1. The following question has been referred to this Bench for opinion by one of us (Tare, J.) :
'Whether the question whether Gunhari and Sitaram inherited the tenancy lands of their father before 1897 as tenants-iu-common or as joint tenants ought to be decided on the principle of stare decisis or according to the view of the law declared by their Lordships of the Federal Court in Re Hindu Women's Right to Property Act, 1937, AIR 1941 F. C. 72.'
2. The genealogy of the parties is as under:
(died before 1897)
(died in 1897) (died in 1954)
| | | | | | |
Sumitra Gouribai Hira Janki Deok Rewati Derhin
(died) (Plff. 1) (Plff. 2) (died) (deft. 1) (deft. 2) (died)
| | |
| | Firat Saradabai
Salik Moti (deft. 3) (deft. 4)
(Plff. 3) (Plff. 4)
3. The suit property consisting of occupancy lands originally belonged to Abhinath, who died sometime before the year 1897. It was inherited by his two sons Gunhari and Sitaram, who were members of a joint family. In the year 1897 Gunhari died, leaving three daughters, namely Sumitra. Gouribai and Hira. Thereafter, Sitaram's name was entered in the revenue records as occupancy tenant. In the year 1954, Sitaram died, leaving two daughters, namely, Deoki and Rewati and Firat son of a pre-deceased daughter Janki, as also, Sardabai, daughter of another pre-deceased daughter, Derhin. The respondents filed the present suit after the death or Sitaram, claiming half share as against the daughters and daughters' sons of Sitaram.
4. The defence was that the plaintiffs as daughters and daughters' sons of Gunhari could not claim any share, because, at the. death ot Gunhari. Sitaram, being joint with him, became exclusive tenant, and, as such, he was in possession from the year 1897 to the year 1954, which amounted to the plaintiffs' ouster and constituted adverse possession.
5. The trial Judge upheld the defence contentions and dismissed the suit The first appellate Court reversed the decree of the trial Court.
6. The answer to the question, referred to us for consideration, really depends on the question, as to what rights Gunhari and Sitaram got in the tenancy lands by inheritance to their father. The matter is governed by Section 43(1) of the C. P. Tenancy Act IX of 1883 which is as follows:
'When an occupancy tenant dies his right in his holding shall devolve as if it were land: Provided that, except in the districts of Chanda, Nimar and Sambalpur, a collateral relative of the tenant shall not be entitled to inherit that right, unless at the death of the tenant he was a co-sharer in the holding.'
As regards the phrase 'shall devolve as if it were land', it was urged by the learned counsel tor the appellant that the personal law of the parties was not altogether excluded and that the term 'devolution' included the rule of survivorship under the Hindu law. In this connection he invited our attention to Section 31 at page 23 of 'Principles of Hindu Law, 11th edition by Sir Dinshah F. Mulla. The learned author has discussed the question under the topic 'co-heirs' as follows:
'(1) According to the Mitakhara school two or more persons inheriting jointly take as tenants-in-common except ihe following four classes of heirs who take as joint tenants with rights of survivorship:
(a) Two or more sons, grandsons, and great grandsons, succeeding as heirs to the separate or self-acquired property of their partnal ancestor.
(b) Two or more grandsons, by a daughter, who are living as members of a joint family succeeding as heirs to their ma'ernal grandfather. A recent decision of the Madras High Court has held that in property inherited by two or more daughter's sons from their maternal grand-mother there can be no right of survivorship and the daughter's sons take as tenants in common. The decision in Vankayyamma v. Venkataramanayyamma has been held to be no longer a binding authority on nature and incidents of property inherited by daughter's sons from their maternal grand-father.
(c) Two or more widows succeeding as heirs to their husband.
(d) Two or more daughters succeeding as heirs to their father, except in the Bombay State where they take an absolute estate in severalty.
(2) According to the Dayabhag school two or more persons inheriting jointly take as tenants-in-common, except only (1) widows, and (2) daughters who take as joint tenants with rights of survivorship.'
