Mt. Kerkati and Another vs Dibakar Naik and Others

Kulwant Sahay, J.—This is an appeal by defendants 1 and 2 against the decree of the Subordinate Judge of Sambalpur modifying the decree of the Munsif and decreeing a portion of the plaintiff''s claim. The suit was for a declaration of the plaintiff''s title to the estate left by one Gobind Naik as his next reversionary heir.

Gobind Naik died leaving a will, dated 21th June 1905, bequeathing his properties to his youngest daughter Mt. Siria. He had three other daughters, one of whom died without issue and the remaining two are defendants 6 and 7 in the suit. Mt. Siria died leaving two daughters who are the appellants in this appeal. The husband of Mt. Siria and the husbands of the two daughters are defendants 5, 3 and 4 respectively. The plaintiff''s case is that the will conferred only a life interest on Mt. Siria and that after her death he, as the nest reversinary heir, was entitled to succeed, and that the daughters of Mt. Siria, her husband and her daughters husbands, Who are in possession of the properties, have no title there to. The remaining two daughters of Gobind Naik, viz., defendants 6 and 7, have no objection to the suit being decreed in favour of the plaintiff. The suit was contested by defendants 1 to 5 and their case was that by the will an absolute estate was bequeathed to Mt. Siria and that on her death her daughters are the legal heirs entitled to the property.

Both the Courts below have construed the will as bequeathing an absolute estate upon Mt. Siria, and this finding is not questioned in this second appeal, the plaintiff being content with that finding. The Munsif dismissed the suit altogether. On appeal however the learned Subordinate Judge has given a modified decree in favour of the plaintiff in respect of the raiyati lands held by Gobind Naik and bequeathed under the will to Mt. Siria. The will related to bhogra lands, to certain houses and to raiyati lands. As regards the bhogra lands and the house property the learned Subordinate Judge has found that the will was operative, but as regards the raiyati lands he was of opinion that a raiyat had no right to bequeath his occupancy right by will under the provisions of the Central Provinces Tenancy Act. It is against this finding of the Subordinate Judge that the appellants have come up in appeal to this Court, and the sole question for consideration is whether raiyati holdings can be bequeathed by will by a raiyat under the Central Provinces Tenancy Act.

The relevant section of the Act, which is Act 11 of 1898, is Section 46. Sub-section (1) of this section provides that when an occupancy tenant dies his right in his holding shall devolve as if it were land. It is contended on behalf of the appellants that the interest of an occupancy tenant under the Central Provinces Tenancy Act is similar to the interest of occupancy tenants under the Bengal Tenancy Act, and, as it has been held under these two Acts that the interest of an occupancy tenant in his holding is not a personal interest, but the interest in property like any other property therefore as under the Bengal Tenancy Act an occupancy raiyat has the right to make a will in respect of his occupancy holding, a raiyat under the Central Provinces Tenancy Act has also the right to make a will in respect of his holding. That an occupancy raiyat under the Chota Nagpur Tenancy Act has the right to make a valid testamentary disposition of his occupancy holding was held by a Division Bench of this Court in Musammat Kishuni Kuar and Another Vs. Andu Mahton and Others, .

The learned advocate for the respondents however contends that this ruling has no application to occupancy tenants under the Central Provinces Tenancy Act, and he has referred to certain provisions of the Act and compared them with the similar provisions in the Chota Nagpur Tenancy Act, and the Bengal Tenancy Act. He has also referred to certain decisions under the Central Provinces Tenancy Act and has contended that so far as the Central Provinces are concerned the law is settled that an occupancy raiyat has no right to make a valid testamentary disposition of his holding. He has also referred to the preambles of the Bengal Tenancy Act and the Chota Nagpur Tenancy Act, while the latter two Acts purport to amend and consolidate certain enactments relating to the law of landlord and tenant, the Central Provinces Tenancy Act does not purport to amend and consolidate the law relating to landlord and tenant but to consolidate and amend the law relating to agricultural tenancies in the Central Provinces, and the learned advocate for the respondents contends that the Central Provinces Tenancy Act, is not an Act which merely regulates the relationship existing between the landlords and tenants, but prescribes a complete code relating to agricultural tenancies.

