1. Bama Charan Misra, the common ancestor of the parties to this litigation died leaving five sons, Rarn Gobinda, Radha Gobinda, Broja Govinda, Nil Govinda and Dole Gobinda. The family is admittedly governed by the Mitakshara school of Hindu law. Those five sons lived as members of a joint family. Dole Gobinda had no male issue. He died in September 1928 leaving a widow. Dole Gobinda's interest in the joint ancestral properties accordingly passed by survivorship to his four brothers. At the date of the in stitution of the suit of the sons of Bama Charan only Nil Gobinda was alive. He was, however, then a lunatic, having become insane at a comparatively early age. He died after the decree of the lower Court leaving a daughter and daughter's sons and his sonless widow, Khanta Mayi. Khanta Mayi has been substituted in his place. She is one of the respondents in First Appeal No. 140 and the sole appellant in First Appeal No. 152.
2. Radha Gobinda died without leaving direct male descendants on 5th June 1937 after the Hindu Women's Rights to Property Act (18 of 1937) bad come into operation. The plain, tiff, Srimati Rukmini Debi, is his widow. On 25th February 1939 she instituted this suit for partition. The defendants to the suit were Nil Gobinda, the surviving son of Bama Cha-ran and the male descendants in the direct line-sons and grandsons of the other three sons of Bama Charan. The plaint proceeded upon the basis that the plaintiff's husband was at the time of his death a member of a joint Mitakshara family of which the defendants were the other coparceners. In the plaint she stated that the properties described in Schedules Ka and Kha attached to the plaint were the joint ancestral properties of the sons of Bama Charan and those described in Schedule Ga were their joint self-acquired properties. She claimed one-fourth share in all of them on the basis of Section 8 (2), Hindu Women's Rights to Property Act of 1987 (hereinafter called the Act) and prayed for partition by metes and bounds. The learned Subordinate Judge considered the questions raised by the defendants. He overruled them and declared the plaintiff's share in all the properties to be one-fourth. He passed a preliminary decree for partition on 30th April 1940. He directed the Commissioner of partition to make two allotments one to be allotted to the plaintiff for her one-fourth share and the other to be allotted to all the defendants jointly as representing their three-fourth share. Before him the guardian ad litem of defendant 5 (Nil Gobinda) prayed for a separate allotment but the learned Subordinate Judge refused that prayer. Defendants 1 and 2 (the sons of Ram Gobinda), defendants 3 and 4 (the sons of Broja Gobinda) and defendant 6, a son of de fendant 3 have preferred First Appeal No. 140. First Appeal no. 152 was filed on behalf of defendant 5.
3. None of the parties before us question the findings of the learned Subordinate Judge that the family continued to be joint at the date of the institution of the suit and that Nil Gobinda had a share in all the properties in suit. At the time when the learned Subordinate Judge pronounced his judgment the precise scope of the Hindu Women's Rights to Property Act of 1937 had not been determined. Since then the Federal Court has held in 1. In the matter of Hindu Women's Rights to Property Act, , that that Act has no operation on 'agricultural land' with the result that devolution of such lands would not be governed by the provisions of that Act but by the provisions of Hindu law.
4. After that decision of the Federal Court these appeals were heard by a Division Bench consisting of the learned Chief Justice and Nasirn Ali J. That Bench made an Order on 28th May 1942, under Order 41, Rule 25, Civil P.C. by which the learned Subordinate Judge was directed to take evidence as to each of the items of property mentioned in the schedules attached to the plaint in the following respects: (i) the nature of the land and (ii) the use to which it was put at the time of the death of Radha Gobinda, and to transmit that evidence together with his conclusion as to which of them were agricultural lands. In accordance with this Order the learned Subordinate Judge took evidence. He has forwarded to this Court the evidence recorded by him together with his conclusions thereon which are embodied in his judgment dated 8th August 1942. His general conclusions are as follows: (i) That the rights of tenure holders or niskar dars in agricultural lands cannot be regarded as non-agricultural property; (ii) that the phrase 'agricultural land' means land actually used for the purpose of agriculture or for purposes subservient to agriculture; (iii) that land used for the purpose of raising food crops for the use of men and beasts and for horticultural purposes would be regarded as agri cultural land, but a garden used for the purpose of gathering fruits would not be so regarded.
