whether the relation of landlord and tenant exists between the parties.' The revenue Court began by saying that it was admitted in the plaint and had been satisfactorily proved by Soney Lal, defendant, that he (Soney Lal) was the nearest male collateral of Debi Prasad, the deceased occupancy tenant of plots Nos. 34 and 38, and therefore the only question to be decided in the case was whether Soney Lal, defendant, co-shared with Debi Prasad in the cultivation. It then went on to say:
It appears from the evidence on the record that both Debi Prasad deceased and Soney Lal defendant, along with others had ten joint occupancy holdings in villages Kamalpur and Ali-purpatti. Both Debi Prasad and his widow Mt. Champa have died. Prom the holdings situate in Alipur patti the names of both Debi Prasad and his widow have been removed, while in those situate in Kamalpur the name of Debi Prasad's widow still stands along with the names of Soney Lal defendant and others.
44. I am quite clear in my mind that the above mentioned joint occupancy holdings are different from holdings consisting of Nos. 34 and 38, which are in suit, for the learned Assistant Collector goes on to say that
cosharing in ten holdings of the deceased is sufficient to prove cosharing in the deceased's holding in question and corroborates the oral evidence of cosharing produced by Soney Lal defendant,
and then, regarding those ten holdings, the learned Assistant Collector observes that there was no reliable evidence on the record to prove that Debi Prasad deceased and Soney Lal defendant had partitioned their joint holdings privately. Paper No. 35C of the record which is a copy of the khatauni of 1325 F corresponding to 1918 shows that the names of Debi Prasad and his uncle Banwari Lal alone appear against the plots in dispute, and in the khatauni of 1333F the name of Mt. Champa Kuar alone appears. On the finding that the defendant Soney Lal was a co-sharer with the deceased Debi Prasad in the holding in dispute the revenue Court held that the relationship of landlord and tenant did exist between the plaintiffs and Soney Lal. When this finding came to the civil Court the learn-ad Munsif on 19th May 1931 dismissed the plaintiffs' suit. The plaintiffs filed an appeal in the Court of the District Judge and there they pleaded that it was admitted and proved that Debi Prasad deceased was the sole occupancy tenant of the holding in dispute and that it was by no means proved that Soney Lal and Ganga Sahai deceased were joint with Debi Prasad in cultivation of the plots in dispute. The learned District Judge agreed with the finding of the revenue Court and came to the conclusion that the right of the defendant Soney Lal to succeed Debi Prasad was complete owing to his having shared in Debi Prasad's cultivation with him in his lifetime.
45. In second appeal it was contended that as Mt. Champa Kunwar did not inherit the holdings in dispute under Section 24, Agra Tenancy Act of 1926, Debi Prasad having died while Act 2 of 1901 was in force, Clause 2, Section 25, Agra Tenancy Act, 1926 governed the present case and the defendants could not succeed as heirs of the deceased tenant and were trespassers in law. The appeal coming before a single Judge of this Court was referred to a Bench of two Judges and the learned Judges constituting the Bench differed on certain questions of law which, as I stated 'before, have been referred to me for my 'Opinion. The first two questions so referred are as to the order of succession and the next two relate to pleadings. I propose to take up question No. 4 first. That question is:
On the admission in para. 2 and the plea in para. 4 of the additional pleas of the written statement, was it open to the revenue Court to come to a finding of joint ownership of the occupancy tenancy by defendant 1 and Debi Prasad?