It is clear that if Hindu law with all its implications were to be applied, Gunhari and Sitaram would be joint tenants after the death of Abhinath and the rule of survivorship would be applicable to them.
7. Their Lordships of the Federal Court, while interpreting the word 'devolution' in Section 5 of the Hindu Women's Rights to Property Act, 1937, held in AIR 1941 FC 72 that the term 'devolution' would include the rule o survivorship. In view of the authoritative interpretation laid down by their Lordships of the Federal Court, no other interpretation is possible as regards the term 'devolution' which, in our opinion, would include the rule of survivorship. But the real question, in the present case. is whether we should adopt the said interpretation or should decide the case on the principle of stare decisis.
8. It is necessary to trace the history of the relevant provisions in the different C. P. Tenancy Acts enacted from time to time. Section 43 (1) of the C. P. Tenancy Act IX of 1883 has already been reproduced earlier. It was, later on, replaced by Section 46(1) of the C-P. Tenancy Act, XI of 1898, which is as follows :--
'When an occupancy tenant dies his right in his holding shall devolve as if it were land
Provided that except in the districts of Cnanda, Nimar and Sambalpur, a collateral relative of the tenant shall not be entitled to inherit that right, unless at the death of the tenant he was a co-sharer, in the holding or unless, failing any such co-sharer, he held land, or was permanently resident, in the village in or from which the holding is cultivated, and is in the male line of descent from an ancestor who occupied the holding.'
In both the Acts, IX of 1883 and XI of 1898. similar provisions were made regarding absolute occupancy holdings. For the first time Section 5 of the C. P. Tenancy Act 1 of 1920 introduced survivorship along with inheritance in cases ot ab-solute occupancy holding. As regards occupancy holdings survivorship was introduced for the first time by the C.P. Tenancy (Amendment) Act XI of1940.
9. The trend of the decisions of the Judicial Commissioner's Court, throughout the period when the rule of survivorship was not made applicable to the tenancy holdings was, not to apply that rule to devolution of tenancy lands. In Ghanye v. Ukund Rao 4 Nag L. R. 9, Stanyon, Additional Judicial Commissioner, while considering Section 43 (1) of the C.P. Tenancy Act IX of 1883 held that the devolution of a tenancy in the Central Provinces was entirely governed by Statute and the fact that the heir selected was in accordance with the personal law of the tenant in some eases, did not make such personal law entirely applicable to the tenant estate. Therefore, the learned Judge excluded the rule of survivorship to devolution regarding tenancy holdings, and opined that a son could not have an interest by birth in the ancestral tenancy lands belonging to the family. The earlier cases, namelv, Anant Ram v. Takatsingh, 4 C P LR 37 and Pancham Singh v. Nankoo Singh 3 Nag LR 182 kad taken the same view. Later in Tekchandv. Tulai, 5 Nag LR 103 Skinner, Additional Judicial Commissioner also took the same view.
10. It is true that Skinner, Additional Judicial Commissioner in Atmaram v. Lala, 7 Nag LR 36 applied another principle of Hindu law in holding that a son joint with his father was entitled to succeed to his father's tenancy rights in preference to a separated son. Subsequently Stanyon, Additional Judicial Commissioner, following the earlier view, held in Bhura v. Ramrao, 8 Nag LR 154 that the interest that a widow, got in her husband's tenancy holding should be deemed to be a limited estate under the general principles of Hindu law subject to all restrictions as to alienations. However, in later cases the rule of survivorship was specifically excluded. In Mt. Gowra v. Chai-tram, AIR 1924 Nag 372 Baker, Officiating Judicial Commissioner, as also in Shanker Rao v. Dau-lat, 27 Nag LR 371: (AIR 1932 Nag 28) Macnair, judicial Commissioner dealing with the earlier case law on the point, excluded the rule of survivorship in the matter of devolution of tenancy holdings and negatived the contention that a son got an interest by birth in the ancestral tenancy holdings. Macnair, Judicial Commissioner in 27 Nag LR 371: (AIR 1932 Nag 28) (supra) applied the principle of stare decisis. In view of the consistent and long standing opinion of the Judicial Commissioner's Court on the subject, Staples, Additional Judicial Commissioner in Kalu v. Mt. Birajbai 29 Nag LR 323: (AIR 1933 Nag 240) preferred to follow the same view, as was enunciated in relation to Section 43 of the C.P, Tenancy Act IX of 1883 and Section 48 of the C.P. Tenancy Act XI of 1898, although that case was governed by Section 11 of the C.P. Tenancy Act I of 1920. At that time occupancy holdings were not governed by the rule of survivorship. In the C.P. Tenancy Act I of 1920, only absolute occupancy holdings were governed by rule of survivorship, by virtue of Section 5.
