Karamat Husain and Chamier, JJ.
1. This appeal arises out of a suit brought by the appellant for an eight anna share of the profits of a mahal of which the defendant respondent is the lambardar. The owner of a six-anna share mortgaged it to one Muhammad Yusuf Khan, who sub-mortgaged it to Zohra Begam, who was herself the owner of a two anna share in the mahal. Zohra Begam gave the lease of the whole eight anna share to the appellant, and it is on the strength of that lease that the appellant in the present cas has claimed a share of profits as against the lambardar. One of the defences to the suit was that the lease was not in force during two of the three years in question. It appears that the mortgage was redeemed in August, 1906, that is to say, at the end of 1313 Fasli. It is contended that the lease must have come to an end when the mortgage was redeemed. The lower appellate Court accepted that argument and gave the appellant a decree for only a two anna share of the profits for the years 1314 and 1315 Fasli. In second appeal it is contended that this decision is erroneous, and that the case is governed by Section 201 of the Tenancy Act. It has been found by the lower appellate Court that, notwithstanding the redemption of the mortgage, the appellant continued to be recorded as lessee of the whole eight anna stare. The suit is brought under chapter XI of the Tenancy Act. The appellant is a co-sharer within the meaning of that chapter, for it is provided by Section 166 of the Act that the word 'co-sharer ' includes the heirs, legal representatives, executors, administrators, and assigns of a co-sharer. It is as assignee of a co-sharer that the appellant has brought this suit. For the time being he is to be treated an proprietor of a share as between himself and other sharers for the purpose of the settlement of profits. It seems to me that he is a person who, within the meaning of Section 201 of the Act, is recorded as having a proprietary right entitling him to institute this suit. Under Sub--Section (3) of that Section the court is bound to presume that the appellant has a right entitling him to institute this suit., it was so held by the Full Bench of this Court in Durga Prasad v. Hazari Singh (1911) I.L.R. 33 All 799. The appellant is entitled to an eight anna share of the profits for the years 1314 and 1315 Fasli, and it is not now disputed that he is entitled to an eight anna share of the profits for the year 1313 Fasli.
2. The next point taken by the appellant is that the lower appellate court ought to have allowed him interest on the profits up to the date of the suit, at the rate of twelve per cent, per annum and not at the rate of the ten per cent as it did. In the circumstances of the case we think that the appellant has no ground for complaint in respect of the rate of interest allowed to him.
3. The third and last point taken by the appellant is that the lower appellate court is wrong in calculating the profits on 90 per cent of the recorded rental in the years 1313 and 1314 Faslis and is wrong in calculating profits for 1315 Fasli on the actual collections. The learned District Judge has given his reasons for declining to calculate profits on more than 90 per cent of the recorded rental for the years 1313 and 1314 Faslis, and we need only say that we see no reason to differ from him. The year 1315 Fasli was a very bad year. The collections were Rs. 2,077, out of the recorded rental of Rs. 3,305. It is clear that in such a year as that, the whole of the rental could not have been recovered, and we are not prepared to say that the learned Judge was wrong in calculating the profits on the actual collections.
4. The result is that we allow the appeal, modifying the decrees of the courts below, give the appellant a decree for Rs. 2,664-13-8, with interest, from the date of the institution of the suit to that of realization, at the rate of six per cent, per annum. The parties will pay and receive proportionate costs in all three courts. Interest will not be calculated upon costs.