1. This is a plaintiffs' appeal and arises from a suit for possession of an occupancy holding. Both the Courts below have dismissed the, plaintiffs' suit. It is common ground, that the occupancy holding in question, originally belonged to one Lallu Singh, who died in 1901 and was succeeded by his widow Nidhao. The latter remained in possession of the occupancy holding till her death in 1919. The plaintiffs alleged that their grand-father, Bahadur, was the nearest collateral of her husband alive at the time of Mussammat Nidhao's death and that he inherited the tenure. The defendants are also collaterals of Lallu, being the sons of one Janki. They are certainly nearer than the plaintiffs; but the plaintiffs' case is that their grandfather Bahadur inherited the tenure on the death of Mussammat Nidhao, when the defendants' father Janki had died. Janki and Nidhao were brothers. The lower Courts have found, or at any rate assumed, that Bahadur was the nearest collateral alive on the death of Lallu; but they have dismissed the plaintiffs' suit on the ground that they failed to establish that Bahadur was joint with Lallu in cultivation of the holding and that, Bahadur could not inherit having regard to the provisions of Section 22 of Act 2 of 1901. The learned Advocate for the appellants points out that Lallu died before the Act 2 of 1901 vyas passed, and consequently succession to him was not subject to provisions of that Act.
2. Act 12 of 1881 did not lay down any rule of succession such as is mentioned in Section 22 of Act 2 of 1901. It merely provides that 'the right of an of occupancy tenant shall devolve, as if it were land.' This implies that the same rule of succession is to apply to occupancy tenures as to any other land, i.e. in case of Hindus the Hindu Law; but there was an important proviso.
That no collateral relative of the deceased who did not then share in the cultivation of his holding shall be entitled to inherit under this clause.
3. The result is that the Hindu Law as modified by the proviso to Section 9, was applicable to the occupancy holding left by Lallu. The widow remained in possession till 1919, when Act 2 of 1901 was in force. That Act lays down a line of succession providing, inter alia, that the occupancy tenant's widow shall be in possession of the holding 'till her death or re-marriage.' Like Section 9 of the older case, there is a proviso that
No collateral relative shall be entitled to inherit in the cultivation of the holding at the time of tenant's death.
4. Though Section 22 of Act 2 of 1901 lays down rules of succession, it makes no difference so far as the present case is concerned. Whether Act 12 of 1881 or Act 2 of 1901 be applied, in either case the widow of Lallu was entitled to remain in possession for her life, and succession opened on her death. The lower Courts dismissed the plaintiffs' claim on the ground that they, or their grandfather Bahadur, did not share with Lallu in the cultivation of the occupancy tenure. I think that this view is correct. Before collaterals, who claim an occupancy tenure after the determination of the widow's intervening estate, can succeed, they must establish that they had shared in the cultivation of the holding at the time of the tenant's death. Learned advocate for the appellants contends that all that was necessary for the plaintiffs to show was that they had shared in the cultivation of the holding at the time of the widow's death. The argument is based on the assumption that the expression 'the tenant' is comprehensive enough to include the widow who paid rent to the proprietor. This view finds some support from Bhawani Bhikh v. Sidh Narain 1923 All. 18. It is however opposed to a decision of a Division Bench of this Court in Bechu Singh v. Baldeo Singh 1922 All. 84. It is clear to my mind that the proviso requires jointness in cultivation at the date of the last male occupancy tenant, whose line of succession is given in Section 22. It may be, as pointed out by learned advocate for the appellants, that, where the widow's life estate intervenes and the widow proves to be long lived person, it is almost impossible for collaterals to establish that they had shared in the cultivation of the holding at the time of the last male tenant's death. The Courts have to administer the law as they find it. It is for the Legislature to remedy the defect, if any.
5. On the question of fact whether the plaintiffs' grandfather Bahadur or the plaintiffs shared with Lallu in the cultivation of the occupancy holding the finding of the lower appellate Court is conclusive. That Court held that
There was practically no evidence in the record to show that the plaintiffs or their father and grandfather were ever joint in cultivation with Lallu Singh himself during his lifetime.
6. Learned advocate for the appellants contends that this is no finding, as it contains no discussion of evidence and does not take into account Khewats and Khasras. There can be no discussion of evidence where there is none. As for Khewat and Khasras it is not suggested that they contain any entries pointing to the conclusion that the plaintiffs' grandfather and Lallu had anything in common as regards the cultivation of this occupancy tenure. I think the finding is one of fact and must be accepted in second appeal, which is accordingly dismissed with costs.
7. These cross-objections arc directed against the findings of the lower Courts and do not attack any part of the decree appealed from. They are not maintainable and are dismissed with costs.