Iqbal Ahmad, C. J.
1. I agree with my brothers Allsop, Ismail and Dar that the mortgage made by Balkaran Singh in 1927 was valid and that both the appeals must fail. That there is considerable and almost alarming conflict of judicial opinion on the questions of law that arise for decision in the present appeals admits of no doubt and, accordingly, the principle of stare decisis cannot be invoked in the decision of these appeals. The relevant case law has been noticed in detail in his judgment by my brother Dar and I, therefore, refrain from entering into a discussion of those cases. It is, however, manifest that the divergence of judicial opinion in this province on the questions involved has led to considerable confusion, and it is about time that the Legislature should step in and prevent that confusion from becoming worse confounded. My reasons for arriving at the conclusion indicated above are briefly as follows :
The right of transfer is a fundamental incident attaching to every description of proprietary right unless such right is barred by any express or implied provision of law. The Transfer of Property Act (4 of 1882) codifies the law of transfer applicable to British India and in that Act there is no provision debarring a co-owner from transferring his interest in joint property. It follows that one of several co-owners has a right to transfer his interest in joint property. Such transfer by a co-owner, however, cannot adversely affect, in any respect, the rights of other, co-owners. Nevertheless, the transferee from the co-owner will be entitled to step in the shoes of his transferor and to claim the enjoyment of the right that belonged to his transferor prior to the date of the transfer. It is, therefore, clear to my mind, that a joint sir-holder is fully competent to transfer his proprietary interest in a joint sir plot. The transferee in such a case will acquire proprietary interest of the transferor in that plot. Sir right is, however, not transferable except to the extent indicated by Section 6, Tenancy Act (3 of 1926). In case of transfer of a sir plot the transferor becomes, by operation of law, entitled to exproprietary rights. To put the matter in another way. The component parts of sir rights are : (1) proprietary rights, and (2) cultivatory rights. The law permits the transfer of proprietary but, speaking generally, forbids the transfer of cultivatory rights and, therefore, on the transfer of a sir plot, the transferee acquires the proprietary rights of the transferor but not his cultivatory rights. The cultivatory rights remain in the transferor and it is this right which, after the transfer, the law secures to the transferor in the shape of exproprietary rights.
2. The propositions set out above lead to the irresistible conclusion that in the event of a transfer by one of several joint sir-holders of his interest in a joint sir plot, the transferee acquires the proprietary interest of his transferor in the plot and the transferor, by operation of law, becomes entitled to claim exproprietary rights. If he does claim ex. proprietary rights the law (Section 36, Land Revenue Act) provides the method by which the area in which he has acquired such rights are to be demarcated. It is however, open to a person to forgo his rights and, therefore, if the transferor does not claim exproprietary rights those rights are extinguished. In such a case the question arises whether the remaining sir-holders do or do not acquire sir right over the whole plot. The Board of Revenue has held that they do and, after giving my best consideration to the question, I am in entire agreement with the Board on this point.
3. In the appeals before us, it is common ground that, by virtue of an arrangement between the various joint sir-holders, the joint sir khata was partitioned and plot No. 822/1 was allotted solely to Balkaran Singh, and he entered into, and remained in, exclusive possession of that plot, and was in such possession on the date of the mortgage of 1927. Apart from all legal technicalities, the effect of the arrangement call it an exchange or an informal partition was that each joint sir-holder, during the continuance of the arrangement, became entitled to separate specific plots of. sir land and held the same as his exclusive property and sir. In other words, so long as the arrangement was not legally put an end to, each one of the joint sir-holders was, to all intents and purposes, the exclusive proprietor and sir-holder of the entire plot given to him by virtue of the arrangement.
4. Now, it cannot be disputed that a person, who is the exclusive proprietor and sir-holder of a specific plot of land, has the right to transfer his whole proprietary right in that plot, and if he does not, after the transfer, claim exproprietary rights, no exproprietary rights will come into existence, and, in such a case, the transferee will be entitled to actual possession of that plot. I fail to appreciate why similar consequences should not follow in a case where, by an arrangement between several joint sir-holders, one single individual has been put in separate possession of what before the arrangement was a joint sir plot and has thus virtually become, for the time being, exclusive proprietor and sir-holder of that plot. In the case before us, as Balakran was the exclusive sir-holder of plot No. 822/1 on the date of the mortgage he, in my judgment, was fully competent to transfer that plot. After the transfer he did not claim exproprietary rights and those (rights were extinguished. The mortgagees were, therefore, entitled to continue in peaceful possession of the plot till the arrangement above referred to was put an end to by the other cosharers. If and when that arrangement is put an end to, the mortgagees will, by the operation of the doctrine of substituted security, become entitled to the proprietary rights of Balkaran in the other joint sir plots and in that case they (the mortgagees) will not be entitled to remain in; actual possession of the plot, and the only remedy open to them will be to claim profits from the revenue Court.
