Kanhaiya Lal, J.
1. The dispute in this appeal relates to an occupancy-holding which belonged to Sital and devolved on his death, on his widow, Musammat Bundao. Musammat Bundao died in 1318 Fasli. She left a daughter, Musammat Munni, who had a son Mahadeo, Mahadeo died in 1320 Fasli leaving two sons who are the present plaintiffs-respondents.
2. The allegation of the plaintiffs was that they were minors when Mahadeo died and that their mother Musammat Phul Jhari asked the defendant to manage the cultivation on their behalf. Their complaint was that the defendant was not giving to them an account of the profits. The suit was accordingly brought for possession of the said occupancy holding with mesne profits from 1320 Fasli to 1326 Fasli.
3. The Trial Court dismissed the claim, holding that the plaintiffs had no title, because their father, Mahadeo, was not joint in cultivation with Musammat Bundao and Sital and had not acquired any right to succeed to the occupancy holding of Sital or, Musammat Bundao under Section 22 of the Agra Tenancy Act, II of 1901. It also held that the defendant, who was a distant cousin of Sital, was a sharer in cultivation with Mussammat Bundao in her life-time. The lower Appellate Court, however, came to the conclusion that the rights of Sital lapsed on his death, which took place when Act X of 1859 was in force, that after his death Musammat Bundao acquired occupancy rights in herself by virtue of long occupation and that Mahadeo was joint in cultivation with her and became entitled to the occupancy holding on her death under Section 22 of the Agra Tenancy Act, II of 1901. In regard to the defendant it was of opinion that he managed the cultivation during the life-time of Musammat Bundao and had acquired no right by virtue of Such management. There was a further finding that the plaintiffs had not been out of possession for more than 12 years and that the claim was not barred by limitation. The claim of the plaintiffs for possession of the occupancy holding was accordingly decreed.
4. On behalf of the defendant-appellant it is urged that Musammat Bundao was only a life-tenant, and that on her death the occupancy holding could not devolve on the plaintiffs, because their father, Mahadeo, was not a sharer in cultivation with Sital, the original tenant. It is also urged that if Musammat Bundao was not a life-tenant but an occupancy tenant in her own right, the plaintiffs. still would have no right, because Section 22 of the Agra Tenancy Act, II of 1901, would be inapplicable, and that the person entitled to inherit the holding under the Hindu Law would be her daughter, Musammat Munni, who was alive. Neither of these contentions can, however, be accepted. The holding belonged to Sital and devolved on his death on his widow, Musammat Bundao. Sital was recorded as a tenant in the Settlement of 1839, but in the Settlement of 1869, the tenancy was recorded in the name of his widow, Mussammat Bundao. Section 6 of Act X of 1859 provided: 'Every raiyat who has cultivated or held land for a period of 12 years has a right of occupancy in the land so cultivated or held by him, whether it be held under patta or not, so long as he pays the rent payable on account of the same.' It also declared: 'The holding of the father or other person, from whom a raiyat inherits, shall be deemed to be the holding of the raiyat within the meaning of this section.' It obviously contemplated that the tenancy was heritable so long as it lasted, and that the person, who inherited the holding, was entitled to tack on the period of his occupation to the period during which the person from whom he inherited the holding was in occupation. It did not provide any special rule of succession, varying the Hindu Law. The Hindu Law of Succession was, therefore, except in so far as it was modified by usage, applicable to such holdings. In Doorga Pershad v. Dochur Pershad 3 Arga H.C.R. 188 and Pem Kooer v. Upper Balee Singh N.W.P.C.R. 86 it was held that on the death of a raiyat, having a right of occupancy, a son or other immediate heir may succeed to his holding by right of inheritance, if he were residing with him in the village and not elsewhere, and that succession might not extend to remoter heirs, if they did not so reside with the raiyat in the village. This usage, judicially recognised, found expression in Section 9 of Act XVIII of 1873, which provided that when an occupancy tenant died, his right shall devolve as if it were land, provided that no collateral relative of the deceased, who did not then share in the cultivation of his holding, shall be entitled