Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Mashuq Ali Khan vs Ayub Ali Khan on 30 November, 1908
Equivalent citations: (1909) ILR 31 All 51
Bench: Aikman, K Husain


Aikman and Karamat Husain, JJ.

1. An occupancy holding was held jointly by two brothers, Yakub Ali Khan and Muzaffar Ali Khan. On the death of Muzaffar Ali Khan, which took place before the present Tenancy Act came into operation, the name of his widow, Mussammat Rasul-un-nissa, was recorded in his stead as joint occupancy tenant of the land. She died in 1902 after the new Tenancy Act came into force. Upon her death her step-brother Mashuq Ali Khan, plaintiff respondent, endeavoured to get his name entered in the revenue records in Her stead. The revenue authorities, however, entered the “whole holding in the name of Ayub Ali Khan, the son of Yakub Ali Khan. Thereupon the plaintiff Mashuq Ali “Khan brought a suit in the Civil Court for declaration of his right to a moiety of the holding, for joint possession thereof, and also for damages. The Court of first instance threw out the suit as not cognizable by a Civil Court. On appeal the learned Additional Judge held that it was cognizable by the Civil Court and remanded the case for disposal on the merits. Against that order of remand the present appeal has been preferred. Two pleas have been urged before us. One is that the suit is obnoxious to the provisions of Section 32(2) of the Agra Tenancy Act, which prohibits any suit for the division of a holding or distribution of the rent thereof being entertained by a Civil or Revenue Court. In our opinion this plea cannot prevail. If, having got his declaration, the plaintiff attempted to sue for actual division of the holding or distribution of the rent he might be met by this section. We do not think that this section prohibits a suit like the present. It was next urged that, having regard to the provisions of Section 22 of the Act which provides for succession to tenancies, the plaintiff does not possess the right which he sets up. The decision of this plea is more difficult. After giving the point our best consideration, we are of opinion that under the circumstances of the case the plaintiff has the right of succession under Section 22 of the Act. The plaintiff’s sister succeeded under the former Act No. XII of 1881. Under Section 9 of that Act the occupancy right devolved to her as if it were land.” She being a Muhammadan widow acquired in our opinion an absolute right to be considered an occupancy tenant. Succession to her occupancy right is governed by Section 22 of the new Act. It is true that that section is worded as if males alone can be exproprietary, occupancy or non-occupancy tenants, but we can find nothing in the other provisions of the Act which would prevent a woman acquiring such rights. There is nothing to prevent a woman being a tenant of agricultural land, and if she held it continuously for 12 years she would acquire a right of occupancy just as man would. We cannot therefore attach to the fact that the words in Section 22 are words importing only the masculine gender the weight which is sought to be placed upon them. We think that Musammat Rasul-un-nissa having been an occupancy tenant, her half brother, who, it is not denied, was the son of the same father, is entitled to succeed under Clause (c) of the section. The same question was very fully considered by the members of the Board of Revenue in Ikramuddin v. Irshad Ali Sel. Dec. Board of Revenue No. 2 of 1905. There it was held that a Muhammadan widow who succeeded to an occupancy holding acquired an absolute estate, and that on her death, after the 1st of January 1002, the persons to succeed will be her heirs and not the heirs of her deceased husband. We agree in this view. The result is that the appeal fails and is dismissed with costs.

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