5. There are two second appeals by Ramraj Singh. In S. A. No. 1241 of 1935 he is the defendant appellant and in S. A. No. 234 of 1936 he is the plaintiff appellant. Suit No. 438 of 1932, giving rise to S.A. No. 234 of 1936, was instituted by Ramraj Singh against two mortgagees, Rajendra Singh and Narendra Singh, for possession of plot No. 822/1 in khewat No. 1 of village Chillupur and for mesne profits. Suit No. 482 of 1932, giving rise to S.A. No. 1241 of 1935, was instituted by Rajendra Singh and Narendra Singh, the aforesaid mortgagees, against Dip Narain Singh, son of Balkaran Singh, an infant son of Dip Narain Singh, Ramraj Singh -- the appellant before us --and Mt. Lachmania, a cosharer and relative of Ramraj Singh. The reliefs claimed were (1) a declaration that the plaintiffs were rightfully in possession of plot No. 822/1 as mortgagees under a usufructuary mortgage of 2nd September 1927 executed by Balkaran Singh and (2) a decree for Rs. 380, being the amount of mortgage money plus interest at 2 per cent. per mensem from the date of. dispossession.
6. Suit No. 433 of 1932 was decreed. Suit-No. 482 of 1932 was dismissed as regards the prayer for declaration, but was decreed for the recovery of Rs. 380 as principal mortgage money with interest from the date of dispossession as against the heirs of Balkaran Singh--who was the mortgagor. The lower appellate Court set aside the decree for possession and mesne profits in suit No. 433 of 1932 and substituted a decree whereby it was declared that Ramraj Singh was entitled to redeem the mortgage on payment of Rs. 380. The appeal arising out of suit No. 482 of 1932 was allowed as regards the claim for recovery of Rs. 380 with interest, but it was declared that the mortgagees were entitled to remain in possession by virtue of the mortgage deed of 2nd September 1927 until such time as Ramraj Singh paid them the principal sum of Rs. 380. Against these two appellate decrees Ramraj Singh has come in second appeal. It appears that there were three sets of cosharers as follows : 1. Ramraj Singh and Mt. Lachmania, one-third, 2. Faujdar, one-third. 3. (a) Balkaran Singh, one-sixth (b) Sheobal Singh and four others, one-sixth.
7. There was a joint sir holding of sets 1 and 3 and one of the plots in this holding is the plot in suit, namely 822/1. In the revenue papers of 1322 Fasli, equivalent to 1914-15 A.D.---in which year there was a perfect partition of the village--there is an entry to the effect that this was the joint sir of the afore mentioned persons and that it was in the cultivation of Balkaran Singh; and it is common ground that from at least that year Balkaran Singh was in exclusive possession of the plot in suit by virtue of a private and mutual arrangement, and this continued until 2nd September 1927, on which date the usufructuary mortgage, which I have already mentioned, was executed by Balkaran Singh in favour of Rajender Singh and Narender Singh. It appears that Ramraj Singh's father and Mt. Lachmania had usufructuarily mortgaged their entire interest in the khewat with Balkaran Singh and five other persons. In 1924 Ramraj Singh obtained a decree for redemption against Balkaran Singh and others, i.e., the members of the third set already mentioned, and, in that suit, Ramraj Singh also obtained a decree for surplus money due from the mortgagees. Before execution of the decree in respect to the surplus money was effected, Balkaran Singh executed a possessory mortgage on 2nd September 1927 in favour of Rajender Singh and Narender Singh in respect to sir plot No. 822/1 for Rs. 380. Ex-proprietary rights were not claimed and the mortgagees were let into possession. In October 1928 the proprietary interest of the third set of cosharers in the khewat was put to sale by Ramraj Singh in execution of his decree for surplus money due to him and it was purchased by Ramraj Singh himself. In 1930 the mortgagees applied for mutation and the application was allowed in respect to one-sixth only, representing the interest of the mortgagor Balkaran Singh. In appeal the Collector held that the mortgage deed was invalid for the reason that one joint sir-holder was not competent to mortgage the plot and he held that Ramraj Singh and Mt. Lachmania were entitled to the sir rights in the plot.
