Gajjan Singh vs S. Zorawar Singh

Chopra, J.—The sole question involved in this second appeal is whether an alienation of occupancy rights by the mother of the last male holder in favour of the landlord, can be contested under the Customary Law by a reversioner on the ground of want of consideration and necessity. The facts of the case giving rise to this appeal by the Plaintiff are these: An occupancy tenancy u/s 5, Punjab Tenancy Act was held in equal shares by Gajjan Singh Plaintiff and Mst. Biro whose relationship will be borne from the following pedigree-table:

NATHA SINGH | ___________________________________________ | | Prem Singh Bir Singh | | Arjan Singh ______________________ Mt. Biro who | | succeeded to her Gajjan Singh Sarwan Singh son Arjan Singh. (Plaintiff)

In the year 1960 the occupancy holding jointly belonged to Bir Singh and Prem Singh in equal shares. After their death it devolved upon their sons, Bir Singh was succeeded by Sarwan Singh and Gajjan Singh and Prem Singh by his ton Arjan Singh. The two branches were shown to be jointly holding the tenancy in equal shares in the Jamabandi of 1901-92. Sarwan Singh is said to have died without leaving a widow or any other direct descendant, and Mst. Biro succeeded Arjan Singh, on the latter''s death. The occupancy rights were thus jointly held by Gajjan Singh and Mst. Biro in equal shares in the year 1994. It is not denied that S. Zorawar Singh Respondent was then the sole landlord of the tenancy. Mst. Biro sold her half share of the occupancy rights in 165 bighas 6 biswas of land to S. Zorawar Singh for Rs. 1,000/- by a registered deed dated 3-11-94. Gajjan Singh brought the present suit for a declaration that the alienation would not affect his reversionary rights on the ground that the property was ancestral and that the sale was in contravention of the provisions of Section 59(3), Tenancy Act and also without consideration and necessity. S. Zora Singh the aliened controverter these allegations and inter alia pleaded that since the sale was in favour of the sole landlord,, it extinguished the tenancy and consequently was not subject to challenge by the reversioner. The trial Court held the occupancy rights to be ancestral, the sale without necessity except to the extent of Rs. 319/, 8/- and the Plaintiff entitled to impugn the sale. The suit was consequently decreed. On landlord''s appeal, the learned District Judge, Barnala agreed with the trial Court on the first two points. As regards the last he was of the opinion that the occupancy rights had got merged with the proprietary rights by the sale in favour of the landlord & that the sale which was not on behalf of a widow of the last male holder but by his mother, was not hit by the provisions of Section 59(3), Funiab Tenancy Act. For these reasons he held that the Plaintiff had no right to impugn the sale. The appeal was consequently accepted and the suit dismissed. This is Plaintiff''s appeal against the appellate decree of the District Judge.

The case for the Respondent before me is that the statutory mode of succession enumerated in Section 59, Tenancy Act was not controlled by the personal law of an occupancy tenant or by the Customary Law. A mother u/s 59, as it stood before the amendment brought in by Act 9 of 1939, was not one of the recognised heirs and Mst. Biro, therefore, had no right to succeed to the tenancy on the death of her son Arjan Singh. The conclusion that Shri Kishori Lal, the learned Counsel for the Respondent, draws is that Mst. Biro must have been holding the land as a trespasser and prescribing for proprietary rights. Obviously the contention is without any substance. It is correct that Section 59, Punjab Tenancy Act is conclusive on the question of succession to an occupancy tenancy and rule of succession embodied therein cannot be added to or challenged on grounds of custom or personal law of the parties, but this does not mean that if a person, not entitled under the statute, is allowed to succeed to the occupancy rights by the persons interested, he or she would be occupying the land as a trespasser and would attain the position of a proprietor.

