JUDGMENT

H. Swarup, J. - The question referred to us in this case is : "whether succession to the holding of Smt. Budha would be governed by clause (i) or clause (ii) of Section 172 (2) (a) of the U.P. Zamindari Abolition and Land Reforms Act ? (hereinafter referred to as the Act) .

2. The facts necessary in this connection are that Smt. Budha had inherited Sir and Khudkasht from her husband on his death in 1946. She became Bhumidhar after the enforcement of the Act and died in 1962. The referred question has now arisen in connection with the succession which opened on her death. Under Clause (i) succession is governed by Section 171 and it applies to cases in which the female Bhumidhar or sirdar was in accordance with the personal law applicable to her entitled to a life estate only in the holding. Under clause (ii) succession is governed by Section 174 and it applies to female Bhumidhar or Sirdar who was in accordance with the personal law applicable to her entitled to the holding absolutely. At the time the question was referred there was a difference of opinion between the decisions of two learned judges in Malkhan Singh v. Jt. Director of Consolidation, 1967 R.D. 336, and Maya Devi v. Jt. Director of Consolidation, 1968 A.W.R. 655. In the first case, the view taken was that sub-clause (i) of clause (a) of Section 172 (2) would be applicable, while in the other it was held that succession would be governed by clause (ii) . The difference in the opinions was dependant on the opinion regarding the date which was contemplated by the two clauses for the applicability of the personal law of succession. According to the first, the relevant date for consideration was the date immediately prior to the date of vesting; while according to the either, the relevant date was the date of death which will necessarily be some date after the date of vesting. Subsequently the matter was considered by a Division Bench in the case of Munna Singh v. Deputy Director Consolidation, 1969 A.L.J. 764. It was held in this case that to such a case as the present, clause (i) and not clause (ii) would be applicable. The learned counsel for the petitioner has contended that the decision of the Division Bench requires reconsideration. We however find ourselves in agreement with that decision for the reasons given therein and also for the additional reasons given below.

3. Sub-sec. (2) of Section 172 refers to cases where a Bhumidhar or Sirdar has inherited an interest in the holding as a widow, etc. before the date of vesting. The sub-section is divided into two clauses; clause (a) deals with one class of tenure holders and clause (b) with another. Clause (a) deals with cases of persons who were intermediaries of the land comprised in the holding or had held the holding as fixed-rate tenants, or ex-proprietary or occupancy tenants in Avadh or as tenants on special terms in Avadh. Clause (b) deals with the class of tenants who are not governed by clause (a) . A similar division of female tenants had existed in the U.P. Tenancy Act. S. 34 of the U.P. Tenancy Act provided that when a permanent tenureholder, fixed, rate tenant, an occupancy or ex-proprietary tenant in Avadh or a tenant holding on special terms in Avadh died, the interest of his holding would devolve in accordance with the personal law to which the deceased was subject. S. 36 of the U.P. Tenancy Act which deals with succession to female tenants other than mentioned in Section 34 holding an interest inherited as widom, etc. Such women were governed by the line of succession given in s. 35 of the U.P. Tenancy Act and not by their personal law. Thus, the tenureholders governed by Section 34, U.P. Tenancy Act are now to be governed after verting by cl. (1) of s. 172 (2) of the Act and those governed by s. 36 of the U.P. Tenancy Act are now governed by cl. (b) thereof. The division of cl. (a) into two parts is in accordance with the personal law as was applicable to intermediaries and tenureholders