8. It was in consequence of this appellate order by the Collector that the two suits which have given rise to these appeals were instituted; and I have already set out the findings of the lower appellate Court. Learned Counsel who appears for Ramraj Singh, the appellant before us, raised the following pleas in this Court : (1) A joint sir-holder who is a cosharer in a joint zamindari mahal is not competent to transfer a sir plot which is in his possession and to put the transferee in possession thereof. (2) A cosharer in a joint zamindari mahal is not competent to transfer even his own share in a specific plot, whether it be sir or otherwise and whether or not he is in exclusive possession thereof. (3) When a cosharer does in fact transfer any plot sir of which he is in exclusive possession and delivers possession to the transferee, the latter thereby ousts the other cosharers and they have a right to eject him and recover possession, I have already mentioned the mutual arrangement which has been in force since at least 1914 and whereby Balkaran Singh has been enjoying exclusive possession of the plot in suit. Section 6, Agra Tenancy Act, (3 of 1926) provides :
Sir right is not transferable except (a) by gift of the sir to a person to whom the proprietary interest in the sir is gifted or (b) by exchange of sir between cosharers in the mahal.
9. It will be seen that there is no mention of partition as such. In the case before us there was admittedly an exchange in the sense that since 1914 there has been an agreement in respect to the joint sir holding by which the appellant has been cultivating a specific plot or plots and Balkaran Singh has been separately cultivating plot No. 822/1 presumably as representing his one-sixth share. We know nothing about Sheobal and others, but it may be assumed that they too have been separately possessing a sir plot or plots. Even if we were to assume that this mutual arrangement between the joint sir-holders was an 'exchange' within the meaning of Section 6, there are no provisions in the Tenancy Act which will exempt such an exchange from the operation of the Transfer of Property Act and such exchange can only be effected by a registered instrument: vide Section 118 read with Section 64, T. P. Act. Moreover, there is nothing on the record to indicate that the parties intended anything more than that they should separately cultivate these plots for their own convenience until such time as they might choose to put an end to the agreement to hold the plots in severalty; and therefore the plot in suit remained in law the joint sir plot of the original sir-holders. This being the position, it is argued that Balkaran Singh was not competent to transfer the entire plot No. 822/1. The question which will next fall to be decided is whether the mortgage of 2nd September 1927 was good qua Balkaran Singh's own one-sixth share; and if so, what is the legal position of Ramraj Singh on the one hand, and the mortgagees on the other --who have been let into possession of the plot -- in respect to (a) the whole plot and (b) the mortgagor's one-sixth share therein
10. We have been referred to several decisions of this Court and also to some decisions of the Chief Court of Oudh. Our attention has also been directed to a conflict of opinion between this Court and the board of revenue as to whether, if demarcation proceedings are not taken under Section 36, Land Revenue Act, or at mutation, the whole plot does or does not retain its character of sir: vide on the one hand Abu Jafar v. Mohammad Kazim : AIR1930All657 and on the other hand Hanuman Rai v. Lallu Rai ('33) 17 R.D. 782, Rikhi Singh v. Bajrangi Singh ('35) 1935 R. D. 355 and Nageshwar Shah v. Bhulai ('36) 1936 R.D. 110. The earliest case to which we have been referred is a five Judge decision in Sital Prasad v. Amtul Bibi ('85) 7 All. 633. In that case the defendant had purported to convey by a sale deed a certain area of land which was admittedly his sir cultivation and the question referred to the Pull Bench was whether the proprietary rights in the sir of a mahal are distinct and separate from the proprietary rights in the mahal itself. Petheram C. J., and Straight and Oldfield JJ. gave a joint judgment. At page 635 they say :
In what are called zamindari tenures, in which the whole land is held and managed in common, a cosharer has no exclusive right in the sir land, only a right to occupy and cultivate it, and the rents of it are taken into account at the distribution of profits. It is because a person holds proprietary rights in the mahal that he is allowed to occupy some of the common land as his sir and he can occupy the sir only so long as he continues to be a proprietor in the mahal. It follows that he cannot convey his right of occupancy in this sir as something distinct from his proprietary rights in the mahal.
