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PETITIONER: RAM JIVAN

       Vs.

RESPONDENT: SMT. PHOOLA (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT30/01/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SARKARIA, RANJIT SINGH SHINGAL, P.N.

CITATION:  1976 AIR  844            1976 SCR  (3) 282  1976 SCC  (1) 852  CITATOR INFO :  D          1989 SC1872  (15)

ACT:      U.P. Zamindari  Abolition &  Land  Reforms  Act,  1950- Sections 172 and 174-Scope of. .      Practice-Whether decision  of a  Division Bench  in  an appeal binding  on another  Division Bench  hearing  a  writ petition.

HEADNOTE:      Under s.  172 of  the U.P. Zamindari Abolition and Land Reforms Act,  1950, when  a bhumidar who has, after the date of vesting,  inherited an interest in any holding, dies, the holding or  the part  thereof shall devolve upon the nearest surviving heir  (such heir  being ascertained  in accordance with the  provisions of  s. 171).  Section 174 provides that when a  bhumidar who  is a  woman dies,  her interest in the holding shall  devolve  in  accordance  with  the  order  of succession given in the section.      The appellant  was the  grandson  (son’s  son)  of  one brother while  respondent No.  I was  the only  daughter  of another brother.  On the death of the(1)respondent’s father, her mother  continued in  possession of the lands as heir of her husband under the provisions of the Oudh Land Act, 1886. U.P. Act  4 of  1921 which  replaced the 1886 Act, conferred the status of a statutory tenant upon a person in possession of lands  on the  date of  the amendment.  Section 29 of the U.P. Tenancy  Act, 1939,  which  was  a  consolidating  Act, conferred the  status of  a hereditary  tenant on any person who was  a tenant  . of  the land at the commencement of the Act and  so the  mother acquired  the status of a hereditary tenant. The  1939 Act.  was replaced  by the  U.P. Zamindari Abolition &  Land Reforms Act. 1950 under which she became a bhumidar. The mother died in 1952.      On the  death of  the respondent’s mother the appellant got his  name mutated  in the revenue records as the nearest heir of  the mother.  The respondent Sled a suit under s. 21 of the Abolition Act 1950 claiming to be the sole legal heir to the  property. She  also field  an application before the Consolidation  officer   under  the  U.P.  Consolidation  of Holdings Act  for mutation  of her  name in  a place  of the

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appellant’s, which was accepted.      On appeal  to this  Court it  was contended that it was the appellant’s  father who would succeed to the property in preference to  the respondent  and it  was contended for the respondent that  when  the  respondent’s  father  died,  the tenancy was  heritable and  so the  tenancy acquired  by her mother was in her own right as self-acquired property.      Allowing the appeal, ^      HELD: (1) Section 172A which was introduced in 1954 has no application     to this  case because the mother died two Years before  the amendment came into force and the question of succession  to her  estate would be governed by s. 172 or s. 174 of the Abolition Act. [274-A]      (2) The  statute seeks  to make a clear cut distinction between a  widow who  has inherited  an  interest  from  her husband dealt  with in s. 172 and  widow who had acquired an independent interest in the holding covered by s. 174.                                                      [272 C]      Mst. Jaini  & Ors. v. Ram Prasad, A.I.R. 1952 All. 852, approved.      (3) (a)  Section 172 uses the word ’holding or the Dart shall devolve’  to denote  that if it was found that a widow had inherited  an interest  in the  holding from her husband then it  was the  holding that  devolved and not interest of the widow,  which ceased after her death. The High Court had overlooked the  fact that  merely because  the mother having initially inherited possession or 263 occupation of  the holding  from her  husband acquired other types of  interest A  by operation  of law  that  could  not destroy the  origin or  the source  of her  title which  was inheritance from  her husband. Nor did the conferment of the status of  a statutory  tenant under the various laws passed by the  legislature amount  to an  acquisition  of  a  self- acquired interest by the widow. [272B, D)      (b) The  words "inherited  an interest" occurring in s. 172 are not defined in the statute and, therefore, they must be deemed to be of the widest possible amplitude. [272F]      (4) Section  174 applies  only to  such cases where the widow did  not inherit  an interest from her husband but had an independent  interest in  the holding which she possessed as her  self-acquired  property  Under  s.  174  it  is  the interest in  any holding which devolves and not the holding. The language  used in  Ss. 172  and 174 of the Abolition Act unmistakably brings  forth the  distinction  between the two contingencies in which the two sections are to apply.                                                     [273E-F]      (5) The  High Court  having found  as a  fact that  the mother had inherited the property initially from her husband erred in  law in  not applying  the provision of s. 172 read with s.  171 of  the Abolition  Act as a result of which her husband’s brother’s  son was  entitled  to  succeed  to  the estate  left   by  her   in  preference   to  her   daughter (respondent). [271H]      (6) The  origin of  the title  of  the  mother  lay  in inheritance of  the estate of her husband however limited or precarious it  might have been. The succession to the estate of the mother would have to be governed by the provisions of s. 172  of the  Abolition Act.  In the  order of  succession given in  s. 171  brother’s son  was  a  preferential  heir. Before the  amendment of  the Abolition Act in 1954, married daughter was completely excluded from inheritance.                                                     [274G-H]      In the  instant case  the respondent  having married on