5. Applying those general conclusions he came to the following findings in respect of the lands held in khas possession by the family, namely (i) that those lands which were cultivated for raising food crops at the time of Radha Gobinda's death were agricultural property notwithstanding the fact that the parties held them in tenure or niskar right and notwithstanding the fact that some of those lands contained minerals underneath, such as lime stone, etc.; (ii) that lands falling under the category of danga (high arable land), patit (waste lands but which can be brought under cultivation) and garlayek patit (waste lands which cannot be brought under cultivation) would have to be considered as agricultural property the last mentioned class on the ground that they were and are used as pasture grounds for cattle which include cattle used in agricultural operations; (iii) that the tanks must be considered as agricultural lands as the waters thereof were and are used for irrigating the agricultural fields, though fish is reared in them, and their banks must also be considered as agricultural property as parts were and are used for raising crops and parts for grazing cattle which include cattle used in agricultural operations; (iv) that the waste lands on which palash trees had grown are to be regarded as agricultural property, as those trees were and are used for 'lac cultivation.' (v) that the garden lands in village Mochra Kend are to be regarded as non-agricultural property as they contained only fruit bearing trees and were not used for horticultural purposes e. g., for raising vegetables; (vi) that dab-sthans (sites occupied by temples) are to bo regarded as non-agricultural property; (vii) that the residential house of the parties and its compound with the paddy morais (store house for paddy) and the cow-sheds and their sites which are within the said compound are non-agricultural property and (viii) that the paddy khamars outside the said compound trad the vegetable garden of the parties are to be regarded as agricultural property.
6. In regard to lands included in the tenancies of under-tenants he observed that the pathways, nullas (water passages) khals and the homestead of tenants would bo regarded as non-agricultcural property, with the result that the plaintiff would be entitled to receive a portion of the rent from those tenants whoso tenancies included both hasil, danga, patit and garlayek patit lands as also items of the above mentioned description, namely homestead, pathways, khals and nullahs. We have to con sider whether the aforesaid conclusions-both general and special-of the learned Subordinate Judge are correct. In view of Order 37-A, Civil P.C. notice was given both to the Advocate-General of India and of Bengal but none of them has taken part at the hearing. Dr. Pal, who has appeared for the plaintiff, has urged two points before us. He says (1) that the first mentioned general conclusion of the learned Subordinate Judge is wrong, and (2) that at any rate the plaintiff is entitled under the Hindu law to one fourth share in the properties described in schedule Ga of the plaint. As the second contention requires the consideration of the few facts we will deal with it first.
7. In para. 1 of the plaint the plaintiff stated that the properties of schedule Ga were the self-acquired properties of her husband and of the predecessors of the defendants. If in fact that was so, the plaintiff would inherit her husband's share under the Hindu law, which on the facts would be not one fourth but one fifth. That statement was not denied in the written statements of defendants 1 to 4 and 6 but defendants 7 to 14 denied the same. No issue, however, was framed in the lower Court and the judgment of the lower Court does not contain a decision on the point. In her deposition, however, the plaintiff admitted that her husband and his brothers had no personal properties and all their properties were either their ancestral properties or acquired by them from out of the income of their ancestral properties. In view of this admission the properties described in schedule Ga must stand on the same footing as those described in schedules Ka and Kha so far as the plaintiff's claim to them is concerned. Lands representing 9 annas share of village Mochrakend were held by the plaintiff's husband and his coparceners in niskar right, that is to say, as rent free tenure, holders. Those are described in detail in schedule Ka of the plaint. Lands representing the remaining share of the said village, which are described in schedule Kha of the plaint, belonged to them in patni taluki right. Some of the lands described in schedule Ga were held by them in tenure (middlemen's) right and some in raiyati right. The properties described in schedules Ka and Kha are the joint ancestral properties of the plaintiff's husband and his coparcenera and those described in schedule Ga are accretions thereto, having been acquired out of the income of the joint ancestral properties. The lands of those three schedules fall within the following classes: Class 1--Landsheld in khas possession of the family. Class 2 Lands let out to under-tenants.