11. The learned Judges made a distinction, however in respect to pattidari tenures. They answered the reference by saying that the question must be determined with reference to the tenure and the conditions under which the land is held in the mahal by the coparceners, to be ascertained in each case. Brod-hurst J. agreed with the answer proposed, but he observed that where a person is the sole proprietor of the mahal, he is not restrained by any law from effecting a sale of his proprietary rights in his sir land, even though he retains proprietary possession of the whole of the other lands of the mahal, Mahmood J. took a contrary view. He held that the proprietary rights of a joint co-sharer in his sir land form an essential part of his rights in the mahal and that such proprietary rights in the sir land may be sold. In that ease the plots in question were the exclusive sir land of the transferor. The decision was with reference to the law then in force. I now turn to the later decisions of. this Court. The first of these is Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111. In that case there were three cosharers in a joint khata and two of them were apparently in possession of five plots as their khudkasht. They transferred these plots by a sale deed to the plaintiff, who sued for possession against the third cosharer. At p. 130 Lindsay J. says:
The plaintiff can only recover possession by proving her exclusive title to the plots in dispute. She cannot do this, for her own vendors had no such title. The property is undivided and although the cosharers may, by arrangement among themselves, take possession of definite portions of the joint property and hold them so as to enjoy their proper quota of the profits of the joint property, it is not permissible for one cosharer so in separate possession to alienate to a third person as his own exclusive property the portion which he has been occupying by agreement with his co-owners. Till partition takes place no cosharer is entitled to say that he has an exclusive right to any particular portion of the joint property and to confer an exclusive right on a third party by alienation without the consent of all the co-owners.
12. The next case is Mohammad Sher Khan v. Bharat Indu : AIR1928All59 , and it is a decision by Mukerji and Ashworth JJ. Certain co-owners had transferred a site in a village upon which they had built two houses. The other co-owners sued for joint possession, but the suit was dismissed upon a more or less technical ground. The lower appellate Court decreed the suit for joint possession with the transferor and that decree was upheld by this Court. The learned Judges say :
The right of co-owners to sole possession is a right which continues only so long as they possess themselves and such a right is consistent with the other cosharers' title. If, however, the cosharers transfer to a stranger, this amounts to a denial of the title of their co-owners and is inconsistent with that title. Such a transfer gives the co-owners a right to sue for a declaration that the transfer is invalid against them. It also gives them a right to sue for joint possession with the transferors and ejectment of the transferee; for the transferee gets no title to possession by the transfer. Again, the transferors by reason of the transfer and delivery of possession to the transferee must be deemed to have left the plot vacant. The co-owners thereupon acquire a right to joint possession and the transferors can no longer plead a right to separate possession in contravention of which right they have themselves acted.
13. In Kunwar Singh v. Abdur Ali Khan : AIR1928All525 , one of several cosharers took some of the joint land into his cultivation as his khudkasht and subsequently executed a perpetual lease of this land without the consent of the other cosharers, and it was held by King J. that it was not open to any one of the cosharers to execute a lease on his own authority. The defence in that case was that there had been a division of the holdings and. that the transferor had been exclusively realising rent from the late occupancy tenant of the holding in suit; but this plea did not avail the transferee appellant. The learned Judge held that the transferor had acted in contravention of Section 194, Tenancy Act of 1901, equivalent to Section 266 of Act 3 of 1926. At p. 526, col. 2, the learned Judge says :
I think it is clear that Ramdhari Singh--who was the transferor--in executing the lease without the consent of the cosharers and without the authority of any local custom or especial contract acted in contravention of Section 194, Agra Tenancy Act, 1901, and therefore the lease is invalid and is of no effect as against the plaintiffs. I may also hold that even a lambardar has no authority to bind the cosharers whom he represents by granting a perpetual lease.
14. The suit had not been framed for the purpose of having the lease cancelled and therefore a decree for joint possession with the transferee was granted. The same view was taken by Pullan J. in Ram Khelawan Koeri v. Bishwanath Prasad : AIR1932All81 and there too the transfer was by means of a perpetual lease. The defence of the transferee defendant was that there had been a partition between the cosharers whereby the holding in suit belonged exclusively to the lessor, a man named Sheobadal Lal The learned Judge says :
Even if Sheobadal Lal had brought under cultivation this waste land and occupied it as his exclusive property with the agreement of his cosharers, namely the plaintiffs, it was not permissible for him to alienate that property by means of a perpetual lease in favour of the present appellant.