to inherit the holding. Section 9 of Act XII of 1881 contained a similar provision. Musammat Bundao died after the Agra Tenancy Act, II of 1901, came into force, which altered the rule of succession by providing that the holding of such a tenant shall devolve on his male lineal descendants in the male line of descent; failing such descendants, on his widow till her death or re-marriage; and failing such descendants and widow, on his brother, being a son of the same father as the deceased; and failing any such heirs, as above-mentioned, on his daughter's son provided that such daughter's son shared in the cultivation of the holding at the time of the tenant's death; and in default of the daughter's son, the holding was to go to the nearest collateral male relative in the male line of descent subject to the same condition. Whether the occupancy holding was acquired in the lifetime of Sital or in the life-time of Musammat Bundao, it devolved on the death of the latter on her daughter's son, Mahadeo, who was a co-sharer with her in her cultivation, though he was born after the death of Sital, the original tenant. If the holding was acquired in the life-time of Sital, Musammat Bundao would still be treated as an occupancy tenant, because she was liable to, pay rent for the occupancy holding, and as such the tenancy would devolve on her death on her daughter's son, provided he was a sharer in the cultivation with her at the time of her death. It is not necessary that he should have been a sharer in the cultivation with Sital, because Sital was not the last tenant. A widow who succeeds to an occupancy holding on the death of her husband may not have anything more than, a life-interest therein; but she would be an occupancy tenant for the time being and the succession would open out on her death to the heirs of the last male-holders and would go to the persons entitled under. Section 22 of the Agra Tenancy Act II of 1901 and then in existence, provided that if those persons are the daughter's sons or collateral male relatives in the male line of descent, they must be co-sharers in the cultivation of the holding at the time when the last occupant died. The learned Counsel for the defendant-appellant has referred to the decisions in Bisheshar Ahir v. Dukhran Ahir 32 Ind. Cas. 771 : 38 A. 1971 : 14 A.L.J. 127 and in Bechu Singh v. Baldev Singh 65 Ind. Cas. 507 : (1922) A.I.R. (A) 84. In the former case it was held that Section 22 of the Agra Tenancy Act, II of 1901, was not intended to provide for the devolution of the interest in an occupancy holding where it was, at the passing of the Act, in the possession of a Hindu female as such and it was further held that the rights of the parties claiming such holding on the death of the last female occupant would have to be ascertained according to the Hindu Law. In the latter case it was held, under somewhat similar circumstances, that the succession would be governed by the Hindu Law as modified by Section 9 of the old Rent Act, XII of 1881, and that the reversioners would not be entitled to succeed to the tenancy unless they had shared in the cultivation with the deceased tenant. A tenant is. however, defined by the Act as a person liable to pay rent and as the last occupancy tenant was Musammat Bunda and Mahadeo was a co-sharer in the cultivation with her, the plaintiffs would be entitled to the holding as his sons. Mussammat Munni has not set up any title or claim to the occupancy holding; and even if the Hindu law be applied, as modified by Section 9 of the old Rent Act, XII of 1881, her omission to assert any claim since 1318 F. would be treated as a withdrawal or renunciation by her of her right in favour of her son and grand-sons to the exclusion of the defendant. A reference has also been made to the decision in Hi mat Singh v. Hulas Singh 26 Ind. Cas. 23 : 18 C.W.N. 1138. In that case the persons who were claiming the occupancy holding were not collateral relations of the widow and were not joint with the original occupancy tenant nor had they any right whatsoever to succeed to the holding.
5. On behalf of the plaintiffs-respondents reliance is placed on Manpal Singh v. Raj Partab Singh 65 Ind. Cas. 824 : 44 A. 376 : 20 A.L.J. 181 : (1922) A.I.R. (A.) 31. That decision would be applicable, if Musammat Bundao be deemed to have acquired the occupancy holding in her own right and would equally occlude the defendant-appellant, who was merely managing or looking after the cultivation on her behalf.
6. The appeal, therefore, fails and is dismissed with costs including in this Court fees on the higher scale.