8. Of lands of class l a good area was and is cultivated with food crops, a portion is occupied by tanks and their banks, a portion by vegetable gardens, orchards and a portion by the residential house of the family with its compound and appendages. The rest is waste land, either layek patit (wastes which could be brought under cultivation) or gar layek patit (wastes which cannot be brought under cultivation). Nearly all the tanks were and are used for irrigating the arable fields and probably some wore and are used exclusively for rearing fish and for domestic purposes. Some of the gar layek wastes contain polash trees which produce lac. The lands on which they have grown were and are mostly used as pasture ground. Some of the cultivated lands have minerals underneath, mostly lime stones, but they are not used for working minerals but the surface is used for cultivation. The greater area of lands falling under the second class, e.g., tenanted lands, are arable fields. Portions are occupied by homesteads on which the cultivating tenants have their huts to live in. Portions are pathways khals and nullas or drainage channels. As all the immovable properties were the joint ancestral properties of the plaintiff's husband and his coparceners, or accretions thereto, they would pass under the Hindu law to the plaintiff's husband's surviving brother and to his brother's sons by survivorship. The plaintiff can claim a share therein only by the force of Section 3, Sub-section (2), Hindu Women's Rights to Property Act (18 of 1937). As the word 'property' used in that Sub-section means 'property other than agricultural land' 1. In the matter of Hindu Women's Rights to Property Act, , the plaintiffs cannot get a share in such of the properties described in the plaint as can be regarded as 'agricultural land.' The question therefore in the appeal is what meaning should be attributed to the phrase 'devolution to agricultural land' used in item 21 of List 2 of schedule. 7, Constitution Act.
9. The Provincial Legislature has the exclusive power to pass laws relating to 'devolution of agricultural land and on subjects mentioned in that item. But 'jus descendit ct non terra' the right descends and not the land (Coke on Littleton, Section 345). That subject therefore means that the Provincial Legislature has the exclusive power to pass laws dealing with succession to rights in agricultural land. Moreover, Parliament knew that in India a great deal of sub-infeudation exists in respect of agricultural land and by giving the Provincial Legislature the exclusive power to legislate in respect to devolution of agricultural land it could not have intended to confer the power to legislate only in respect of the lowest grade of interest in agricultural land that of the raiyat or under.raiyat only. We hold that the phrase 'agricultural land' includes any interest in agricultural land whether that interest be that of the superior proprietor, namely the zamindar, or of the tenure-holder, under-tenure-holder or of the raiyat or under-raiyat. If the physical object be agricultural land it is the Provin cial Legislature and the Provincial Legislature only which can make laws dealing with succession to the rights in which such land is held. A tenure-holder, be he a niskar or a mukarari mourashidar or a patnidar or a non-permanent tenure-holder, is not an ijardar or mere farmer of rent. He has a proprietary interest in the land which is comprised in his tenure. If his tenure comprises agricultural land and if he is a Hindu his rights therein would devolve on his death not in the manner provided for in the Hindu Women's Eights to Property Act of 1937 or 1938 but by the rules of Hindu law of that School by which he was governed at his death till the time the Bengal Provincial Legislature modified the Hindu Law of Succession. If the tenure be of a composite nature consisting of agricultural land as also non-agricultural land, the right in the agricultural portion would at the present time devolve in accordance with the Hindu law and in the non-agricultural portion according to the provisions of the aforesaid Act. The observations of the Federal Court in 2. Megh Raj v. Allah Rakhia ('42) 29 A.I.R. 1942 F.C. 27, at p. 61 lend support to the view we are taking. There the Federal Court held the phrase 'agricultural land' tomean 'rights in or over agricultural land,' and the right of a tenure-holder, whose tenure comprises agricultural land, can certainly be described as right in or over agricultural land. The Central Legislature has therefore no power to make laws regarding succession to rights in or over agricultural land, and as a legislative body must be presumed to have legislated intra vires, we must hold that the word 'property' used in Act 18 of 1937 means property in non-agricultural land. We cannot, therefore, accept the contention of the plaintiff's advocate that as a tenure-holder is middle man whose right is primarily to collect rent from the occupying tenants, his right is to be considered as property within the meaning of Section 3 (2) and so would devolve on his death according to the provisions of Act 18 of 1937,-though his tenure comprised agricultural lands only. The physical character of the land included in the tenure must, in our judgment, determine the Rule of succession whether succession would be in ac cordance with that Act or according to the rules of Hindu law, as long as the Pro vincial Legislature does not pass the law regulating devolution of 'agricultural land' held by Hindus. We must accordingly consider what should be the physical character of the land so that it may be classed as agricultural land within the meaning of item 21 of List II. This question was raised in Megh Raj v. Allah Rakhia ('42) 29 A.I.R. 1942 F.C. 27, and was discussed at some length by the Federal Court but final opinion was reserved.