15. The learned Judge followed the decision in Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111, already referred to, and also relied upon a decision of the Privy Council in Midnapur Zamindari Co. v. Naresh Narayan Roy ('24) 11 A.I.R. 1924 P. C. 144. The suit was decreed for joint possession--which is apparently what the plaintiffs bad sought. The next decision of this Court in chronological order is Qutubuddin v. Mangala Dubey : AIR1935All771 . In this case the transfer was by means of a possessory mortgage and Niamatullah J. followed the decisions in Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111 and in Mohammad Sher Khan v. Bharat Indu : AIR1928All59 . It was held that one of several cosharers in an undivided mahal cannot transfer to a stranger lands held by him in severalty and if he does so, the other cosharers are entitled to have the alienation set aside, to eject the transferee and to take joint possession with the transferor. The appellant, however, did not insist in appeal on the ejectment of the transferee and on this account the trial Court's decree for joint possession was affirmed. In Adit Singh v. Bai Bindayal Sahu : AIR1936All456 , it was held that a cosharer in an undivided mahal was not entitled to execute a mortgage in respect. of specific plots of sir, even though he might have been in exclusive possession thereof by agreement among the cosharers. This was a decision by my brother Bajpai who, after citing Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111, Ram Khelawan Koeri v. Bishwanath Prasad : AIR1932All81 and Qutubuddin v. Mangala Dubey : AIR1935All771 says :
The law, therefore, seems to be fairly well settled that a cosharer in an undivided property cannot alienate any defined portion of such property, even though he might have been in exclusive possession of the same by an agreement amongst the various cosharers. It is too late in the day for learned Counsel on behalf of the respondents to base his argument on the minority decision of Mahmud J. in the Full Bench case to which reference has already been made in an earlier portion of my judgment.
16. The learned Judge did not, however, hold the mortgage to be absolutely invalid. At page 633 he says :
The mortgage of 1897, therefore, suffered from a certain infirmity in the sense that its full effect could be defeated at the instance of a cosharer who might on partition be allotted the two plots covered by the mortgage and then the mortgagee could proceed only against the substituted security.
17. In Lachhmina Kunwar v. Makfula Kunwari : AIR1938All316 , certain plots had by a mutual arrangement been divided between various sets of cosharers. One of these sets ) of cosharers executed a perpetual lease in respect to the plots in their possession and it was held by Iqbal Ahmad J. (as he then was) and my brother Verma that the transfer was void so far as it affected the interests of the plaintiff, who represented one of the sets of cosharers. The learned Judges then go on to consider whether the transfer was valid qua the lessor's own share. They cite the provisions of Section 194 of Act 2 of 1901, corresponding with Section 266 of Act 3 of 1926, and they say :
The granting of a lease of agricultural plots is permitted by the Tenancy Act and every owner of an agricultural plot of land is, therefore, competent to grant a lease of the same. But if the plot is owned by two or more cosharers, the right to grant a lease can be exercised jointly by them all or not at all. Each cosharer has the right to enjoy possession of joint agricultural plots in conjunction with his other cosharers, but has not the right, without the concurrence of the other cosharers, to introduce a tenant on the joint plots. It is this principle that has been given legislative sanction by Section 194 of the former and by Section 266 of the present Tenancy Act. The lease by the defendants first party qua their share was, therefore, also invalid.
18. Then we have a decision by Bennet J. and my brother Verma in Ram Kripal v. Abdul Wahid ('40) 1940 A. W. R. H. C. 199. There it was held that a cosharer in undivided property who, by arrangement with the other cosharers, takes possession of a defined portion of the property is not entitled to alienate to a third person as his exclusive property the portion which he has been thus occupying by agreement with the cosharers. The transferee acquires no right by the transfer. In that case the transfer was by means of a sale deed. The learned Judges followed the decision in Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111. At page 200 they say :
When Abul Hasan executed the sale deed in respect of plot No. 308 in favour of the appellants, there were several cosharers in what bad been originally the 1 anna share in the zamindari. His position, therefore, at the most, was that of a cosharer in undivided property who by an arrangement with the other cosharers takes possession of a definite portion of the property. It is well settled that it is not permissible for any such cosharer to alienate to a third person as his exclusive property the portion which he has been thus occupying by agreement with his cosharers: Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111. He had no light whatsoever to sell plot No. 308 to the appellants and could therefore confer no title on them.
19. In Raghupat v. Sanman ('36) 1936 R.D. 369, the Board of Revenue held that one cosharer cannot, in the absence of proof of formal division, mortgage with possession certain plots recorded as joint sir on the mere allegation that he and his cosharers have divided up the sir among themselves; and if he does so, the mortgagee in possession should be regarded as in possession with the licence of the cosharers and as a tenant of the sir as a whole. Mutation cannot be effected in his favour. In that case a private division of sir was alleged, but the learned members held that it was
indistinguishable from a temporary arrangement made for the sake of convenience by which cosharers actually cultivated separately certain plots of common sir.
20. In Raghunath v. Abid Ali ('38) 1938 R.D. 472, a doubt was expressed by the board as to whether a co-sir-holder can mortgage a share of sir and whether the mortgagee can get possession on the basis of his mortgage. To return to our own Court, a contrary view was taken by Bennet J. in Chanar Singh v. Chanar Singh : AIR1935All265 . He observed :
The general rule of law in the province is that a cosharer in possession of a particular plot as his khudkasht or as his sir has a right to mortgage that plot.
