JUDGMENT
Blair, J.
1. This case has been referred to a Bench of two Judges on account of the importance of the question involved. It is substantially the same question as was raised in the first Bench before the learned Chief Justice and myself in Letters Patent Appeal No. 40 of 1893, dated the 24th July 1894. The judgment does not in terms rule upon the disputed question. The hearing of that case ended in an order of remand directing the Court below to find who, according to general Hindu Law, was the heir of the deceased occupancy-tenant. That remand is only comprehensible upon the supposition that we consider no person was qualified as successor in the occupancy-holding who did not combine with his claim as a sharer in the cultivation the further title as heir; and indeed in the course of the argument the interpretation which we put upon Section 9 of the N.W.P. Rent Act, XII of 1881, was abundantly manifest. The question raised is this: “Is a collateral who has shared in the cultivation of land subject to occupancy-tenure entitled on the decease of the tenant whose cultivation he has shared to inherit the occupancy-right in preference to a nearer collateral, who would be heir to the deceased under the ordinary Hindu Law, but who has not shared in the cultivation of the land in question?”
2. I have no doubt upon the wording of the section that one construction, and one only, can be put upon it. The first provision is that on the death of a person entitled to occupancy-tenure that right shall devolve as if it were land. That is precedent to every other condition. It means that the person to inherit must be one who would inherit if the property were immovable property of a totally different kind. Then is added a sentence of disqualification and not of qualification. The section goes on: “Provided that no collateral relative of the deceased who did not then share in the cultivation of his holding shall be entitled to inherit under this clause.” It seems to me upon the plain and ordinary construction of this section that it first of all specifies a class out of whom the successor must be taken, and then, in the case of some of such persons not having shared in the cultivation, it excludes them from the benefit they would otherwise derive as heirs. By a ruling to which “my brother Burkitt has called my “attention–Badri Das v. Dabi Das Weekly Notes 1888 p. 200, my predecessors Straight and Mahmood, JJ., were both of them quite clear as to the interpretation to be put upon this section. I would, therefore, decree the appeal of the plaintiff, and set aside the decrees of both the lower Courts with costs, and give a decree for the plaintiff in the terms of the prayer in his plaint.
Burkitt, J.
3. I concur fully in the order proposed by my learned brother, and in the reasons given for it. Where a collateral relative claims to be entitled to succeed to an occupancy-holding on the death of the occupancy-tenant without direct heirs, it is, in my opinion, incumbent upon him to prove two things, viz., first, that he is the heir according to the law to which he is subject, and secondly, that he shared in the cultivation of the occupancy-holding during the life-time of the deceased occupancy-tenant. Unless these two requisites be joined in one and the same collateral, such person cannot succeed to an occupancy-holding. The facts here are that the more remote collateral shared in the cultivation, while the nearer collateral (who, it so happens, is the father of the more remote collateral) did not so share, and the contention is that, to use a phrase of Hindu Law, the more remote collateral therefore excludes the nearer, which is a strange proposition. To this proposition I cannot accede. Under the words of Section 9 the right shall devolve as if it were land. I hold, therefore, that the person on whom that right devolves is the person indicated as heir by the law to which he is subject, and not a person more remote in the line of succession who may have shared in the cultivation with the deceased occupancy-tenant. As has been very properly remarked by my learned brother, the condition requiring the collateral who claims succession to have shared in the cultivation is a disqualification which disentitles the nearest collateral if he has not fulfilled the condition. But it does not confer any right of succession to the occupancy-tenure on a more remote collateral, even though he may have shared in the cultivation. For these reasons I concur in the order of my learned brother setting aside the judgment of the two lower Courts and giving plaintiff a decree as prayed for in his plaint.
