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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 92 of 155)
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on the death of his mother. The first Court decreed the plaintiff's claim,
holding in effect that the estate of the widow and the estate of tbe rever-
eioner, Musammat Rukmin, who assented to her making the gift, being
of a limited nature, they between them could not do more than affect their
own limited [379] interests to the extent of anticipating the succession of
Kharak Singh before the time he would otherwise have been entitled to it.
I have considered this view of the matter, which has been supplemented
by the able argument of Mr. Banerji in support of appeal, and it certainly
appears to me to be in harmony with the view expressed by the Full
Bench of this Court in Ramphal Rai v. Tula Kuari (1). Mr. Sundar
Lai has contended that the estate of a Hindu widow in possession
is not of such a limited character as is contended for, and that for certain
recognized purposes sanctioned by the Hindu law she may make a
perfectly good and valid absolute alienation of her deceased husband's
estate. I do not propose here to repeat what I said in the Full Bench
ruling as to the nature of a Hindu widow's estate, nor in this case
does any question arise of an alienation made by her of the kind ordinari-
ly contemplated. I am not now going to decide what would be the
position of a stranger third party in whose favour an alienation had
been made. I am dealing solely and purely with the case in which
two persons having a limited interest in property in the nature more or
less of a life interest, one taking by succession after the other, have joined
together to allow the party entitled when both of them are dead to succeed
to the estate to obtain immediate possession. I think, under circumstances
such as these, that the only proper view to adopt and the only view consist-
ent with the Hindu law is, that they have relinquished their several rights
to life possession of the property. Then, under such circumstances, can it
be said that their action was of such a character as to defeat the title of
the plaintiff in the present suit which accrued to him at the date of his
mother Musammat Eukmin's demise? So far as Musammat Bukmin was
concerned, she could not be heard as against her son, Kbarak Singh, to
deny his right to possession as against her. But that right would only
subsist so long as she remained alive, and with her death the succession,
in my opinion, opened up and Duli Singh plaintiff's right as grandson of
Bhimjit came into existence, and in my opinion, had not been destroyed or
in any way affected [380] by the deed of gift of 1872. I see nothing in this
view which is inconsistent with the remarks made by their Lordships of the
Privy Council in Raj Lukhee Dabea v. Gokool Chunder Chowdhry (2), nor,
so far as I am aware, is this rule other than consistent with the doctrines
of the Hindu law. I accordingly think that the issues which the learned
Judge remanded were immaterial, and that it was unimportant to consider
whether Duli Singh was alive at the date of his grandmother, Hira


** A. 877
tt A.W.H.
W898) 83.

(1) 6 A, 116,

(2) 13 M.LA. 219.


All. 381



1892 Kuar's death or not. It seems to me sufficient for the purpose of ascer-
MARCH 5, taining his right that he was alive at the date of his mother's death in

1882, when the succession opened up which had been suspended during

APPEL- the lifetime, first of the widow and then of Musammat Kukmin. Under

LATE these circumstances I allow the appeal and reverse the order of the learn-

OlVIL. e ^ Judge, remanding the case under s. 562 of the Code of Civil Proceedure.

I direct the learned Judge to restore the appeal to his file of pending

11 A. 377- appeals and to determine the other issues, if any, arising before him, taking

12 A.W.N. such action under s. 566 of the Code as may appear to him necessary
(1892) 33, upon the basis of my preceding remarks that Duli Singh is entitled to

maintain the action. The costs hitherto incurred will be costs in the
cause. .

TYRRELL, J. I entirely concur in the view of law as laid do\vn by
my brother Straight and with the order that he has made in this appeal,
and I am the more ready to adopt this view because it will be in harmony
with the decree of this Court in another case, not between the same
parties it is true, but by which Kharak Singh's interest in his^grandfather's
estate was judicially limited to a moiety thereof, upon the ground that his
brother, Duli Singh, was presumably entitled to the other half of the

Cause remanded.

14 A, 381 (F B.) = 12 A.W.N. (1892) 143,


Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight, Mr. Justice
Tyrrell, Mr. Justice Mahmood and Mr. Justice Knox.

(Defendants)* [9th March, 1892.]

Act XII of 1881 (N.W.P. Rent Act), ss 9, 93, cl. (a), 112 A, 161 Landholder and
tenant Occupancy tenant Suit- by landholder against successor of occupancy
tenant for arrears of rent which accrued during the lifetime of his predecessor
Jurisdiction Civil and Revenue Courts.