21. The learned Judge did not state the grounds upon which he based this view. In Jhillar Rai v. Rajnarain Rai : AIR1935All781 , one of several cosharers in a mahal who had a 1 anna 6 pies share and had sir rights in five plots purported to create a usufructuary mortgage over the aforesaid five plots. It was held by my brother Allsop that the transferor's 1 anna 6 pies share in the five plots passed to the mortgagees, who became cosharers therein. In that ease the mortgagees had been peaceably let into possession of the plots and the mortgagor did not claim exproprietary rights. The mortgagees sowed a crop in the plots and the other cosharers forcibly appropriated part of the produce, whereupon the mortgagees sued for damages and possession. It was held by the learned Judge that since the mortgagor had never attempted to enforce his exproprietary rights, the land became like any other land in the mahal to which no particular rights of tenancy occupation attached and the plaintiffs, having entered peaceably upon the plots, were entitled to continue in possession.
22. Then there is a case from Oudh in which a learned Judge Radha Krishna J. took a view which is at variance with the view preponderatingly expressed by this Court. This is Sripal Singh v. Mata Badal ('39) 26 A.I.R. 1939 Oudh 243. The transfer in that case was by way of lease and it was held that a cosharer who has been in exclusive possession of a certain plot of land without let or hindrance by other cosharers can transfer the plot to a third person, subject to the right of other cosharers to obtain a partition of the village. It was held that the transferee in such case is entitled to continue in possession so long as his possession does not interfere with the use by other cosharers of what is in their possession and the cosharer not in actual possession has no right to eject the transferee in possession; his remedy is to obtain a partition. The learned Judge relies on certain other decisions of the same Court and he dissents from a decision by Madeley J. in Wajid Ali v. Mohammad Naziruddin Husain ('37) 24 A.I.R. 1937 Oudh 503.
23. I will now turn to the facts of the case before us. At the date of the usufructuary mortgage, Balkaran Singh was in sole possession of the plot in suit. This was by virtue of a mutual arrangement; but this arrangement was terminable and was only binding on the parties so long as they agreed to abide by it. The appellant and Mt. Lachmania retained their interest in the plot in suit and Balkaran Singh retained his interest in the plot or plots in the exclusive possession of the appellant and other co-sharers. In other words, each of the sir-holders retained his interest in the joint sir plots, which had been temporarily divided for the sake of convenience. In the revenue papers the plots were recorded as a joint sir holding. It was held by Bennet J. and my brother Verma in Haldhar Upadhya v. Ram Sumer : AIR1939All332 , that a private partition of sir plots does not destroy a cosharer's right of ownership in the plots allotted to the other cosharers. When Balkaran Singh transferred the plot in suit and when the appellant subsequently sought possession thereof, the arrangement between the co-owners came to an end. Had the appellant not purchased at auction the entire interest of Balkaran Singh, the latter would have been entitled to joint possession of the plots which had been hitherto held exclusively by his co-owners under the arrangement.
24. The main current of judicial opinion in this Court favours the view that a joint owner of land who is in possession of a plot under a private division, is not competent on his own authority to alienate such specific plot; and, as I have shown, the same view has also been taken by the board of revenue. In most of the eases which I have cited, the transfer was not upheld even in respect to the transferor's own undivided share. It is true that in some cases of our Court the other cosharers were decreed joint possession with the transferee, but that was because ejectment of the transferee was not claimed. In other cases it was held that the transferee was liable to ejectment as having no right under the deed of transfer. We have e been referred to Section 14(1) and (2), Tenancy Act, but those sub-sections will have no application if the transfer itself was invalid. Section 266 (old Section 194) is of course applicable to a perpetual lease, but that section was only specifically invoked in two of the cited cases relating to such a transfer. In another case of transfer by perpetual lease the section was not mentioned; the decision in Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111 was followed. In some of the cases to which I have referred there had been a possessory mortgage, in some a sale and in some a perpetual lease, and as regards mortgages and sales at least the decision appears to have been based on the proposition that a joint owner of land, whether sir or otherwise, is not competent to transfer a specific portion as belonging exclusively to himself. I see no difference in principle between a case where a plot is possessed by several joint sir-holders and a case where, by arrangement and for mutual convenience, it is possessed by one alone. Supposing three persons jointly own three plots in equal shares and there is no division. Each of them is interested in every inch of each plot. Assuming that any one of them is at liberty to transfer his own one-third share or a fraction of his one-third share in the sir, he must do so in terms clearly specifying that he is the owner of a fractional share; and thereafter demarcation can be effected under Section 36, Land Revenue Act, if exproprietary rights are claimed--or at mutation. But one co-owner is not competent to alienate a specific plot--in every inch of which ail the co-owners have an interest--from among the three plots. The (question then arises whether the position is in any way changed where there has been an informal division of the plots by mutual arrangement and for the sake of convenience. For my own part I do not see by what principle of law it can be said that there has been any alteration in the legal position and I do not think that one co-owner is competent to transfer the specific plot which is in his possession by virtue of such an arrangement In such circumstances there is no formal partition; and all the plots were here recorded in the revenue papers as a joint sir holding.