That Mst. Biro was holding the land jointly with Gajjan Singh as an occupancy tenant cannot be disputed. For all intents and purposes she was possessing the land as an occupancy tenant. The persons who could object to Mst, Biro''s succession to her son, were Gajjan Singh and the landlord. The former was in fact the rightful heir and should have succeeded in preference to her, tout he did not object and his position even now is that Mst. Biro was possessing the land as an occupancy tenant. For the landlord now to say that Mst. Biro could not and did not acquire the land on Arjan Singh''s death as an heir and that she took as an absolute owner, is simply ridiculous. He accepted her position as an occupancy tenant by purchasing her tenancy rights through the sale in question. In the written statement or before either of the Courts below he did not take up the plea that Mst. Biro was a mere trespasser and was holding the land as a proprietor. He cannot now be allowed to urge that she was occupying as a full owner and not as an occupancy tenant. It, therefore, necessarily follows that Mst. Biro was allowed to succeed to the occupancy rights after her son and that she was holding the land as an occupancy tenant and not as a full owner. The two cases cited by Shri Kishori Lal are absolutely of no help to him. In - ''Chanan Singh v. Mt. Sant Kaur AIR 1929 Lah 778 (1) (A) the dispute was between the widow of a predeceased son of the last male holder of the occupancy rights and the latter''s brother''s sons. It was held that u/s 59, Tenancy Act a widow of a predeceased son had no right to an occupancy tenancy. The other, - ''Mst. Fateh Nishan v. Ahmad Shah'' AIR 1914 Lah 414 (1) (B), was a pre-emption case started by the mother of the vendor. It was held that since u/s 59 she had no right to succeed to the occupancy rights, the Punjab Pre-emption Act did not confer a right of pre-emption upon her. It cannot be denied that u/s 59, as it stood before the amendment of 1939, mother was not one of the heirs entitled to succeed to occupancy rights and also that succession to an occupancy tenancy is governed not by custom applicable to the parties or by their personal law but by the provisions of this section; More than this the cases did not go and they do not, therefore, support the contention of the learned Counsel.

The next question is whether the sale of the occupancy right''s in favour of the landlord extinguished the tenancy. If it was so, as has also been held by the District Judge, then obviously there was nothing left for the reversioners to challenge. But a significant fact that has not been taken notice of by the learned Judge is that Mst. Biro had only a fractional share (one-half) in the tenancy. It was this share of hers that was sold to the landlord. The sale being not of the sole tenancy it did not result in extinguishing the tenancy. Mst. Biro and Gajjan Singh were holding a joint tenancy and the Respondent, therefore, could not be said to be the landlord of Mst. Biro for her fractional share. There was no separate tenancy of which the vendee might be the landlord. It is not disputed before me that the principle to be followed in cases of succession to an occupancy holding as against the landlord, is that joint tenants of a holding, even though their shares are defined, are to be regarded as a single tenant, and as long as any one of thein or the descendants of any of them survive, the landlord cannot claim the share of any tenant whose line has died out. The term joint tenancy seems to imply that each tenant has the same right over the whole of the holding and consequently no single tenant can deal separately with any separate part of it. It naturally follows that a sale of his share by one of the joint tenants in favour of the landlord would not extinguish the tenancy so as to affect the rights of other tenant or tenants.

In a Single Bench case of the Lahore High Court decided by Dalip Singh J., reported as - Labia Singh v. Hassu'' AIR 1939 Lah 374 (C). the facts were almost similar except that there the alienor was a widow and not a widowed mother as in this case. The sale having been challenged by the co-tenants and reversioners of the last maleholder, it was held where a widow had only a fractional share in the tenancy the transfer of such share in the tenancy to the sole landlord did not extinguish the tenancy and that the reversioners had right to challenge the transfer. Letters patent appeal against this judgment was dismissed by a Pull Bench, though on a different ground. The decision of the Pull Bench is reported as - ''Labh Singh v. Hassu'' AIR 1940 Lah 364 (D) and in that it was held that an alienation by saie or mortgage, of an occupancy tenancy by a widow was absolutely forbidden by Section 59(3) and hence such an alienation was void whether it was made in favour of the landlord or a stranger. In view of this finding Bhide J. who delivered the judgment with which the other Judges agreed, did not consider it necessary to go into the other point on which the case was decided by the learned Single Judge. For the reasons already given, I am in respectful agreement with the view adopted by Dalip Singh J. in the case referred to above and in my judgment the sale in question did not extinguish the tenancy and can, therefore, be contested by the reversioners under the Customary Law on the ground of want of consideration and legal necessity, provided the tenancy was ancestral qua the reversioners. As already observed, both the Courts below have held that the property alienated was ancestral qua the Plaintiff and that legal necessity to the extent of Rs. 319/8/- only had been proved. The concurrent findings on these points have not been challenged before me by the counsel for the'' parties. The result, therefore, is that the sale must be declared to be ineffective so far as the reversionary rights, of the Plaintiff are concerned.