An occupancy tenant in possession, who has accepted the occupancy holding,
is liable to be sued for arrears of rent not barred by limitation which aoorued in
the lifetime of the person from whom the right of occupancy has devolved upon

The suit above referred to is exclusively cognizable by a Court of Revenue.

80 held by the Full Bench, Mahmood, J.. dissentiente.

The following oases were referred to : By Edge, C.J., Jyeperkash v. Shew-
purshad (J), Mata Deen Doobey v. Chundee Deen Doobey (2), Mata Deen v.
Chundee Deen (3), Wazir Miihamm"d v. Aimnat Khan (4), Bhikhan Kuarv.
Ratan Kuar (5), Ahmad-ud-din Khan v. Majlis Rat (6), By Knox, J.,
Ashootosh Chutkerbutty v. Baneemadhub Mookerjee (7), Benod Behary
Mookhopadhya v. Beer Narain Roy (8), and Hcssein Alt Beg v. Ashruff Ali
Beg (9), By Mabinood, J., Oopal Pandey v. Parsotam Das (10), Mahadeo

* Miscellaneous No. 12 of 1891,

(1) N.W.P. 8.D.A.R 1864, vol. I, p. 230.

(2) N.W.P.H.C.R. 1874, p. 118. (3) N.W.P.H.C.R. 1870* p. 64.

(4) 3 A.W.N, 11883) 172. (6) 1 A. 512. (6) 5 A. 438.

(7) Revenue, Civil and Criminal Reporter, vol. I, p. 26.

(8) Revenue, Civil and Criminal Reporter, vol. I, p. 46,

(9) N.W.P.B.D.A.R. 1865, p. 221. (10) 5 A, 121.


14 All. 383

Singh v. Bachu Singh (I), Waria Ali v, Muhammad Ismail (2) and Ahmad-ud-
din Khan v. Mai is Rai (3).

[F,, 13 A.W.N, 102 ; 16 C.P.L.R. 55 ; 8 0. 0. 257 (360) J R., 19 A. 352 J 15
O.P.L.B. 89 (91) ; D., 8 O.C. 203.]

THIS was a reference under s. 205 of the North -We stern Provinces
Rent Act (Act No. XII of 1881) made by the Assistant Collector of Aligarh.
The suit out of which the reference arose was a suit to recover a certain
sum as rent and interest brought under the following circumstances, as
stated in the order of reference : " The plaintiff, Kunwar Lekhraj Singh,
is landholder in mauza Biaaro. The defendants are occupancy tenants.
Their father was occupancy tenant before them. During his lifetime they
did not live with him as a joint family, but separately, and did nob share
in the tenancy. Their father died at the end of 1888 [382] or the begin-
ning of 1889. The present suit is for rent which fell due in October, 1887,
and April 1888, that is to say during the lifetime of the defendants'
father." The Assistant Collector, being of opinion that he had no juris-
diction to try the sui6, referred the question to the High Court in the
following form : " Has a revenue Court jurisdiction in a suit for arrears
of rent which fell due during the lifetime of a deceased representative of the
defendants whom they have succeeded as tenants by inheritance and not
by survivorship?" On the reference coming before a Bench consisting of
Edge, C. J., Straight and Tyrrell, JJ., it was ordered to be laid before tha
Full Bench of five Judges.

Babu Jogindro Nath Chaudhri, for the plaintiff.

Munshi Ram Prasad, for the defendants.

Mr. T. Conlan and Mr. C. 0. Dillon, on behalf of Government.


MAHMOOD, J. In this case I have the misfortune of having to begin
the judgment, because I regret that I am not agreed with the majority of
the Court in the answer which should be given to this reference.

The case arises from facts which are succinctly stated by
Mr. Sabonadiere, Assistant Collector, who has referred this case under
s. 205 (a) of the Bent Act (Act No. XII of 1881) for a reply to be given by
this Court in regard to certain views which he entertained as to the jurisdic-
tion which he possesses. Yesterday the point was considered whether
the reference would lie to the District Judge instead of to this Court, but
we were unanimous that, under s. 205 of the Bent Act, the Assistant
Collector had the authority to refer the case to us through the Collector,
as he has done.

Now, I have no doubt that the reference is one with which we can
deal under the enactment, namely, the Bent Act above referred to.