25. Having found that a joint sir-holder cannot legally transfer the specific plot of which he is in possession under an informal arrangement, I must now consider Whether the mortgage in suit was valid qua the mortgagor's own undivided share in the plot, The deed purported to alienate in its entirety a specific plot. This, according to my finding, could not legally be done; and I feel very doubtful whether, assuming that Balkaran Singh was competent to transfer his own undivided share in a single plot in the holding, the deed can be held to operate as a transfer of even that undivided share, a transfer which, as such, it did not purport and was never intended to effect. When Balkaran Singh mortgaged the whole plot, he arrogated to himself a title which was not his and thereby repudiated the title of his co-owners. I am inclined to agree with the dictum of Mukerji and Ashworth JJ. in Mohammad Sher Khan v. Bharat Indu : AIR1928All59 (cited in an earlier part of this judgment) that a transfer of a plot by one co-owner to a stranger will amount to a denial of the title of the transferor's co-owners and the deed is liable to be set aside in its entirety. In Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111, also cited above, Lindsay J. at p. 130 observes :
The vendors, (the Judge remarks), did not affect to transfer their undivided share or a portion of it. What they did was to ear mark certain plots and transfer them as if they were the exclusive owners of them. The judgment of the lower Court is attacked here on various grounds, but it seems to me that there is no answer to the reasoning of the learned Judge.
26. When a person transfers his own fractional share only, it is for the transferor to claim exproprietary rights and to apply for demarcation, if he so desires, under Section 36, Land Revenue Act; or if he fails to do so, the transferee, if in exclusive possession, as here, or in joint possession, may ask for demarcation in mutation proceedings. If the transferee is out of possession, the remaining sir-holders will hold the alienated share as khudkasht and the rest as sir, and this will continue until the alienated share is demarcated off, whether at partition or by other appropriate proceedings. When the alienated share has been thus demarcated off, it will become like any other land. It may be cultivated by a cosharer and become khudkasht or it may be let out to a tenant. It seems to me that, when an undivided share is transferred and the exproprietary rights which automatically accrue are not claimed, the alienated share which has ceased to be sir ceases also to be the subject of an exproprietary tenancy. In the case before us if the deed be held valid qua the transferor's own undivided share, it will mean that the mortgagees who have taken possession of the whole plot under the deed have, so to speak, turned the tables on their co-owners by forcing them to take proceedings, whether by partition or as otherwise advised, so that the possession of the mortgagees shall be confined to an area proportionate to the undivided share of their transferor. This the mortgagees cannot be allowed to do.
27. The question before us is not easy of decision, and it is contended that in the cases cited it was never urged that the alienation was good quoad the transferor's own undivided share. But this is not so, for I have shown that in at least two instances the question was raised and discussed. In other cases also, the transfer was not upheld even as regards the undivided share of the transferor. Upon the whole matter I have arrived at the conclusion that Balkaran Singh was not competent on his own authority to execute this mortgage bond in respect to plot No. 822/1 and its validity can be impugned even as regards his own undivided share. Even if I had some doubt as to whether the fractional share did or did not pass, I do not think that the arguments for the opposite view are so cogent and compelling as to justify us in departing from the view which has been generally expressed by this Court and I should be inclined to stand by that view on the principle of stare decisis. The question remains whether the respondent mortgagees are or are not equitably entitled to a refund of the sum of Rs. 380. In Bahoran Upadhya v. Uttamgir ('09) 33 All 779 12 I.C. 112, it was held that the mortgagor of an occupancy holding who has put the mortgagee in possession cannot recover possession upon the ground merely that the mortgage is void under the provisions of the Agra Tenancy Act, 1901, without repaying to the mortgagee the money which he has received from him. In the case now under appeal it was not the appellant, but Balkaran Singh, who received the consideration. I agree generally, however, with the view which the lower appellate Court has expressed on the assumption that the mortgage deed is liable to be set aside. The learned Judge says :
Under the altered circumstances, the position of B. Ram Raj Singh is not that of a mere cosharer, but by virtue of his having purchased the zamindari property of the mortgagor at a time when the mortgagee was in possession, be stepped into the shoes of Balkaran Singh and be could not be allowed to do that which Balkaran Singh himself could not have done. Balkaran Singh himself could not have dispossessed his mortgagee without paying the mortgage money and it would be wholly inequitable to allow his successor-in-title to dispossess the mortgagee without paying the mortgage money. It has been argued that B. Ram Raj Singh had no notice of the mortgage at the time of the auction sale, but if the registered mortgage deed was in itself not notice to him, the possession of the mortgagee at the time of the auction sale was certainly notice to him, as he resides in the same village.