11. The only case in which a slightly different view was taken by Hallifax, Additional Judicial Commissioner was Barati v. Surit, AIR 1926 Nag 277, wherein the lease taken by the Manager of a joint Hindu family with the family funds was held to be heritable by survivorship. The lease in question was in respect of the occupancy holding and as such governed by Section 11 of the C-P. Tenancv Act I of 1920.
12. The view of the law as was prevalent in the Central Provinces throughout, till introduction of the rule of survivorship by the amending Acts was thus to exclude the rule of survivorship. That was the law prevailing in Central Provinces in the matter of devolution regarding tenancy holdings. The principle of stare decisis is based on the equitable doctrine that parties act on the basis of the view of the law as declared by the law Courts from time to time and if the law has been declared ia a particular way by the law Courts for a long time, which has been the accepted view of that Court, the settled rule should not be unsettled, merely became, subsequently a different view of the law is taken or because the law is amended. It was on that basis that Macnair, Judicial Commissioner applied the principle of stare decisis in 27 Nag LR 371: (AIR 1932 Nag 28).
13. Rao, J. in Kambalnjabai v. Motiram ILR (1953) Nag 653: (AIR 1953 Nag 295) had to consider the right of a joint son in praesenti while challenging the alienation of a tenancy holding made by his father, Rao, J. specifically negatived the contention that Section 7 of the Central Provinces Tenancy (Amendment) Act (XI of 1940) was retrospective. In that case, although when the son was been, the amended Central Provinces TenancyAct was not in force, yet before the alienation was made, the amended Act had come into force. Therefore, the learned Judge was of opinion thator the date the alienation was made by the father, the son could be deemed to have the right to challenge it as the rule of survivorship based on thenotion of coparcenery had been applied by the amended Act before the alienation was effected. But in the present case the question, as we stated earlier, is what rights Gunhari and Sitaram got in the property of their father some time before 1897, when Abhinath died. For this, we are required to look to the state of the law as was understood then. As regards the state of the law prevalent then, there is no doubt that the Judicial Commissioner's Court specifically excluded the rule of survivorship and coparcenery in the matter of devolution to tenancy holdings. As such it could not be said. that Gunhari and Sitaram inherited the suit property as joint tenants after their father's death. They could only inherit as tenants-in-common, with the result that, upon the death of Gunhari, his interest would devolve on his daughters and not on the surviving joint coparcener Sitaram.
14. The first appellate Judge found it as a fact that although the holding was recorded in the name of Sitaram alone after the death of Gunhari the former used to give to the daughters of Gunhari, their share of the crop produce from the holding. The Single Judge, in his order of reference, has confirmed the said finding of fact. This indicates that the parties, for a long time from the year 1897 to the year 1954, acted on the view of the law as declared by the Court of the Judicial Commissioner. Otherwise there was no occasion for Sitaram to give to the daughters of Gunhari their share of the crop produce. Therefore, this case, in our opinion, would be a suitable case tor the application of the principle of stare decisis so as not to unsettle the vested and settled rights of the parties on account of a subsequent authoritative interpretation of the law or on account of the later C.P. Tenancy Amendment Acts introducing the rale of survivorship. We, therefore, answer the reference as below :--
'The ques'ion whether Gunhari and Sitaram inherited the tenancy lands of their father before 1897 as tenants-in-common or as joint tenants ought to be decided on the principle of stare decisis and not on the principle of the general Hindu law or the later exposition of the Hindu law by their Lordships of the Federal Court.'
