1. These are two second appeals. One Mukand Singh was an occupancy tenant of a certain holding. He died and was succeeded by his widow Mt. Kausilya some time before the new Tenancy Act came into force in the year 1926. Mt. Kauailya died at the end of the year 1927. It was then found that two persons Pirthi Raj and Jaswant Singh were in, possession of the holding. The zamindar sued to eject them as trespassers. They claimed to be tenants on the ground that one of them, Pirthi Raj was the son of Mukand Singh's daughter, and the other Jaswant Singh was the nephew of Mukand Singh, and that they had been in joint cultivation of the holding with Mukand Singh and with Mt. Kausilya. An issue was referred to the Revenue Court as to whether these two persons were tenants. I may mention that each of them was a defendant in a separate suit. The Assistant Collector held that they were not in joint cultivation with Mukand Singh and that they were not tenants as the tenancy did not descend to them under the provisions of the Tenancy Act. This question of fact was the subject of an appeal, and the appeal has been dismissed. It is therefore not open now in this Court to the appellants to say that they were in joint cultivation with Mukand Singh They however took a legal point in the lower appellate Court and they pressed that point here that the holding would devolve upon them even if they were not in joint cultivation with Mukand Singh, provided that they ware in joint cultivation with Mt. Kausilya. The lower appellate Court pointed out that this contention should have been raised in the Court of the Assistant Collector, and I am in agreement with the lower Court upon this point. The question in the Court of the Assistant Collector was whether these appellants were tenants or not. If they claimed to be tenants, because they were in joint cultivation with Mt. Kausilya, they should have raised that point and proved their contention. In my opinion it is too late for them to raise the point now.
2. I may however also add that I am not in agreement with the legal argument which is advanced. This argument depends upon the construction of Sections 24 and 25, Agra Tenancy Act of 1926. Under Section 24 are set forth the various heirs in order of succession to a male ex-proprietary or occupancy tenant. In Section 25(1) it is stated that when a female tenant, who has inherited an interest under Section 24, dies or surrenders or abandons such an interest or re-marries, the interest shall devolve upon the nearest, surviving heir of the last male tenant, in Section 25(2) the succession to a female ex proprietary or occupancy tenant, other than a tenant to which Section 25(1) applies, is set forth. The argument here is that this Mi. Kausilya did not inherit an interest in the holding under Section 24, because Section 24 was not in force when she acquired her rights and consequently that she is a person to whom Section 25(2) applies. 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. It would be contrary to the provisions of Section 6, United Provinces General Clauses Act, to construe the terms of Section 25(1) Agra Tenancy Act, in this sense. I have no doubt that what the legislature meant to say was that the provisions of Section 25(1) should apply to the cases of all female ex-proprietary tenants who had inherited under Section 24 of the Act or under the corresponding section, namely, 22 of the Act, which previously had been in force. In my opinion, on Mt, Kausilya's death, the tenancy would devolve on the persons who were entitled to inherit from her husband, and the appellants have been found not to have been such persons.
3. The appeal fails and is dismissed with costs. Permission for a Letters Patent appeal is refused as the appellants should have taken their point in the Court of the Assistant Collector. No reliance can be placed on a finding of fact which was not understood at the time to be relevant to the decision.