46. The question assumes that the revenue Court in its order dated 25th April 1931, did come to a finding that the holding in dispute in the present case was jointly owned by Soney Lal and Debi Prasad. In an earlier portion of my judgment while stating the facts I have said that I am quite clear in my mind that the ten joint occupancy holdings mentioned by the revenue Court did not include the occupancy holding in dispute, but that they were different from Plots No. 34 and 38 and that this was obvious. Learned Counsel before me were unable to show that the ten joint occupancy holdings in spillages Kamalpur, and Alipur patti include the holding in dispute in the pre-sent case, and, while determining the question of cosharing, the revenue Court as a matter of law relying upon the cases of Ram Das v. Thakur Ram Narain (1926) 7 LRA Rev 188 and Bankat v. Badri pd. (1927) 8 LRA Rev 336, held that cosharing in ten holdings of the deceased was sufficient to prove cosharing in the deceased's holding. I do not think that the revenue Court ever found that the holding in dispute in the present case was in the joint ownership of Soney Lal and Debi Prasad. As the question assumes that the revenue Court did arrive at such a finding I am asked to give my opinion on the question whether it was open to the revenue Court to come to such a finding. Now in para. 2 of the plaint the plaintiffs distinctly said that Debi Prasad, the occupancy tenant of the plots in dispute, died about two years ago without leaving any issue and on his death his widow Mt. Champa Kunwar became the occupancy tenant of the said plots with life interest. This paragraph was admitted without any reservation by para. 2 of the written statement. It was open to the defendants, while admitting certain portions of para. 2 of the plaint, to say that certain others were not admitted. I find in this very written statement certain paragraphs dealing with general denials and admissions and therefore several statements to the effect that certain portions of a particular paragraph of the plaint were admitted and certain portions of the same paragraph were not admitted. If therefore the defendants wanted only to admit the death of Debi Prasad and nothing further they could very well have said so. It is however said that the case of the defendants was developed in the additional pleas in para. 4. I have stated that paragraph also at length and I am of the opinion that the main contention of the defendants there was that they cultivated the plots jointly with Debi Prasad during his lifetime and with his widow after the death of Debi Prasad. It is true that they did not say that the plots in dispute were their maurusi. The word maurusi however, does not necessarily mean that the plots were the joint occupancy holdings of Debi Prasad, and the defendant Soney Lal. , Literally maurusi means 'ancestral', and it might well be that all that the defendants wished to convey was that the occupancy right in the plots was not acquired by Debi Prasad himself, but that it was a plot which was in the family from the time of the ancestors, and it is quite clear, according to the pedigree in the plaint, that the defendants are members of the family of Debi Prasad, and it was only in this sense that the defendants called the plots as maurusi, as distinguished from ,self-acquired. I am not prepared to attach very great importance to the memorandum of appeal filed by the plaintiffs in the Court of the District Judge wherein it was stated in the first plea that it was proved and admitted that Debi Prasad was the sole occupancy tenant of the holding in dispute and that respondent 1 had no right to and share in it. The judgment of the revenue Court was not very happily expressed and there was a possibility of interpreting it as implying that there was a finding therein to the effect that the holding in dispute was the joint holding of Debi Prasad and the defendant Soney Lal. The plea was intended to attack that finding if there was such a finding. If there was no such finding the plea was superfluous. When para. 4 of the memorandum of appeal is correctly translated it runs as follows:
It is fully proved from all the facts in the record that respondent 1 is by no means the tenant of the plots in dispute either by inheritance or in any other way, and that he is a pure trespasser.
47. The office has not translated that paragraph correctly and has added the words 'by right or' before inheritance. No adverse inference can be drawn from this paragraph as it stands in the original. I am therefore of the opinion that it was not open to the revenue Court to come to a finding of joint ownership of the occupancy tenancy by defendant 1 and Debi Prasad. I now propose to answer question No. 3. Prom what I have stated before it is clear that I am of the opinion that the defendant never set up the plea of being a joint tenant with Debi Prasad in the plots in dispute and that no Court has so far found that he was such a joint tenant. Before the revenue Court when the matter came for the first time on a suit brought by Darshan Lal in 1927, the Court found that the defendant Soney Lal was Debi Prasad's collateral and was joint with him in cultivation. The revenue Court in 1931 also said that the question to be decided was that of the co-sharing in cultivation, and decided that question in favour of the defendant Soney Lal. The learned Subordinate Judge also found that Soney Lal's right to succeed Debi Prasad became completed owing to his having shared with Debi Prasad's cultivation with him in his lifetime. I am therefore of the opinion that it is not open to the defendants in this second appeal to have the case sent back to the lower appellate Court for a finding as to whether, if defendants are not entitled to succeed as heirs of the last male occupancy tenant, they are entitled to claim the whole occupancy tenancy by survivorship under Section 26, U.P. Act 3 of 1926, as co-tenants of a tenant who has died having no heir entitled to succeed.
