1. This is an appeal by the defendants. The suit was for a declaration that a compromise entered into on 28th March 1933, in a suit under Section 123, Agra Tenancy Act, in the Court of the Assistant Collector in charge of the sub-division, filed by Rambujh Dube and Mt. Surajpati against Mt. Maharaji, would not be binding on the plaintiff and would not affect his rights on the death of Mt. Maharaji, defendant 1, because Rambujh Dube and Mt. Surajpati Kunwar, defendants 3 and 4, are persons who have no right or interest in the tenancy in question. The Court of first instance dismissed the suit, but on appeal by the plaintiff, Mangai Pande, the suit has been decreed by the lower Appellate Court. The following pedigree shows the relationship of the principal parties:
Bhagwan Pande Dhaneshar Pande
| = Mt. Maharaji, deft. 1
Mangai Pande, |
plaintiff. Mt. Surajpati, deft. 4
Rambujh Dube, deft, 3.
2. The landholder, Syed Mehdi Hasan, has been impleaded as defendant 2. Bhagwan Pande seems to have died during the lifetime of his father. Ramghulam Pande had acquired occupancy rights in the holding in question. He and his descendants were obviously members of a joint Hindu family. On his death the occupancy rights devolved on his son, Dhaneshar Pande, and grandson, Mangai Pande. It is not alleged that these two, uncle and nephew, were not members of a joint Hindu family. Dhaneshar Pande died in 1929 and his interest in the holding devolved on his widow, Mt. Maharaji, under Section 24, Tenancy Act. Thus, Mt. Maharaji and Mangai Pande became joint holders of the occupancy tenancy in question. Some time later Mt. Maharaji seems to have entertained the idea of taking steps to pass on the interest, which she had inherited for her life from her husband, to her daughter and her daughter's son. In furtherance of this scheme she took proceedings in the Revenue Court against Mangai Pande under Section 37, Tenancy Act, for a division of the holding and obtained a decree to that effect. Subsequently, a suit was filed in the Revenue Court by Rambujh Dube, a minor under the guardianship of his mother, and by his mother, Mt. Surajpati, under Section 123, Tenancy Act. Mt. Maharaji and the landholder, Sayed Mehdi Hasan, were impleaded as defendants to that suit. It is in this suit that the compromise which is impugned by the plaintiff, Mangai Pande, was arrived at. It was agreed between Rambujh Dube and Mt. Surajpati Kunwar, on one side, and Mt. Maharaji and Sayed Mehdi Hasan, on the other, that the minor, Rambujh Dube, was to be recorded as an occupancy tenant along with Maharaji Kunwar in respect of those plots which were being cultivated by her ia consequence of the decree for division of the holding passed in the suit under Section 37. This compromise was entered into on 28th March 1934, and the plaintiff filed the suit which has given rise to this appeal shortly afterwards.
3. The plaintiff's contention was that he and his uncle Dhaneshar Pande were joint tenants of this holding, that Mt. Maharaji succeeded only to a life-interest under Section 24, Tenancy Act, that as a person jointly cultivating the holding along with his uncle, Dhaneshar Pande, he, the plaintiff, was a sharer in the cultivation of the holding at the time of Dhaneshar Pande's death, that Rambujh Dube being a mere infant in arms at the time of Dhaneshar Pande's death could not, and did not, share in the cultivation of the holding with Dhaneshar Pande, and was thus no heir of Dhaneshar Pande, that therefore the plaintiff was entitled to succeed to the interest of Dhaneshar Pande in the occupancy holding in question on the death of Mt. Maharaji and that the entire proceedings taken under Section 123 of the Act and the compromise arrived at were collusive and illegal and could not affect his rights. It was further contended by him that the division of the holding under Section 37 between him and Mt. Maharaji, brought about at the latter's instance, only altered the mode of enjoyment of the holding and could not affect his rights. These contentions of the plaintiff have been accepted by the lower Appellate Court. Having heard learned Counsel for the defendant-appellants, we have come to the conclusion that the view taken by the lower Appellate Court is perfectly correct.
4. To begin with, it is difficult to see what possible locus standi could Rambujh Dube and his mother, Mt. Surajpati, have had for filing a suit under Section 123, Tenancy Act. It seems to us to be quite clear that those proceedings were entirely collusive. The lower Appellate Court has further found that Rambujh Dube was barely two or three years old at the time of Dhaneshar Pande's death in 1929. His age given in the plaint, which was filed in 1934, is five years. It is obvious therefore that Rambujh Dube could not have shared in the cultivation of the holding and is not entitled to inherit the tenancy. The plaintiff, Mangai Pande, is in our opinion, clearly entitled, by reason of the fact that he shared in the cultivation of the holding at the time of Dhaneshar Pande's death, to succeed to Dhaneshar Pande's interest on Mt. Maharaji's death. We also agree with the view of the lower Appellate Court that the division of the holding under Section 37 cannot affect the plaintiff's right of succession. The lower Appellate Court has referred to the case in Behari v. Mt. Muthra : AIR1933All55 . That decision fully supports the view taken by the lower Appellate Court and we agree with it. The appeal is without force. Accordingly we dismiss it with costs.