The point, however, is one not free from difficulty, and I am anxious as
the dissentient Judge to explain exactly why I cannot agree with the views
which the majority of the Court are inclined [383] to hold in regard to the
matter, which though pecuniarily small undoubtedly raises important
questions for not only the decision of technicalities as to jurisdiction, but
also to the- rights of parties when questions of this character arise be*
tween landlord and tenant.

Mr. Sabonadiere states that the question which he has referred
arises from the following facts :





li A. 381

12 A.W.N.
(1892) 148.

(1) 11 A, 224.

(3) 8 A. 552.


(3) 5 A. 438,

14 All. 384





it A. 881

12 A.W.N.
(1892) 143.

Kunwar Lekhraj Singh his landholder in mauza Bisaro. The
defendants are occupancy tenants. Their father was occupancy tenant
before them. During his lifetime they did not live with him as a joint
family, but separately, and did not share in the tenancy. Their father
died at the end of 1888 or beginning of 1889. The present suit is for
rent which fell due in October 1887 and April 1888, that is to say, during
the lifetime of the defendants' father.

i Now over this matter one thing is certain, namely, that the claim
which is brought in the suit out of which this reference has arisen was a
claim, as appears from the record, for recovery of Rs. 236-2-0 in respect
of the year 1295 Fas'.i for 83 highas, and it is a claim for recovery not
of rent due by the present defendants but of rent due by their father Amar
Singh, who as a matter of fact died before paying up his debts, that is to
say, before paying up, inter alia the debt due to the landlord, namely, the
present plaintiff in the cause. Now much difficulty in regard to a question
of this character arises not from any complications of fact, because they
are simple, but from the difficulties which arise out of the somewhat
inadequate drafting of the Rent Act(Act No. XII of 1881), and those diffi-
culties I am anxious to explain.

The plaintiff of course as the landlord is anxious to show that because
Amar Singh held an occupancy tenure of some sort, not an occupancy
tenure such as is contemplated by exproprietary tenancy or by the trans-
ferable occupancy, but as land held under the statutory right awarded by
the vory statute which I am now considering, by s. 3 of the Rent Act, it
is a tenancy which amounts to and is subject to all the right and liabilities
which belong to proprietors in land pro tanio, that is to say, the right having
in the first instance been oon-[384]ferred by the statute, it becomes subject
to the ordinary rules of equity, justice and good conscience within
the meaning of the phrase as it has already been understood in India.
It must be dealt with as the property of the tenant upon whom the right
is conferred, and therefore whosoever succeeds to such a right must neces-
sarily be regarded as taking the right subject to all the liabilities which
belonged to the original tenancy. For this proposition Mr. Conlan who,
as amicus curice, has appeared on behalf of Government has naturally
relied upon s. 9 of the same enactment which lays down, among other
things, that such holdings shall in the^first place be non-transferable, and
then it goes on to lay down that though they are non-transferable they
should be dealt with according to the rules laid down in the last para-
graph as if they were land.

Now as to the last paragraph of s. 9, I wish to say that I am most
anxious to consider what it means. In the first place, whatever may be
the rule of law as to original tenures, as to their being in the occupancy
of a tenant by dint either of contract, express or implied, written or
oral, the law, as it confers the right of occupancy upon an occupancy tenant)
in this part of the country, as in Bengal, confers a right which has got
nothing to do with contract. It is the creation of a statute, a creation
which, irrespective of the wishes of the landlord, and indeed, as we know
from the history of the legislation, entirely against his wishes, confers the
right to occupy and hold the land, because of twelve years' cultivation
pure and simple.

Now this being so, I have to consider further what is the nature of
the right which the law has created, and in having to consider this it will
be simply taking up the time of the Court if I read out all the judgments
which I considered in my dissentient judgment in the case of Gopal



Pandey v, Parsotam Das (1) where I had to deal with the whole history 1892
and policy upon which the right is created. MARCH 9,

The judgment unhappily, however, was a dissentient judgment, and ~
since it has been made the subject of consideration in this case [385] ULL

I will read out passages from that judgment so as to incorporate them BBNOH,
in this judgment. At page 128 of the report I said : . |~7~^ 8 |