48. I now propose to consider the first two-questions which are the principal questions in this appeal. The facts are that Debi Prasad, as stated in the plaint and as admitted in the written statement, died about two years before the institution of the suit. The suit was instituted on 10th November 1927 and the admitted death of Debi Prasad must therefore be said to have taken place about November 1925. The present Tenancy Act came into force on 7th September 1926 and in spite of the element of approximation contained in the words 'about two years ago' I cannot hold that it is possible to say that Debi Prasad died after the present Tenancy Act came into force. It must be taken that it was admitted that Debi Prasad died when Act 2 of 1901 was in force. The Court below mentions Shiam Lal, brother of the widow, as cultivating in 1334 fasli after the death of Debi Prasad, and the fasli year 1334 began on 1st July 1926. All the facts therefore point to the death of Debi Prasad having taken place when Act 2 of 1901 was in force. That being, so, the widow of Debi Prasad entered into possession of the holding under Section 22, Act 2 of 1901 and under Clause (b) his interest in the holding would devolve on the widow till her death or remarriage. The widow Mt. Champa Kunwar also admittedly died in July 1927 when Act 3 of 1926 was in force and the question is-whether the succession to the widow would be governed by Clause (1) or Clause (2),; Section 25. Clause (1) runs as follows:
When a female ex-proprietary occupancy or non-occupancy tenant who has inherited an interest in a holding under Section 24...dies...such interest shall, notwithstanding anything contained in Section 35, devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with Section 24.
49. If the above clause applies it is clear that the defendant Soney Lal would succeed inasmuch as if an ascertainment is made in accordance with Section 24 Soney Lal would come in Class 7 being the nearest collateral male relative of Debi Prasad in the male line of descent and who, according to the finding of the Court below, shared in the cultivation of the holding at the time of Debi Prasad's death. If however Clause (1), Section 25 does not apply then obviously Clause (2) would apply, and Soney Lal would not be one of the persons on whom the interest in the holding could devolve. Now there cannot be the slightest doubt that Mt. Champa Kuar was a tenant. 'Tenant' is defined in Clause (6), Section 3, Tenancy Act, as the person by whom rent is, or but for a contract, express or implied, would be payable, and Mt. Champa Kunwar was a person by whom rent was payable. She must also be deemed to be an occupancy tenant, for Section 16 defines an occupancy tenant as a tenant
who at the commencement of this Act has acquired a right of occupancy under the Agra Tenancy Act, 1901.
50. Debi Prasad being admittedly an occupancy tenant had undoubtedly acquired a right of occupancy under the Agra Tenancy Act of 1901 and under Section 4 of the former Act all words and expressions used to denote the possessor of any right, title or interest in land shall be deemed to include the predecessors and successors in right, title or interest of such person. The question then arises whether she has inherited an interest in a holding under Section 24. Ordinarily the obvious answer to this question would be that she has inherited an interest in a holding not under Section 24 but under Section 22 of the previous Act. In Bank of England v. Vagliano (1891) A C 107, Lord Herschell said:
I think the proper course is in the first instance to examine the language of the statute land to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law and not to start with enquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute intended to embody in a Code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute, critical examination of the prior decisions.