15. The case shall now be returned to the Single Judge for further decision on merits.
(The appeal went back to Tare J. for decision on merits. Tare J. delivered on 23-2-1959 the following)
16. This appeal by the second defendant is directed against the judgment and decree pass-ed by Shri S. G. Oak, Additional District Judge, Durg, dated 27-2-1956 in Civil Appeal No. 47-A of 1955 reversing the judgment and decree passed by Shri D P. Agarwal, Civil Judge Class II, Durg, on 31-8-1955 in Civil Suit No. 101-A of 1954.
17. The genealogy of the parties is as under :--(After giving here the genealogy which is already reproduced in para 2, the Judgment proceeded.)The respondents 1 to 4 filed the suit for partition and separate possession of the family property to the extent of their half share. The properly consisting of occupancy land originally belonged to Abhinath, who died sometime before 1897. His two sons inherited the property of their faTher. They were joint. In the year 1897 Gunhari died leaving three daughters, two of whom and the sonsof the third are plaintiffs in the present case. The daughters and daughters' son and daughter of Sita-ram are defendants.
18. A Single Bench of this Court by order dated 10-12-1958 referred the following question for consideration by a Division Bench:
'Whether the ques'ion whether Gunhari and Sitaram inherited the tenancy lands of their father before 1897 as tenants-in-common or as joint tenants ought to be decided on the principle ot stare decisis or according to the view of the law declared by their Lordships of the Federal Court in AIR 1941 FC 72?'
The Division Bench answered the reference in the following terms:
'The question whether Gunhari and Sitaram inherited the tenancy lands of their father before 1897 as tenants-in-common or as joint tenants ought to be decided on the principle of stare decisis and not on the principle of the general Hindu law or the later exposition of the Hindu law by their Lordships of the Federal Court.'
19. As per opinion of the Division Bench, the present plaintiffs became tenants-in-common along with the daughters of Sitaram and as such they had a right to claim partition to the extent of their halt share. Therefore, the decree passed by the first appellate Court is correct though for different reasons. The only question now left open tor consideration by the Single Bench is whether the gift deed dated 1-6-1946 (Ex. D. 4) executed by Sitaram in favour of the present appellant could be the starting point of adverse possession so far as khasra Nos. 190, 335, 341, 435, 468 and 908, total area 19.91 acres occupancy right, were concerned. Under Section 12 of the C.P. Tenancy Act. 1920 a tenant was given right to sell his right in his holding to any other person or to transfer it by sale or otherwise, except by a simple mortgage, any right in his holding to any co-tenant or person who if survived without nearer heirs, would inherit his right. Under the said provision, a gift of an occupancy holding could not be recognised as valid. Moreover, a gift of a portion of the occupancy holding held by Sitaram and the daughters of Gunhari as tenants-in-common could not prejudice the rights of the plaintiffs respondents. Moreover, the said gift deed was not proved as required by Section 68 of the Indian Evidence Act as no attesting witness was examined on behalf of the present appellant. Any way the said gift deed cannon prejudice the rights of the plaintiffs-respondents in their present claim for partition of property, as Sitaram was alive till the year 1954 & according to the finding of the first appellate Court, which has been confirmed by this Court, Sitaram used to pay the share of the crop produce to the daughters of Gunhari till his death. It is also significant to note that the present appellant was shown as being aged 9 years in the gift deed dated 1-6-1946. Therefore, she was not placed in physical possession of the fields mentioned in the gift deed nor was she capable of accepting the gift as required by Section 123 of the Transfer of Property Act. At any rate, whatever be her rights on the basis of gift deed, that may be a matter of dispute between the appellant and the other defendants, but that cannot prejudice the rights of the present plaintiffs-respondents to claim half share in the family property.
20. For the reasons aforesaid, this appeal fails and is dismissed with costs. Counsel's fee Rs. 75/-if certified.