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the death  of her  mother in  1952 the  holding held  by the mother  would   devolve  on   the  appellants   father   and thereafter, on the appellant as heir to his father.      (7) The  expressions ’heir  of a  tenant’ and ’shall be entitled to  retain occupation’  occurring in  s. 48  of the Rent Act 1886 before its amendment in 1921 clearly postulate that the  right to  retain the  occupation of  the lands  in dispute was given to the heirs of the deceased tenant, which clearly indicated  that the  person who  retained occupation would inherit  or succeed  to  a  limited  right  which  the deceased tenant possessed under the Act. [273A]      In the  instant  case  on  the  death  of  her  husband occupation of the. tenancy by the mother was by no way other than as  heir of  her husband.  It cannot  be said  that the occupation of the lands by the mother on her husband’s death was purely in her individual or independent capacity or that her possession  of the  lands amounted  to her self-acquired property. [273D-E]      (8) Whether  a decision  is given  in  appeal  from  an original suit  or in a writ petition the ratio is binding on the  subsequent   Division  Bench  and  merely  because  the previous Division  Bench judgment  was given  in a  suit the subsequent Division  Bench cannot  refuse to follow the same on the  ground that  it was hearing the proceeding in a Writ petition. The  rule of  judicial precedent is a salutary one and is aimed at achieving finality of judgments. In case the Division Bench  under  appeal  wanted  to  differ  from  the previous decision of the Division Bench of the same court it ought to have referred the matter to a large bench. [271F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 901 of 1968.      Appeal by  special leave  from the  judgment and  order dated the  5-10-1966 of  the High  Court  of  Judicature  at Allahabad in Special Appeal No. 97 of 1965.      J. P. Goyal and A. G. Ratnaparkhi for the Appellant.      G. N. Dikshit and M. V. Goswami for Respondents. 264      The Judgment of the Court was delivered by      FAZAL ALI.  J. This  is  an  appeal  by  special  leave against the  judgment of  a Division Bench of the High Court of Allahabad dated October 5, 1966, and raises a question of law regarding  the applicability  of ss.  172 and 174 of the U.P. Zamindari  Abolition and  Land Re  forms Act, 1950 (Act No. 1 of 1951). ,,      It appears that the case had a checkered career and the dispute between  the parties  passed through  several phases both before  the   Revenue Courts  and in the High Court. In order to  appreciate the  point  of  law  involved  in  this appeal, it  may be  necessary to  give a  resume of be facts which culminated  is the  judgment of  the High  Court under appeal. The  dispute refers to lands comprised in Khata Nos. 1002, 1344  and 1411 of village Bishunpur in the District of Rae Bareli  (U.P.). It  is not  disputed that  these Khattas originally belonged  to one  Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin. Ramcharan appears to  have died  issueless but Ramadhin died leaving a widow Smt.  Menda and   a  daughter from her Smt. Phoola who was respondent  No. 1.  The other  son Gurdin died leaving a son Jit  who had  contested the  present proceedings against Smt. Phoola.  During the pendency of the present proceedings Jit also died and the proceedings have been continued by his

