JUDGMENT
Kendall, J.
1. This is a defendant’s appeal from a decree and order of the Second Additional Subordinate Judge of Jaunpur confirming the decision of the trial Court. The facts are given sufficiently fully in the judgment of the lower appellate Court, and the only question that I have to decide in second appeal is that of whether the succession to the estate opened on the death of Madho the last male holder (which occurred before the N.W.P. Tenancy Act, 1901, came into force) or on the death of Madho’s widow, which took place in 1924 when that Act was in force. At the present stage of the suit the plaintiff-respondent, who is the daughter of Madho, is claiming a declaration of her title, while the defendant-respondents rely on their possession and deny the plaintiff-respondent’s title. It is admitted on behalf of the appellant that if succession opened on the death of Madho and the provisions of the Act of 1881 applied the appeal must fail. On the other hand, if it is to be held that Madho’s widow succeeded to a full estate and that on her death succession opened, then the provisions of the N.W.P. Tenancy Act of 1901 will apply, and as under Section 22 of that Act a daughter has no right of succession, it follows that the appeal must succeed and the plaintiff’s suit must fail. This is a question on which there has been some inconsistency in the opinions expressed by Benches of this Court. On behalf of the appellant I have been referred to a decision of a Bench in Bhup Singh v. Jai Ram 1918 All. 384. It is possible to argue that in that case the opinion expressed is an obiter dictum in that the decision turned on the proviso to Section 22 and not on the question of whether the daughter succeeded but the opinion certainly is expressed that Section 22 of Act 2 of 1901 would govern the case, and Sir Henry Richards remarked that if the occupancy tenant had
died before the passing of the Act his widow would have succeeded him under the provisions of that Act, but on her death the succession would be regulated by the provisions of the present Tenancy Act.
2. The date of the judgment is 1918. There is an earlier decision by a Single Judge of this Court in Mt. Sumari v. Jageshar (1920) 20 I.C. 7 to the same effect. On the other hand a contrary view has been taken in Deoki Rai v. Mt. Parbati 1914 All. 513, Nathu v. Gokala 1915 All. 413 and Bechu Singh v. Baideo Singh 1922 All. 84. The balance of authority is therefore in favour of the view that succession opened when Madho died and that the daughter can succeed. This is the view that has been taken by both the Courts below, and as it can be supported by the weighty authorities that I have quoted, I see no reason to interfere. The result is that the appeal is dismissed with costs.