There is yet Anr. and more decisive point which leads to the same conclusion. It relates to the powers, under the Tenancy Act, of Mst. Biro to alienate the occupancy rights. Section 59(3) of the Act provides as follows: "When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift or mortgage or by sublease for a term exceeding one year."

The doubt that sometimes existed as to the effect of this Sub-section of Section 59, when read with Section 60 of the Act, appears to have been set at rest and the law is well settled now that an alienation by sale or mortgage of an occupancy tenancy by a widow is absolutely forbidden and hence is void. It was so held by the Full Bench of the Lahore High Court in the case referred to above - ''AIR 1940 Lah 364 (D)'' and also by a Full Bench of the erstwhile'' Patiala High Court in - ''Shiv Narain v. Mst. Nathi 2 PLR 22 (FB) (E).

The applicability of this principle to the present case is questioned by the Respondent on the ground that the alienation in dispute was not by a widow of the last male occupancy tenant but by his mother. The learned District Judge has also held that the restrictions placed on powers of alienation by a widow have no application to those of a mother. I cannot subscribe to this view. My own opinion is that the powers of a widowed mother to alienate occupancy rights, if she is allowed to succeed to the tenancy by consent of the persons concerned in spite of the fact that though entitled to succeed under custom or personal law, she is not a recognised heir u/s 59, Punjab Tenancy Act, could not be better than those of a widow. It is a recognised principle of customary law that a mother succeeds as a widow of her deceased husband and not as a mother of her son. This is apparent from the fact that where there are more than one son the mother does not come to succeed after the death of one of them but she only succeeds when the last surviving son dies without issue, in her capacity as widow of her deceased husband. Because a widow who has remarried before the death of person, is no longer a widow of her deceased husband, she is not entitled to succeed after the loath, of her son. If her title to possession was ideally founded on her relation to her deceased son, the objection of remarriage would be irrelevant, . because she does not cease upon her remarriage to be his mother. For a similar reason her right to remain in possession of the property she has inherited from her son, ceases by custom on, a subsequent remarriage. I am, therefore, of the view that the restrictions placed on the powers of alienation of a widow by Section 50(3), Tenancy Act applied with equal force to those of a widowed mother who was. allowed to succeed to an occupancy tenancy before the amendment of 1939.

There is yet Anr. fact which, I think, sup- ports my view. By the amendment of Section 59 in Act 9 of 1939 a ''widowed mother'' is now included in the line of heirs after widow but Sub-section (3) was not amended so as to include her within its scope. The apparent result is that while the widow of a deceased tenant has no power to alienate at all, a widowed mother not being subject to the provisions of Sub-section (3) would have unrestricted powers under the Act. The position would be anomalous, because it seems scarcely likely that the legislature could have intended to place the widowed mother of a deceased tenant on a better footing in this respect than his widow. It can, therefore, be reasonably concluded that a corresponding amendment in Sub-section (3) was not .made in the amending Act simply because the mother did not, strictly speaking, succeed as the mother of her son (the last occupancy tenant) but as the widow of her husband. ''Widow'' in the Sub-section must be taken to include a ''widowed mother The result, therefore, is that the sale in question, though in favour of the landlord, was against the mandatory provisions of the Tenancy Act and hence was void.

For all these reasons the appeal is accept ed, the decree of the District Judge set aside and that of the trial Sub-Judge restored. In view of the complex nature of the question involved, the parties are left to bear their own costs through-I out.