After a careful consideration, I am of opinion that the arguments of the learned advocate for the respondents are sound and ought to prevail. As was observed in Sukuru Mali v. Sri Brahmapura Balabhadra Mahaprabhu [1919] 4 Pat. L.J. 354, the dictum that an occupancy right is a personal right is now an exploded theory even in the Central Provinces. It is a right in property and under the express terms of Section 46 such a right does not now revert to the landlord on the death of the occupancy tenant, but devolves upon the heir of the tenant as if it were land. The occupancy tenant has the right to sell, make a gift of mortgage and sublet his right in his holding under certain restrictions. There is nothing in the Central Provinces Tenancy Act to restrict the powers of the occupancy tenant to make a testamentary disposition of his right in his holding. Ordinarily therefore it would appear that he would have such a right, but there are differences in the provisions of the Chota Nagpur Tenancy Act and the Bengal Tenancy Act on the one hand and the Central Provinces Tenancy Act, on the other. Section 23, Chota Nagpur Tenancy Act, provides that if a raiyat dies intestate in respect of a right of occupancy it shall descend in the same manner as other immovable properties, subject of course to any local custom to the contrary. This implies that a raiyat can make a testamentary disposition in respect of a right of occupancy.

There is a similar provision in the Bengal Tenancy Act: see Section 26 of the Act. There is no such provision in the Central Provinces Tenancy Act. It was held so far back as the year 1887 by the Judicial Commissioner of the Central Provinces that an occupancy tenant cannot transfer his right in his holding by will, Mt. Laxmi Bai v. Alyar Khan [1889] 2 C.P.L.R. 167. This was under the old Tenancy Act of 1883. The Tenancy Act has since then been amended several times. Act 11 of 1898 was amended so recently as the year 1920 by Act 1 of 1920. Since the decision of the Judicial Commissioner in Mt. Laxmi Bai''s case [1889] 2 C.P.L.R. 167 the Courts in the Central Provinces have taken the same view consistently throughout. In Shecdayal v. Rewa Prasad AIR 1926 Nag. 222 the Judicial Commissioner of Nagpur, while considering this question observed as follows:

As far back as in 1887, Crosth waite, J. C., with reference to Section 43 of the old Tenancy Act of 1883, then in force held in Laxmi Bai v. Alyar Khan [1889] 2 C.P.L.R. 167 that an occupancy tenant could not make any disposition of his tenant''s right by will. Had this view been erroneous the statute which has been changed twice since then would have surely undergone a change in this respect so as to clothe the tenant with a right to make a bequest of his tenant''s right. The question had arisen again in 1901 in connexion with the powers of an absolute occupancy tenant to make a testamentary disposition of his right in the holding and it was held by Is-may, J. C,, in Anadi Bai v. Harlal [1902] 15 C.P.L.R. 1 that a will by an absolute occupancy tenant was in valid. This case was apparently under the Tenancy Act, 1898. Since then there has been a change and the new Tenancy Act of 1920 has appeared in the Statute Book, but we do not find any change which would vest a devisabla interest in the tenant of the Central Provinces. This clearly supports the argument that the legislature thinks that the statute has all along been rightly interpreted by the Court of the Province in this matter.

This is if I may be permitted to say so a sound view to take, and it must be held that so far as the Central Provinces are concerned it is a settled law that a tenant has no right to make a testamentary disposition in respect of his occupancy holding. It is for the legislature to consider whether such an interpretation of the law is correct or not and whether the law requires any amendment in this respect. So long as this is not done, the Courts are bound by the cursus curiae so far as the Central Provinces are concerned.

I am therefore of opinion that the view taken by the learned Subordinate Judg is correct and this appeal must be disemissed with costs.

Courtney-Terrell, C.J.

I agree.