1. The plaintiff, Musammat Ramman Bibi, is the zemindar of the village Amrauli. A certain Hari Ram residea in Amrauli as an agricultural tenant. He occupied a dwelling house in the abadi and he was the holder of a certain grove with, the rights of a tenant grove-holder. It is alleged that he owed money on a deed to a certain Mathra Prasad. Hari Ram died. At the time of his death it was alleged that he had not satisfied the amount due to Mathra Prasad. Mathra Prasad instituted a suit against a child called Bilaso, who, he alleged, was the daughter of Hari Ram in respect of the amount which Hari Ram, was alleged to have owed him. He obtained a decree against the assets of Hari Ram in the hands of Bilaso. I am unable to ascertain whether this decree was obtained ex parte or after contest. In execution of that decree he brought to sale the interests of Hari Ram in the house and grove. They were purchased by Lachmi Narain brother of Mathra Prasad. Lachmi Narain is now in possession of those interests. The plaintiff instituted a suit against Mathra Prasad and Lachmi Narain for possession of the house and grove, her case being that Bilaso was not the daughter of Hari Ram; that Hari Ram had died without heirs or successors, and that she as zemindar had succeded to the house and grove upon his death. Mathra Prasad and Lachmi Narain contested the suit. Bilaso was not a party. The Courts below have arrived at a concurrent finding of fact to the effect that Bilaso was not the daughter of Hari Ram and that Hari Ram died without heirs or successors. The Trial Court decreed the suit in full. The learned District Judge considered that the plaintiff as zemindar could only succeed to the house and grove on condition of paying off the debts of Hari Ram. He accordinly made her success conditional on the payment of those debts with the result that he awarded the materials of the house to the purchaser and awarded him the grove in consideration of the fact that the value of the materials ana the grove together were less than the debts due from the deceased.
2. The plaintiff appeals here.
3. The first point taken is this. On the findings of both Courts Musammat Bilaso was not the daughter of Hari Ram, so there is no force in the decree in favour of Mathra Prasad against Bilaso. It was, however, open to the defendants to prove aliunde their debt from Hari Ram. They do not appear to have done so. Had the decision of this appeal turned on that point alone, it might have been necessary to remit further issues for proof upon this point. The non-joinder of Bilaso does not defeat the suit (Order I, Rule 9) and, as I read Order XLI, Rule 20, it is not possible to join her now.
4. But the second point remains. It was decided by their Lordships of the Privy Council in 1876 in Sonet Kooer y. Himmut Bahadoor 1 C. 391 at p. 402 : 3 I. A : 92 : 25 W.R. 239 : 3 Sar. P.C.J. 608 : 3 Suth. P.C.J. 257 : 1 Ind. Dec. (N.S.) 245 (P.C.) that the principles of the English Law of escheat have no application to the case of a Hindu zemindar, although they have application to the case of escheat to the Crown on failure of heirs. It was decided in 1910 by a Full Bench of this Court in Tulsht Ram Sahu v. Gur Dayal Singh 7 Ind. Cas. 231 : 33 A. 111 : 7 A.L.J. 101 : (F.B.) that on the death of a fixed rate tenant without heirs, his tenancy did not escheat to the Crown but reverted to the zemindar. The question whether the zemindar would be liable to pay the debts of such a tenant was considered but not decided in that appeal. Their Lordships in the previous case had decided that an istimrart mokarrari tenure escheated on the death of the last-holder to the Crown and not to the zemindar. The ratio decidendi in this matter is comparatively simple. If an estate is an absolute estate of inheritance it cannot revert in any circumstances to the original grantor for the law regards the Crown as the heir of the last-holder. But if the estate is a limited estate such as a fixed rate tenancy it reverts on the death of the last-holder without heirs not to the Crown but to the zemindar. The circumstance that the interest is transferable will not affect the matter. A fixed rate tenancy is transferable. The right of the tenant to reside in a house in the inhabited site of an agricultural village of this Province and the right of a tenant grove holder to a grove in this particular village are both limited estates.' When the last holder of such a house dies without heirs the house reverts the word escheat should not be used, though it frequently is used in common parlance to express the process) to the zemindar, and in this particular village when a tenant grove-holder dies without heirs, the trees and the land revert to the zemindar. It is good law that, in the case of escheat to the Crown, the Crown is liable to pay off the debts of the last-holder; the Crown is so liable because it succeeds as heirs. But the question which remains to be decided is, does the zemindar succeed as heir? I agree with the learned Counsel for the appellant that he does not succeed as heir. The zemindar has divested himself both in the case of the house and the grove of his interest in the property for a period which terminates when the last holder dies without heirs. This period may be indefinitely prolonged but nevertheless it is a terminable period and the estate is a limited estate. It could not be questioned that if a zemindar divested himself or his title and property for a definite term of years, the interest returning to him absolutely at the end of that term of years; the holder of the limited interest could not encumber mote than the limited interest, and in no circumstances could the zemindar be held responsible for the debts of the last holder. It appears to me that the same rule mast be applied in the case of all limited estates and that, therefore, the zemindar is entitled to recover the house and the grove absolutely on the death of the last holder without heirs.
5. I, therefore, allow this appeal. I set aside the decree of the learned District Judge and restore the decree of the learned Munsif. The defendants-respondents will pay their costs and those of the plaintiff-appellant in all Courts. These costs will include in this Court fees on the higher scale.