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son Ram  Jivan   Lallu. The  District of  Rae Bareli fell in what  was   previously  known   as  the  Oudh  Area  of  the United(1)Provinces. The  dispute between the parties appears to have  arisen on  the death of Ramadhin one of the sons of Harbans who  died in  1916 leaving  behind  his  widow  Smt. Menda. At  the time  of the  death of  Ramadhin in  1916 the tenancy  of  the  lands  in  dispute  was  governed  by  the provisions of  the Oudh  Rent Act, 1886-hereinafter referred to J  as ’the Rent Act of 1886’. Under the provisions of the Rent Act of 1886 Smt. Menda was to continue in possession of the lands  as an heir of Ramadhin but only  during the fixed period of  the tenancy  on the  rent payable to the landlord and was  not entitled  to renewal of the same. The terms and conditions of  the tenancy  at the  time  of  the  death  of Ramadhin were governed by s.48 of the Rent Act of 1886 which applied to  the oudh  Area where  the lands  in dispute were situate. Under  s.48 of  the Rent  Act of 1886 it is obvious that on   It the death of a tenant his widow was to continue in occupation  of the lands for the unexpired portion of the period for  which the  deceased tenant  might have  held the holding. Accordingly  Smt. Menda  continued   to occupy  the lands after the death of her husband in 1916. Meanwhile five years later  the Rent Act of 1886 was amended by U.P.  Act 4 of   1921 under  which the  status of a statutory tenant was con feared on a person who was in possession of the lands on the date  when the  amendment came into force. The amendment introduced a  substantial change  in s.48 of the Rent Act of 1886 and added clause’(1)(18) to s.3 which runs thus:           "(18) "Statutory  tenant" means  a tenant  to whom      section  36 or section 37 applies.           Explanation.-A person  who succeeds  as an heir of      a(1)statutory tenant  under section  48  shall  not  be      deemed to be 265      a statutory  tenant unless he has obtained a patta from      the   landlord or  has remained  in occupation  of  the      holding for  three years  after the  expiration of  the      period for which he is entitled to retain occupation of      the holding under section 48:           "Provided that  when a  holding is  held by two or      more co-tenants  no person  who succeeds  as an heir of      any such  co tenant under section 48 shall be deemed to      be a  statutory tenant  of the  holding unless  he  has      obtained a  patta from the landlord, or has remained in      occupation of  the holding  for three  years after  the      expiration of the period for which the heir of the last      surviving co-tenant is entitled to retain occupation of      the holding under section 48." By virtue  of the  Explanation extracted  above, a tenant to whom ss. 36 and 37 applied would be deemed to be a statutory tenant. Section 36 of the Rent Act of 1886 runs thus:           "Every tenant,  not being a tenant with a right of      occupancy or  a sub-tenant, shall be entitled to retain      possession of  the  holding  occupied  by  him  at  the      commencement of the Oudh Rent (Amendment) Act, 1921, at      the rent then payable by him, for a period of ten years      from the  date of  the last  change in  his rent or the      last alteration in the area of the holding, or where no      such change  or alteration  has taken  place, from  the      date on which the tenant was admitted to the occupation      of the holding." - As Smt.  Menda was  in possession of the holding at the date when the  amendment came  into force,  she would  be clearly governed by  s. 36  and not  s. 37  of the  Rent Act of 1886 which deals with tenants who were admitted to the occupation

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of the holding after the coming into force of the amendment. Under s.  36 the  widow was entitled to retain possession of the holding  acquired by  her for a period of ten years from the date  on which she was admitted to the occupation of the holding. Thus  the combined  effect of s. 3(18) and s. 36 of the Rent  Act of 1886 would be to clothe Smt. Menda with the status and the rights of a statutory tenant. Section 48 made the status  of a  statutory tenant heritable and provided as follows:           "(1) When statutory tenant dies, his heir shall be      entitled to  retain occupation  of the  holding at  the      rent pay  able by  the deceased  for a  period of  five      years from  the date  of the  tenant’s  death,  and  to      receive compensation  under the  provisions of this Act      for improvements,  if any,  made on  the holding by his      predecessor in interest, but shall not be entitled to a      renewal of the tenancy.           Provided that  a person who succeeds as an heir of      a deceased tenant to whom clause (e) of sub-section (1)      of section  62A applies  shall be  entitled  to  retain      occupation of  the holding  at the  rent payable by the      deceased only for 266      the unexpired  portion of  the statutory  period of the      deceased tenant.           (2) Subject  to any rights which he may have under      section 22  as a  representative  of  the  deceased,  a      collateral relative  who did  not at  the date  of  the      death of the, deceased, share in the cultivation of the      holding, shall  not be  deemed to  be an  heir  of  the      deceased within the meaning of this section." In the  instant case  as Smt. Menda had succeeded as an heir to her  husband before  the amendment of s. 48 her case will be governed  by the  provisions of  s. 48  and she  would be entitled to  retain possession  of the  tenancy but not to a renewal thereof.  It appears  that soon  after the  death of Ramadhin the  Court of  Wards claimed  that the  tenancy had escheated to  the State  because Ramadhin  had left no heirs and that  Ramadhin was  only a  tenant at  will. Smt.  Menda appears to  have resisted  the claim  of the Court of Wards. which resulted  in proceedings  before  the  Revenue  Courts which ultimately  found that  Smt. Menda  had  acquired  the independent rights of a statutory tenant and was, therefore, not liable  to be  ejected at  the instance  of the Court of Wards. This  order was  passed by the Assistant Collector on June  4,   1926  and  thereafter  Smt.  Menda  continued  in possession of  the holding  as a  statutory tenant under the amended Rent Act of 1921.      We might  mention here  that previous to the passing of the U.P. Tenancy Act, 1939 the areas of Oudh and Agra in the United Provinces  were governed  by two separate Acts so far as the  tenancies were  concerned. The  areas in  Agra  were governed by  the Agra  Tenancy Act  and those in Oudh by the Oudh Rent  Act.‘The U.P.  Tenancy Act  17 of 1939 appears to have consolidated the tenancies in the whole of the Province and the  legislature passed  one Act  which would govern all the tenancies  in the  entire Province. The U.P. Tenancy Act 17 of  1939 was  passed on  December 16,  1939 and  by s.  2 there-  of the Agra Tenancy Act, 1926 and the Oudh Rent Act, 1886 were  repealed. Section 29 of the Tenancy Act conferred the status  of a  hereditary tenant  on any person who was a tenant of the land at the commencement of the Act. Thus Smt. Menda who  continued to  be in  possession  as  a  statutory tenant acquire  the status  of a hereditary tenant, under s. 29(a) of the Tenancy Act which runs thus:

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          "29.  Every person belonging to one or another of      the following classes shall be a hereditary tenant, and      subject to   any  contract which is not contrary to the      provisions of  section 4  shall be  entitled to all the      rights conferred, and be subject to all the liabilities      imposed on hereditary tenants by this Act, namely:           (a) every  person who  is, at  the commencement of      this  Act,  a  tenant  of  land  otherwise  than  as  a      permanent tenure-holder,  a fixed-rate tenant, a tenant      holding on  special terms  in Oudh,   an ex-Proprietary      tenant, an occupancy tenant, 267      except as  otherwise provided  in this  Act as  a  sub- tenant or a  tenant of sir :" The Tenancy  Act having  conferred heritable  rights on  the tenants to  which s.  29 applied  also laid down an order of succession in  which the  rights of  the tenants  would pass after the  death of  the tenant.  Sections 36  and 37 of the Tenancy Act  provided two  different modes  of devolution in the case  of the  death of  a female tenant. Section 36 runs thus:           "36 (1)  When a female tenant, other than a tenant      mentioned in section 34, who either before or after the      commencement of this Act has inherited an interest in a      holding as a widow, as a mother, as a step-mother, as a      father’s mother,  or, as  a daughter  dies or  abandons      such holding,  or surrenders such holding, or a part of      such holding  or, in the case of a tenant inheriting as      a widow  or as a daughter, marries such holding or such      part of  such holding  shall, not withstanding anything      in section  45, devolve in accordance with the order of      succession laid  down in  section 35 on the heir of the      last male  tenant, other than a tenant who inherited as      a father’s father under the provisions of that section.                x    x    x    x "           Section 37 of the Tenancy Act runs-thus:           "when  a   female  tenant,  other  than  a  tenant      mentioned  in  section  34  or  section  36  dies,  her      interest in  the holding  shall devolve  in  accordance      with the order of succession given below:-           (a) male  lineal descendants  in the  male line of descent:                     Provided that  no member  of this  class      shall inherit  if any  male descendant  between him and      the deceased is alive;           (b)  husband;           (c)  unmarried daughter,           (d)  daughter’s son;           (e)  brother           (f)  brother’s son." It will  be seen  that under  s. 36  of the  Tenancy Act the heirs of  the husband  precedence over  the daughter  or the unmarried daughter,  whereas in  the case of a female tenant falling under  s. 37  of the    Tenancy  Act  the  unmarried daughter gets  precedence over  the brother the or brother’s son. In  other words, the policy of the law was that where a female tenant  died having  inherited  an  interest  in  the property from her husband then the male heirs of the husband should get preference over the female heirs. Where, however, the female  tenant had  died having an independent and self- acquired interest  in the  holding, her property was to pass in a  different manner.  We are not concerned in this appeal with either  s. 36 or s. 37 of the Tenancy Act, because Smt. Menda had died some time in September 1952 -L522SCI/76