10. Lands actually used for raising by cultivation food crops for men and beasts, as also other crops like jute, hemp, cotton and flax marketable commodities raised by the labour of man are no doubt agricultural lands. Lands which are used for purposes accessory to cultivation would, in our judgment, also be considered as agricultural lands-the threshing floor, irrigation tanks, land containing cattle sheds for plough cattle etc. We would also hold that the site of the hut, where the cultivator lives, is to be considered as agricul tural land for the purpose of item 21 of List II Where, however, a piece of land is not being actually used but is lying waste, its general nature and character must be the determining factor. Surroundings and situation would have an important bearing in such cases. A piece of fallow land in the middle of agricultural fields would have to be taken as agricultural land, for it is capable of being brought under tillage and would in all probability be brought under tillage and not used for building a residential house, if in future it is to be put to beneficial use. We would further hold that the general or wider and not the narrower meaning of the term 'agriculture' should be adopted. That general meaning as stated in Oxford Dictionary, vol. 1, p. 191 is
the science and art of cultivating the soil; including the allied pursuits of gathering in the crops and rearing live stock, tillage, husbandry and farming (in the widest sense).
11. Lands used or lands though lying unused, but capable of being used, having regard to its general nature and character, for raising through the labour of man, food for men and beasts, food grains and vegetables and fodder, and other marketable commodities like cotton jute, hemp, flax etc., lands used as orchards, or for farming purposes, i. e., for raising or feeding of cattle and other live stocks as also lands used as accessory to the above purposes, e. g., irrigating tanks and sites used for the farmer's residence should be regarded as agricultural lands. Dwelling houses other than those used for residence of cultivators or farmers should be regarded as non-agricultural property. Within the term dwelling house must be included not only the structure used for residence and its site, but also adja cent buildings or outhouses, curtilage, garden, court-yard, orchard which is within what can be regarded as the compound of the house, and all that is necessary for the convenient use of the house. Lands which are being actually worked for minerals would be regarded as mines and so non-agricultural property, as also lands covered by forest, on the ground that forest produce is not raised by human labour. Possibly land used for planting trees for being used for fuel would be regarded as non. agricultural land as was held in 3. Chandrasekhara v. Duraiawami ('31) 18 A.I.R. 1931 Mad. 659, Till the Provincial Legislatures legislate on the lines of Act 18 of 1937 and the amending Act of 1938, there would arise anomalies and difficulties in the matter of succession but the adoption of the wider import for the term 'agriculture' would reduce the anomalies to a great extent, and that is one of the main reasons why we adopt the wider meaning.
12. Applying what we have laid down above to the facts of this case, we hold in agreement with the lower Court that the items of pro perty mentioned at pages 48 to 50 of the judgment of the lower Court dated 8th August 1942 (as printed in the paper book) are 'agricultural lands.' We, however, differ from that Court on the following matters: As the plaintiff led no evidence, the homesteads of under-tenants would not be excluded from the category of 'agricultural land.' They may as well be, and possibly the majority are homesteads of cultivators. Gardens and orchards which are outside of what can be regarded as the compound of the residential house of the parties to the suit would not be excluded from the category of 'agricultural land;' nor would pathways, khals and nullas, for they can be regarded as necessary accessories to agricultural lands. Subject to the aforesaid modification, the findings of the Subordinate Judge are confirmed. The plaintiff's one-fourth share is declared only in the dwelling house and its compound and all that appertain to it-that is to say to the house and its site and in the adjoining structures and their sites including cow-sheds, and C.S. dag no. 1565 of village Mochrakhend which contain the morais to the tanks, garden and orchard within the compound of the house and to the debasthans and their sites. The debasthans and their sites can not be partitioned. She will be entitled to have partition of her share in the dwelling house and its compound with the appurtenances by metes and bounds. The dwelling house would not be taken to include the vegetable garden in C.S. dag No. 1553 of village Mochrakhend and the khamer shown in the sketch map mentioned at p. 46 line 27 of the judgment dated 8th August 1942 as printed in the paper book. The appeal is allowed to the extent indicated above. The parties would bear their respective costs in this Court and in the Court below up to this stage.