51. This passage was quoted as a guide by their Lordships of the Privy Council in Norendra Nath Sircar v. Kamal Basini Dasi (1896) 23 Cal 563, at p. 571. If I were therefore to examine the language of the statute and to ask what is the natural meaning of the expression:
When a female ex-proprietary, occupancy or non-occupancy tenant who has inherited an interest in a holding under Section 24....
I would say that the natural meaning is that Clause (1), Section 25 can apply only in a case when the death has occurred of a female tenant who has got the holding by inheritance Under Section 24. 'Under Section 24' is either an adverbial phrase or adjectival phrase. If it is an adverbial phrase it obviously modifies the verb 'inherited' If the meaning of Clause (1) is interpreted on the assumption that the phrase under consideration is an adverbial phrase modifying the verb 'inherited,' it is clear that one will have to say that Mt. Champa Kunwar did not inherit under Section 24. If however the phrase is an adjectival phrase, the clause might be paraphrased in the following manner:
52. When a female ex-proprietary, occupancy or non-occupancy tenant who has inherited a Section 24 interest in a holding, I doubt very much if by this paraphrase even it would be possible to explain the expression 'a Section 21 interest: in a holding' as meaning 'an interest- till death or remarriage.' It would once again mean 'an interest acquired under Section 24.' It would not mean 'an interest referred to or recognized in Section 24' without some violence to the natural meaning of the language. It was easy for the legislature to have said who has inherited an interest in a holding under Section 24 or under any previous Act.
53. Such expressions do occur in Section 16 and in Section 14, Clause (4) of the present Tenancy Act, and in Section 14, Clause (c), Act 2 of 1901. The present Tenancy Act does not even contain any provision analogous to the one contained in Section 158, Civil P.C., and it is nowhere stated that, so far as may be practicable, a reference to any section of the present Act shall be deemed to include a reference to the corresponding section of the previous Act; and an Act is not retrospective unless it is specially made so. Further I am of opinion that the expression 'under Section 24' is an adverbial phrase modifying the verb 'inherited' because Section 24 deals with inheritance and not with the interest which an heir acquires. The marginal note to Section 24 says, 'Succession of male tenants' and the marginal note to Section 25 says, 'Succession of female tenants.' This is in clear antithesis to the marginal note of Section 26 Passing of interest by survivorship.' If therefore Section 24 deals with succession, the phrase 'under Section 24' ought to be made to modify the verb inherited instead of converting it into an adjectival phrase and made to qualify the noun 'interest.' To my mind the words are explicit and they, as observed by their Lordships of the Privy Council in Commissioner of Income-tax, Bombay Presidency v. Bombay Trust Corpn. Ltd. 1930 54 Bom 216 at p. 223, must rule whatever may be the general considerations as to what the Legislature was minded or was likely to do.
54. The order of succession mentioned in Section 22 of the former Act or Sections 24 and 25 of the present Act is purely arbitrary and, as observed by Lord Herschell, if one were to be influenced by any considerations derived from the previous state of the law and to start with enquiring how the law, previously stood, then the very utility of a statute codifying a particular branch of law would be destroyed. It is, therefore, perhaps not necessary to enquire into the wisdom of the Legislature in enacting a particular rule of succession, but even if one were to do so no disastrous or anomalous consequence would follow according to my interpretation. The previous Tenancy Act did not prescribe the method of devolution in the case of a female tenant, and as there was some conflict of authority in the cases decided under the former Act it was thought necessary to provide for succession of female tenants specifically, and it did provide for it in Clauses 1, 2 and 3 of Section 25. It is said, as observed by Mr. Openheim in Select Decision of the Board of Revenue No. 3 of 1932, that it was the intention of the section to divide female-tenants into two classes, those with absolute or quasi absolute estates such as Mohammadan widows-who had succeeded under the Rent Act of 1881 or women who had cultivated themselves as non-occupancy tenants for more than 12 years and women with life interests only. This was also the view of Allsop, J., in Jaswant Singh v. Ganga Sahai 1934 All 1042 where the learned Judge observes:
Perhaps Section 25(1) of the Act is not very happily expressed, but I have no doubt at all that it was the intention of the Legislature to-divide female tenants into two classes, namely the class which inherited from male tenants and the class which were tenants in their own. right. I cannot believe that it was the intention of the Legislature without a very clear statement to that effect to change the whole status of every woman who was holding at the date when the Act was passed as an heir to a male tenant.