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268 when the  U.P. Tenancy  Act, 1939  had been  replaced by the U.P. Zamindari  Abolition and  Land Reforms  Act, 1950 (U.P. Act 1  of 1951)  hereinafter  to  be  referred  to  as  ’the Abolition Act.’      In short, therefore, Smt. Menda who originally occupied the lands  in suit  as a  tenant on the death of her husband became a  statutory tenant  under the  Rent Act  of 1921,  a hereditary tenant  under the  Tenancy Act  and  finally  she acquired the  status of  a bhumidhar under the Abolition Act which came  into force on July 1, 1952. The relevant portion of s. 18 of the Abolition Act may be extracted thus:      18. (1)  Subject to  the provisions of Sections 10, 15, 16 and 17, all lands-           (a)  in possession  of or  deemed to be held by an                intermediary  as   sir,  khudkasht,   or   an                intermediary’s grove-           (b)  held as  a  grove  by,  or  in  the  personal                cultivation of a permanent lessee in Avadh,           (c)  held by  a fixed-rate  tenant or  a rent-free                grantee as such, or           (d)  held as such by-                (1)  an occupancy tenant, ’                (ii) a hereditary tenant,                (iii)a tenant  on patta  dawami or  istamrari                     referred to in section 17                possessing the  right to transfer the holding                by sale.           (e)  held by a grove-holder,      on the  date immediately  preceding the date of vesting      shall be  deemed to  be settled by the State Government      with  such  intermediary  lessee,  tenant,  grantee  or      grove-holder, as the case may be, who shall, subject to      the provisions  of this  Act,   be entitled  to take or      retain possession as bhumidhar thereof." As Smt.  Menda had  already become a hereditary tenant under the Tenancy  Act she  automatically acquired the status of a Bhumidhar under the Abolition Act and by virtue of the legal fiction created  by s.18(1) of the Abolition Act, the lands, having been  vested in  the State Government, were deemed to have been  permanently settled  with the  bhumidhar, namely, Smt. Menda  in this  case. It  is the  admitted case  of the parties that  Smt. Menda  died some  time in September 1952, i.e. Only  a few  months after  coming  into  force  of  the Abolition Act.  The  controversy  between  the  parties  now centers round  the question  as to  who would succeed to the tenancy left by Smt. Menda. In other words, the matter to be decided is  whether s.  172 or  s. 174  of the Abolition Act would apply  to the  present case.  It is  not disputed that Smt. Menda  died leaving  a daughter  Smt.  Phoola  and  her husband’s brother’s  son Jit.  These were the two contending heirs for the property left by Smt. Menda. 269      Sections 172  and 174  of the Abolition Act, insofar as they are A relevant, may be extracted as follows:           "172. (1)  When a  bhumidhar sirdar  or asami, who      has after the date of vesting, inherited an interest in      any holding-           "(a) as  a   widow,  widow   of  a   male   lineal                descendent, in  the  male  line  of  descent,                mother or  fathers    mother  dies,  marries,                abandons or  surrenders of  , such holding or                part thereof; or           (b)       x    x    x      the holding  or the part shall devolve upon the nearest

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    surviving  heir   (such  heir   being  ascertained   in      accordance with  the provisions  of Section 171) or the      last male bhumidhar, sirdar or asami.                X     X           "174. When  a bhumidhar,  sirdar or  asami  (other      than a  bhumidhar, sirdar or asami mentioned in Section      171 or  172) who  is a  woman dies, her interest in the      holding shall  devolve in  accordance with the order of      succession given below:           (a)  son, son’s  son, son’s  son, son’s  son’s son                predeceased son’s widow and predeceased son’s                predeceased son’s  widow in  equal shares per                stripes:                     Provided firstly that the nearer shall           exclude the remoter in the same branch:                     Provided secondly  that a widow, who has           remarried, shall be excluded;           (d)  daughter;                x    x    x           (g)  brother’s son;                 x   x    x    x It is,  therefore, clear  that the mode of succession to the property of  Smt. Menda would depend on the determination of the question whether Smt. Menda had inherited an interest in any holding  or had  an independent interest in the holding. This matter  appears  to  have  been  canvassed  before  the Revenue Courts which upheld the plea of Smt. Phoola.      To begin  with on  the death  of Smt.  Phoola, Jit  was successful in  getting his  name mutated  in respect  of the Khattas in  dispute as being the nearest heir to Smt. Menda. The mutation  was made  by the Tahsilder Maharajgunj on July 30, 1954.  This mutation  appears to have been challenged by Smt. Phoola who claimed to be the daughter of Smt. Menda and therefore a preferential heir to the property as compared to Jit. In  1957 Smt  Phoola filed  a suit  under s. 209 of the Abolition Act  for the  ejectment of  Jit from  the disputed lands, on the ground that she was the sole legal heir of the      3-L522SCI/76 270 property left  by Smt.  Menda. In  the meanwhile  in 1961  a notification under  s. 4 of the Consolidation Act was issued bringing village Bishunpur m which the lands in dispute were situate under the consolidation operations. Accordingly Smt. Phoola  filed   an  application   during  the  consolidation operations before the Consolidation officer, Bachhrawan, for correction of  the records  under s.  10(1) of   "  the U.P. Consolidation of  Holdings Act  and prayed  that the name of Jit in  the Khattas  in dispute  may be  struck off and Smt. Phoola’s name  may be  mutated  therein.  The  Consolidation officer accepted  the plea of Smt. Phoola and he accordingly struck off  the name  of   it from  the Khattas and directed that Smt. Phoola being the legal heir of Smt. Menda her name be mutated  in respect  of the Khattas. Thereafter Jit filed an appeal  against the  order of  the Consolidation  officer before  the   Settlement  officer  (Consolidations),  Tahsil Maharajgunj,  District Rae Bareli. The Settlement officer by his order  dated December  26, 1961 dismissed the appeal and upheld the  order of  the Consolidation  officer. Thereafter Jit filed  a second  appeal  be  fore  the  District  Deputy Director of  Consolidation, Rae  Bareli, which was permitted under the  U.P. Consolidation  of Holdings  Act as it was in force then.  The District  Deputy Director  of Consolidation upheld the  plea of  Smt.  Phoola  and  held  that  she  was entitled ,  to inherit  the property of Smt. Menda being her legal heir in preference to Jit who was merely her husband’s