Whatever the rights of tenants may originally have been in these (p B.)-
Provinces, Act X of 1859 was the first legislative enactment which ^ AWN.
recognized or conferred the rights of occupancy upon cultivators who had (1992) 143.
occupied their holding for twelve years and upwards. Section 6 of that
Act virtually declared the right to be heritable, but left the question of
transferability of the tenure unprovided for. Numerous rulings, more or
less conflicting, are to be found in the reports. It was held by a Full
Bench of the Calcutta High Court that the right was not transferable ;
that it was a right to be enjoyed by tha person who held or cultivated and
paid the rent, and had done so for a period of twelve years ; that the
right was only to be in the person who had occupied for twelve years, and
was not intended to give any right of property which could be transferred.
Narendra Narayan Roy Ohowdhry v. Ishan, Chundra Sen (2).

" The same view had been previously taken by Phear, J., in the case
of Bibee Sohodwa (3). That learned Judge in examining the nature of
the right of occupancy compared it to the relation which obtains between
the right of ownership of land in England and the servitude or easement
which is termed profit a prendre. He further observed that the ryot'a
was the dominant and the zemindar's the servient right ; that whatever
the ryot had, the zomindar had all the rest, which was necessary to com-
plete ownership of the land ; that the latter must, therefore, have such a
right as would enable him to keep the possession of the soil in those
persons who are entitled to it, and to prevent it from being invaded by
those who are not entitled to it.

" Whilst such was the nature of the right to which occupancy ten-
ants, were held to be entitled merely by force of the statute, it had been
held, both by this Court and by the High Court of Calcutta, that local
custom would entitle the occupancy tenant to transfer his holding, in
other words, the question of transferability [386] was to be determined
with reference to the original nature of the tenure, irrespective of the
statutory provisions which were not understood to deprive tenants of such
customary or other rights as they possessed before the passing of Act X
of 1859. The status of occupancy tenants was therefore variable and
indefinite, and being thus involved in uncertainty was liable to create the
mischief which arises from imposing upon the Courts, charged with decid-
ing such suits, the duty of ascertaining local custom in evary case in which
the tenant chose to plead it customs which in India are far from being
fixed or easily ascertainable.

" Such was the state of things found by the Legislature in 1873, when
the Kent Act of that year was passed. The preamble to that Act showi
that its objects were of a wider soope than those with which Act X of
1859 was enacted. The object of the Act of 1873 was not only to con-
solidate but to amend the law relating to the recovery of rent in these
Provinces. It is therefore with reference to tha provisions of that Act,
which are more specific and clear, that the nature of the right of occupancy

(1) 5 A. 131. (2) 13 B.L.B. 274. (3) 12 BLR. 82.


14 All. 387



1898 should be determined, and it is to be observed that the question of

MARCH 9. transferability is no longer left unprovided for by the Legislature.

"The manner in which the right of occupancy comes into existence
FULL is described in s. 8 of the Act. The right; is acquired by the tenant

BENCH, merely in virtue of occupying or cultivating land continually for twelve
years ; in computing the period, the occupation or cultivation by the

14 1. 381 ' father or other person from whom the tenant inherits,' is also taken
(F B.)= into calculation, and the whole rule is subject to certain provisions, which

12 A.W.N, nee( 3 not DQ considered for the purposes of the present oases. The right
(1892) 143. w bioh thus comes into existence confers definite benefits on the tenant.
He ceases to be a tenant-at-will ; the rent payable by him cannot be
enhanced by the mere wish of the landlord (s. 12) without special
grounds (s. 13) ; he can apply for abatement of rent on showing adequate
grounds (s. 15) ; the entire question of the amount of rent no longer
remains a matter of discretion with the landlord, but is regulated by
definite rules (ss. 16 and 17), though the landlord and tenant can by
mutual [387] agreement fix such amount (s. 22) for such term as may
be agreed upon. Further, the tenant can claim a lease from the landlord
at the rate paid by him (e. 26) ; he cannot be ejected except on the ground
of the non-payment of arrears of rent and other definite grounds
specified in the Act. In short, while the landbrd still continues to be
the owner of the land, the tenant acquires a right to ojcupy and cultivate
the soil wholly irrespective of the assent or permission of the londlord, so
long as the provisions of the Act or conformed to.