55. Both the Board of Revenue and the learned Judge then had recourse to Section 6,. United Provinces General Clauses Act,, and said that the Act could not by reason of the said provision operate to the prejudice of the reversioners of the last male tenant or to the prejudice of the landlord existing at the time when the new Act was passed. With great respect I am of the opinion that Section 6, General Clauses Act, does not apply. Section 6, United Provinces General Clauses Act, provides that where any United Provinces Act repeals any previous enactment, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Reversioners and landlords have only inchoate or contingent rights until the succession opens out and such rights are not rights accrued but rather rights which may accrue. It is only vested rights which are protected by Section 6. Arguments based upon the intention of the legislature are really irrelevant, but it is said that
where the main object and intention of a. Statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity or the absolute intractability of the language used.
56. Maxwell in his 'interpretation of Statutes,' Ed. 7, page 198, says:
Where the language of a statute in its ordinary meaning and grammatical construction, leads to...some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether or by Interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify and that the modifications thus made are mere corrections of careless language and really give the true meaning.
57. I am, however, of the opinion that this principle can apply to the facts of the present case only if we were to assume that the real intention of the legislature was to divide female tenants into two classes, namely, the class which inherited a limited estate from males and the class which were tenants in their own right or which had absolute interest. The intention of the legislature might well have been to divide the female tenants into two classes by way of clear dichotomy, namely, those who have inherited under Section 24 and those who did not so inherit. The female statutory tenant and the female heir of a statutory tenant, as a new class of tenants are, also introduced for the first time in the new Tenancy Act. The case of a female heir of a statutory tenant was included in Clause 1 and the female statutory tenant herself was provided in Clause 3. This interpretation, as observed by the learned Chief Justice,
would now bring about a perfect uniformity no matter whether the female tenant is a Hindu, a Mahomedan or Chriatian or belongs to any other sect.
58. There would also be some violence to language in interpreting the expression 'In the case of a widow of Class 2 in Section 24, remarries' occurring in Section 25, Clause (1). It would not be possible to interpret this as including the case of a widow who has inherited an interest similar to that in Section 24. The expression is a rigid one and it applies only to the specific case of a widow of Class. 2 in Section 24 remarrying. One other argument was advanced before me and it was to the effect that if Clause (2) of Section 25 were to apply also to the case of a widow having a life estate only, such as a widow who inherited under Section 22 of the previous Act, the (clause would not be effective, inasmuch as the clause provides that in the case of the death of such a person her interest in the holding shall devolve, and as her interest in the holding was only till death there is nothing which can devolve after her death: but practically the same words are used in Clause (1) which ex-hypothesi applies to the devolution of an interest of a life estate holder. The words there are 'such interest shall devolve,' and if we investigate as to what such interest is we find that the interest which she has inherited is only a life interest. No difference would be made by the saving clause notwithstanding anything contained in Section 35,' for that safeguard applies possibly to surrender or abandonment only. I am, therefore, of the opinion that where a Hindu occupancy tenant died while the Tenancy Act of 1901 was in force and was succeeded by his widow and the widow died after the coming into force of the Tenancy Act of 1926, the succession would be governed by Sub-section 2 of the new Tenancy Act, and that the nearest collateral male relative in the male line of the descent who shared in the cultivation of the last male occupancy tenant at his death would not be entitled to succeed under Section 24 of Act 3 of 1926 or otherwise. For the reasons given above my answers to the various questions that have been referred to me for opinion are
(1) The succession would be governed by Sub-section 2 of the new Tenancy Act.