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brother’s son  and relied upon  s. 171 of the Abolition Act, and accordingly dismissed the appeal. Thereafter Jit filed a revision before the Joint Director of Consolidation who also dismissed the  revision as  being concluded  by a finding of fact. Thereafter  Jit  filed  a  writ  petition  before  the Allahabad High  Court on  December 21,  1962  and  the  writ petition was  allowed by the Single Judge on August 6, 1965. Smt. Phoola  then filed  a  special appeal before a Division Bench  of  the  Allahabad  High  Court  which  reversed  the decision of  the Sing  Judge and dismissed the writ petition filed by  Jit upholding the plea of Smt. Phoola. There after Jit moved  the High  Court for  granting leave  to appeal to this Court  and the  same having  been refused  the  present appeal by special leave has been filed in this Court.      In support  of the appeal Mr. J. P. Goyal has submitted that the Division Bench as also the Revenue Courts had taken a wrong  view of  the law  in holding  that Smt.  Phoola was entitled to  succeed to the property left by Smt. Menda. The learned counsel  submitted that   the  present case squarely fell within  the ambit  of s. 172 of the Abolition Act since Smt. Menda  had originally  inherited the  property from her husband Ramadhin  and, therefore,  according to the order of succession provided  in s.  171 of  the Abolition  Act which applied to  s. 172,  Jit who  was the  son of the brother of Ramadhin would succeed in preference to the daughter of Smt. Menda. The respondents despite service did not appear and we requested Mr.  G. N.  Dikshit to  assist  the  Court  amicus curiae  and   we  are  grateful  to  him  for  the  valuable assistance he  rendered to  us in  deciding the  complicated issues of law involved in this appeal. Mr. Dikshit submitted that at  the time   when  Ramadhin died  the tenancy was not heritable and  therefore the , question of Smt. Menda having inherited the estate of her-husband did 271 not arise  and the tenancy held by Smt. Menda must therefore be  regarded as having been acquired by her in her own right as her  self-acquired property  and, therefore, the Division Bench of the High Court and the Revenue Courts were right in upholding the plea of Smt. Phoola.      We have  gone through  the entire  record as  also  the judgment of  the Single  Judge and the Division Bench and we think that the Division Bench of the High Court has taken an erroneous view  of the law in the present case. The Division Bench found that although it was established that Smt. Menda had inherited the property from her husband Ramadhin yet the finding of  the Revenue Courts was that she had acquired the status of  a statutory  tenant independently and since there was no  error of  law in  this finding of the Revenue Courts there was  no reason  for the  Single Judge to set aside the order of  the Joint  Director of Consolidation and allow the petition. It  was argued  before the  High  Court  that  the matter was  concluded by  a Division  Bench decision  of the Allahabad High  Court in  Mst. Jaini & ors. v. Ram Prasad(1) and the  High Court  appears  to  have  brushed  aside  this decision on  a strange  process of  reasoning which does not appeal to us at all. the High Court observed as follows:           "Mr. Misra has strenuously contended that Jaini v.      Ram  Prasad   (1)supra)  is  clear  authority  for  the      proposition that even in the case of a statutory tenant      succession  would   devolve  under  section  36  which,      according to Mr. Misra is a counter part of section 172      read with  section 171  of the U.P. Zamindari Abolition      Act.  Jaini   v.  Ram   Prasad   (supra)   is   clearly      distinguishable because  that case  came up  in  appeal      before this  Court and  not in the form of a writ or an