" Now these statutory provisions which on the face of them, appear
to relate only to the province of procedure or adjective law on the subjeot of
recovery of rent, have, in reality, the effect of creating a substantive right in
favour of the tenants. It has been said that the nature of that right is only
a personal one, because, as is contended, it belongs to the tenant personally
and dies with him. This contention is no doubt in a measure supported
by the view expressed by Couch, 0. J., in the Full Bench ruling in
the case of Narendra Narayan Roy Ghowdhry (1). But that ruling was
passed under Act X of 1859 and Bengal Act VIII of 1869, the provisions
of which were vastly different to those of Act XVIIE of 1873. I confess
I can take no such view of the right of occupancy under the provisions of
the last-mentioned Act. The idea of a personal right hi3 bean variously
dinned by jurists, to whom it is known by the term jus in personam, but
in all those definitions the essential principle is recognized that such
right avails exclusively against persons specifically determinate. In the
oase of an occupancy tenant the right created in his favour by the statute
is not a right which hinds the landlord alone ; in other words, it is not
a right which has for its correlative the obligation of only the landlord
of the soil. On the contrary, it is a right in land, a right which avails
against all persons universally. Iu is therefore not a jus in personam,
and is is clear that it cannot be called a jus ad rem, for that class of
right is only a species of personal right and implies the right of compel-
ling a determinate person or parsons to do any [388] specific act, the
commission of which would confer a real right known in the language
of jurisprudence as jus in rem or a permanent right in and over
a thing which forms the subject of the right. In the case of an
occupancy tenant, the right which the Legislature has conferred upon
him under Act No. XVIII of 1873 is such as, subject; to the limitations

(1) 13 B.L R, 274.



provided by the statute, prevails against all the world. Tha subject of the 1$92,
right is the land held by the tenant, and, whatever changes the ownership MARCH 9,
of that land may undergo, the occupancy .rigtit subsists in and goes with
the land. The right no doubt falls far short of absolute ownership or
dominion defined by Austin to be a right over a determinate thing BENCH.
indefinite in point of user, unrestricted in point of disposition and unlimit- '-.
ed in point of duration.' But ' one or more of the subordinate elements of ** A* 881
ownership, such as a right of possession or user, may be granted out IFJJ.)
while the residuary right of ownership called by the Romans nuda pro- 12 A.W.N.
prietas remains unimpaired. The elements of the right which may thus (t892> 143,
be disposed of without interference with the right itself in other words,
which may be granted to one person over an objest of which another con-
tinues to be the owner are known as jura in re alien* ' (Holland on Jur,
p. 144.) Thus Jura in re aliena ara such of the rights in rem availing against
the world ab large as are acquired over and in the absolute ownership or
dominion of another person in whom the ownership still continues.
Among such rights was a right known to Roman Jurisprudence as emphyteu-
sis which has been defined to be ' the right of a person who was not the
owner of a piece of laud to use it as his own in perpetuity, subject to for-
feiture on non-payment of a fixed rent and on certain other contingencies.'
It appears to me that the right of an occupancy-tenant in these Provinces
resembles the emphyteusis of the Roman Law. It is a right carved out of the
proprietary estate of the zemindar by the operation of the statute, as indeed
it might have been by grants from the landlord himself. That such was
the nature of the right of occupancy intended to be conferred by the
Legislature upon tenants of twelve years' standing seems to me to be
clearly shown, not only by the general provisions of the Rent Act
but by the express language of a clause in s. 9. [389] That clause
lays down that, 'when any person entitled to such last-mentioned right
dies, the right, shall devolve as if it were land. Moreover, as shown
by s. 8, the tenant acquires the right of occupancy not only by virtue
of his own cultivation, but also by virtue of the continuous cultiva-
tion or occupation of the land by the person from whom he
inherits. Under s. 9 the right is capable of devolution by inheritance
and also of transfer by act of parties, but both these capabilities are
subject to the limitations provided by that section. It provides that
the right of occupancy shall not 'be transferable by grant, will or other-
wise, except as between persons who have become by inheritance co-
sharers in such a right.' These limitations, however, do not alter the
nature of the right so as to take it from one class of rights recognised
by jurisprudence into another class. Therefore, according to my view,
the holding of an occupancy tenant must, for the purposes of the present
question, be regarded as land, or any other real and substantive interest
in immovaable property. If any light can be thrown upon this question
by the provisions of the laws other than the Rent Act itself, I should
say that the rules of procedure in regard to the territorial jurisdiction and
limitation applicable to a suit by an occupincy tenant for recovery of

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 92 of 155)