13. F. A. No. 152 of 1940-This appeal was preferred by the lunatic, Nilgobinda. He died on 2lst September 1942 during its pendency without male issue. His widow Khantamoni, has been substituted in his place. The appeal is directed against that part of the judgment and decree of the learned Subordinate Judge dated 80th April 1940, by which his claim to get a separate allotment was refused. The learned Subordinate Judge held that Nilgo binda, though a lunatic, was entitled to a share in all the properties mentioned in the plaint. That finding has not been challenged before us. By reason of declaration of shares in the preliminary judgment and decree of the learned Subordinate Judge dated 30th April 1940, the property which belonged to her husband became his separate property from that date and therefore his share in all the properties in suit has devolved upon his widow under the Hindu law. She has thus acquired one-fourth share in some and one-third share in the rest. The question, therefore, is whether her claim to a separate allotment can be allowed. The reason, assuming it to be sound, given by the learned Subordinate Judge for refusing a separate allotment to her husband has disappeared with his death. A Hindu female, who has a widow's estate, is entitled to bring a suit for partition and to have her share separated by metes and bounds. It is also an established principle that a co-sharer, be he or she a plaintiff or defendant in a suit for partition, is entitled do claim a separate allotment at any stage before the final decree. The other defendants do not resist her claim to a separate allotment to those properties in which the plaintiff has a share. Their contention is that there cannot be in this suit parti tion by metes and bounds of those properties in which the plaintiff has no share and so in those properties neither Nil gobinda's widow nor any one of the other defendants can claim separate allotment. They contend that for partitioning those properties by metes and bounds a separate suit must be brought. We cannot accede to that contention. In this suit the question of title has been gone into and the result of our judgment is (1) that in some items of property, e.g., the dwelling house and its appurtenances and in debsthans the co-owners are the plaintiff and the defendants and that (2) in the rest of the properties in suit the co owners are the defendants only. As a result of our findings the shares of the parties in the first mentioned properties are as follows: (a) plaintiff-one fourth share (b) defendants 1, 2, 13 and 14-one fourth share (c) defendants 3, 4 and 6 to 12-one fourth share, and (d) defendant 5's widow- one fourth share; and the shares of the par ties in the remaining properties in suit are as follows: (a) defendants l, 2, 18 and 14 one third share (b) defendants 3, 4 and 6 to 12- one third share and (c) Khantamoyi (defendant 5's widow)-one third share.
14. We do not see any reason why we should drive the parties to a separate suit for partitioning the properties of the second class by motes and bounds when that can be done in this suit without greater expense or trouble. It is on the principle of shortening litigation by the avoidence of multiplicity of suits that we direct the partition by metes and bounds amongst the defendants of the rest of proper. ties mentioned in the plaint in which the plain-tiff has no share. Only debasthans, pathways, khals and nullas and such other properties which by their nature cannot be partitioned by metes and bounds or which for the convenience of parties or for other reasons should be kept joint will not be partitioned, but the rest of the property must be partitioned, and Khantamani as well as such of the other parties, who may so desire, be given separate allotments. The decree of the Subordinate Judge is modified accordingly. In this appeal also the parties must bear their respective costs throughout up to now. The costs of the final decreee would be borne by the parties according to the value of their shares. As the case involves a substantial question as to the interpretation of the Government of India Act, 1935, we certify that it is a fit case for appeal to the Federal Court.