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    appeal against  the decision  of a learned single Judge      in a writ petition." It is  obvious that  whether    a Division Bench decision is given in  an appeal  from an  original suit  or  in  a  writ petition the  ratio is  binding on  the subsequent  Division Bench,  and  merely  because  the  previous  Division  Bench judgment was  given in a suit the subsequent Division  Bench cannot refuse  to follow the same because it was hearing the proceeding  in   a  writ  petition.  The  rule  of  judicial precedent is  a very  salutary one and is aimed at achieving finality and  homogeneity of judgments. In case the Division Bench under  appeal  wanted  to  differ  from  the  previous decision of the Division Bench of the same Court it ought to have referred  the matter  to a  larger Bench but it was not open to  it to  ignore completely  the previous  decision on illogical and  unintelligible grounds  as given  by the High Court.      We are  further of  the opinion that the Division Bench having found  as a  fact that  Smt. Menda  had inherited the property initially  from her  husband erred  in law  in  not applying the  provisions of  s. 172  read with s. 171 of the Abolition Act  as a  result of which Jit being her husband’s brother’s son  was entitled to succeed to the estate left by Smt. Menda in preference to Smt. Phoola the daughter. We now proceed to give reasons for this conclusion.      (1) A.I.R. 1952 All. 852. 272      Section 172  of the  Abolition Act  as extracted  above provides that  when a  bhumidhar who  has after  the date of vesting inherited  an  interest  in  any  holding  dies  the holding would  devolve upon the heirs in accordance with the order of  succession mentioned  in s.  171 of  the Abolition Act. It is manifest therefore that in order to determine the applicability of  s. 172  of the Abolition Act we must go to the origin  of the title of the bhumidhar or the main source from "  which the  bhumidhar has  derived  interest  in  the holding. It  may be  pertinent to note here that the statute uses the  words "the  holding or  the part shall devolve" to denote that  if it  is found  that a  widow has inherited an interest in  the holding  from her  husband, then  it is the holding that  devolves and  not interest  of the widow which ceased after  her death.  Thus the  statute seeks  to make a clear-cut distinction  between a  widow who has inherited an interest from  her husband  which is dealt with by s. 172 of the  Abolition   Act  and   a  widow  who  has  acquired  an independent interest  in the  holding which is covered by s. 172 of  the Abolition  Act. The  High Court  appears to have overlooked the  fact that  merely because  Smt. Menda having initially inherited  possession or occupation of the holding from her husband acquired other types of interests merely by operation of  law, that  could not destroy the origin or the source of  her title which was inheritance from her husband. Nor can  we  regard  the  conferment  of  the  status  of  a statutory tenant or a hereditary tenant or a bhumidhar under the various laws passed by the U.P. Legislature as amounting to an  acquisition u.  of a  self-acquired interest  by  the widow. It was, however, argued by Mr. Dikshit that under the Rent Act  of 1886  before its amendment by Act 4 of 1921 the estate which  was held  by Ramadhin was not heritable at all and, therefore,  Smt. Menda  could not  have  inherited  any interest in  the tenancy  on her  husband’s death.  In  this connection the  learned counsel sought to draw a distinction between the  provisions   of the  Agra Tenancy Act which had made the  tenancies heritable and the provisions of the Oudh lenience Act  which did  not make  the tenancies  heritable.

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Although the argument appears to be extremely attractive, on closer scrutiny  it is not tenable. The words used in s. 172 of the  Abolition  Act  are  "inherited  an  interest".  The statute has not defined the word "interest" and therefore it must be  deemed to  be of  the widest possible amplitude. It will include  not only  an  absolute  interest  but  also  a limited interest,  a precarious  interest  and  an  inchoate interest or  the like.  Section 48  of the  Rent Act of 1886 before its amendment by Act 4 of 1921 stood as follows:           "48. (1)  The heir of a tenant who dies during the      currency of  the tenancy of a holding shall be entitled      to retain  to occupation  of the  holding at  the  rent      payable by  the deceased  for the  unexpired portion of      the period  for which  the deceased  tenant might  have      held without liability to enhancement or ejectment, and      to receive  compensation under  the provisions  of this      Act for  improvements, if  any, made  on the holding by      himself or  his predecessor in  interest, but shall not      be entitled to a renewal of the tenancy.           x    x    x The expressions "heir of a tenant" and "shall be entitled to retain occupation"  clearly  postulate  that  the  right  to retain the occupation of 273 the lands  in dispute  is given  only to  the heirs  of  the deceased tenant  A which  clearly indicates  that the person who retains occupation would inherit or succeed to a limited right which  the deceased tenant possessed under the Act. In the instant  case  since  Smt.  Menda  continued  to  retain occupation of the lands on the death of her husband, she did so only as the heir of her husband and not otherwise, for if that was  not to  then she  could not  have been entitled to retain occupation.  The word  ’entitled"  clearly  signifies that the  occupant must  have some right, however precarious or limited  it may  be. In  these circumstances,  therefore, there can  be no  doubt that  Smt. Menda’s occupation of the tenancy on  the death  of Ramadhin was by way of inheritance only. There  was no  other method  by which she could have a right or  claim to  retain occupation  of the holding. It is true that  the interest of Smt. Menda was a very limited one and she  could have  been  ejected  by  the  landlord  under certain circumstances.  But section  48 of  the Rent  Act of 1886 undoubtedly  conferred two important rights on the heir of the deceased tenant-(1) the right to retain occupation of the  holding  on  the  rent  payable;  and  (2)  to  receive compensation   for   the   improvements   made.   In   these circumstances,  therefore,   it  cannot  be  said  that  the occupation of the lands by Smt. Menda on her husband’s death was purely in her individual or independent capacity or that the possession  of the  lands amounted  to her self-acquired property. Section  174 of  the Abolition Act would naturally apply only  to such cases where‘ a widow does not inherit an interest from  her husband but would include cases where the female  tenant  had  an  independent  interest,  namely,  an interest which  she possessed  in the  holding as  her self- acquired property,  her stridden or the like. That is why s. 174 of the Abolition Act provides that it is the interest in any holding  which devolves  and not  the holding.  Thus the language used  in ss.  172 and  174  of  the  Abolition  Act unmistakably  brings   forth  the  distinction  of  the  two contingencies in  which the  to sections  are to  apply. The Revenue Courts  have also held as a fact that initially Smt. Menda had  inherited the  property from her husband but they have construed the conferment of the various kinds of status on Smt. Menda after she had already invented the property as

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amounting to her self-acquired property. It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words "inherited an interest in any holding" as mentioned in s. 172 of the Abolition Act.      Section 172-A of the Abolition Act was introduced by an amendment of  the Act  in  1954  which  makes  the  position absolutely clear,  by  declaring  that  where  a  sirdar  or adhivasi who  had inherited any interest in any holding as a widow, it  would be deemed to be an accession to the holding of the last male holder thereof. We are, however, not at all concerned with 8. 172-A of the Abolition Act, because Smt. 274 Menda had  died two  years before  the amendment  came  into force and  the question of succession to her estate would be governed by s. 17 or s. 174 of the Abolition Act.      In the  Division Bench  decision in  Mst. Jaini’s  case (supra) the  Allahabad High  Court had  taken the same view. Malik, C.J., speaking for the Court observed thus:           "Section 36  does not  require that the tenancy as      such should  have been inherited by the widow. All that      it provides  is that the widow should have inherited an      interest in  the holding. The mere fact that she had to      remain in  possession for  a further  period  of  eight      years before  she could  become the statutory tenant of      the holding does not mean that she acquired no interest      in the  holding as a widow. We fail to see how it could      be said,  in view  of the  language of  s. 36, that her      acquisition of  statutory rights had nothing to do with      the fact  that she  had inherited  an interest  in  the      holding as  widow of  Bhau. Section 36 was thus clearly      applicable." The Division  Bench also  relied in the aforesaid case on an earlier unreported  decision of a Single Judge of that Court in Sital  v. Suraj  Din(1) where  exactly the  same view was taken as  the one  we have  taken in  the instant  case. The observations of the learned Single Judge have been quoted by the Division Bench in the case referred to above thus:           "We can assume that she acquired on the passing of      the new  Act (Act  4 of  1921) a fresh statutory period      and a  renewal of  the tenancy  but that  does not take      away the  origin of  her title......  It is only when a      female tenant acquires tenancy rights which do not have      their origin  in inheritance  that the  case  could  be      taken out  of the‘  amble of s. 36 to be governed by s.      37." It would  be seen  that in  this case  the  husband  of  the appellant had  died in  1916 as  in the instant case and yet the Court  held that  it is  really the  origin of the title that has  to be  seen and  if the  tenancy rights  had their origin in inheritance then ss. 36 & 37 would rot apply.      For these reasons, therefore, we are satisfied that the origin of  the title of Smt. Menda lay in inheritance of the estate of  her husband  however limited or precarious it may have been.  This being  the position,  the succession to the estate of  Smt. Menda  would have  to  be  governed  by  the provisions of  s. 172 of the Abolition Act which has applied the provisions  of s. 171 regarding the order of succession. In the  order of succession given in s. 171 of the Abolition Act brother’s  son is  a  preferential  heir.  It  might  be mentioned here  that by  virtue  of  the  amendment  of  the Abolition  Act   in  1954  the  married  daughter  was  also introduced as an heir before brother’s son. But this was not the position  prior to  1954 when  the married  daughter was completely  excluded   from  inheritance.  It  is  also  not disputed that Smt. Phoola was

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    (1) Second Appeal No.421 of 1943 decided on 20-12-48. 275 a married  daughter on  the death  of Smt.  Menda. In  these circumstances, therefore,  the holding  held by  Smt.  Menda would devolve  on Ramadhin’s  brother’s son, namely, Jit and thereafter on  his heir  who is  now continuing  the present proceedings.  Thus   the  Tahsildar  Maharajgunj  was  fully justified in  mutating the  name of  Jit in  respect of  the lands in  dispute instead of Smt. Phoola. the Revenue Courts as also  the Division  Bench of  the High  Court had taken a legally  erroneous   view  in   holding  that  the  mode  of succession would  be governed by s. 174 of the Abolition Act as the  interest left  by Smt.  Menda was  her self-acquired property.      The result  is that the appeal is allowed, the judgment of the  Division Bench  is set aside and that of the learned Single  Judge   is  hereby   restored.   In   the   peculiar circumstances of  this case,  and particularly having regard to the  fact that  the  respondents  have  not  appeared  to contest the appeal before this Court, we make no order as to costs in this Court. P.B.R.                                       Appeal allowed. 276