28. In my opinion the appellant is not entitled to possession without first paying to the mortgagees the sum of Rs. 380.
29. I have had the advantage of seeing my brother Dar's judgment and I concur in his conclusions. I expressed my views in Jhillar Rai v. Rajnarain Rai : AIR1935All781 but there is a passage in my judgment which requires some comment. I said:
One may conceive of a case where two sons may inherit two identical houses from their father. No doubt if they immediately entered into a partition it would be very convenient for them each to receive one of the houses but that would not prevent one of the sons prior to a partition from transferring his half share with the result that the other son at any subsequent partition might not obtain a whole house.
30. I would like to explain that these remarks were not intended to imply that any co-sharer by his unilateral action could deprive any other cosharer of his undoubted right to demand a fair and equitable partition of the common property or could hamper the discretion of a Court making a partition to adjust the equities between the parties who appeared before it. Every cosharer in common property has two rights, namely, the eight to use every part of the property subject to the rights of the other cosharers and the right to claim a just partition. It seems to me that each cosharer can transfer his right of user unless there is any specific provision in law which prevents him from doing BO, but that he cannot deprive the other cosharers of any rights which they may have including the right to a partition.
31. The law governing the transfer of property is contained in the Transfer of Property Act. Section 6 of that Act says that property of any kind may be transferred except as otherwise provided by the Act or by any other law for the time being in force. There is nothing in the Act which prevents a cosharer in common property from transferring his interest in any specific part of the property if he does not transfer his share or any part of his share in the whole. There is no other specific Act or rule of law which would prevent him from doing so. If there was a general rule one would expect to find it in the Transfer of Property Act. Section 4A of that Act contemplates a transfer by a co-sharer or co-owner not only of his share in the property but of any interest which he may have therein. There is a specific provision curtailing the rights of a transferee from a co-owner to joint possession or part enjoyment of a dwelling house belonging to an undivided family, It is one thing to say that a cosharer or co-owner by transferring his interest in a specific part of common property cannot prevent other cosharers at a partition from being given the whole of the specific property transferred if justice so requires, and quite another to say that a transfer of a specific portion is absolutely void.
32. If such a transfer were void it would lead to somewhat startling results. A common estate is the whole estate held under a common title and it is impossible in my judgment to divide such an estate into arbitrary units. If two sons, for instance, inherit an estate comprising a hundred villages from their father the whole estate is their common property and I do not see how it can be said that each village or each mahal in the estate is in itself a separate common property. It the rule applied it would apply to the whole estate with the result that a transfer by one of the brothers of his share in any village would be void. If the rule applied it would necessarily involve the proposition that any cosharer transferring his share would not be able to reserve to himself any specific part of the property. A cosharer in a revenue mahal, for example, if he transferred his share, would not be entitled to reserve to himself his share in the plot on which his residential house had been built or his share in plot in which there was a particular grove or something of that kind. If he attempted todo so, the whole transfer would be void.
33. If such results follow from the rule, it seems to me that it would require very strong authority to uphold it. I will not discuss in detail the cases which have been quoted to us and which have been mentioned by my brother Dar but in a general way ii; seems to me that the rule which has been suggested has never been considered or laid down. The decisions for the most part turn upon the principle that no person can transfer to another an interest which he does not possess. They were cases in which a cosharer had purported to transfer a whole plot in which he had, by arrangement, been given. a right of user and it was held that he could not do so because he had not become the sole proprietor of the whole plot. It is not improbable that the transferee in those eases did not wish to have a share in the plot if he could not have the whole of it and therefore did not raise the point which we have now to consider.
34. About arrangements for the more convenient enjoyment of common property I should say that their duration would depend upon their nature. They might, on the one hand, be mere temporary or seasonal arrangements and, on the other, be arrange. ments intended to subsist so long as the property was not partitioned, but whatever the duration may be of any particular arrangement I have no doubt, if it ceases, it must cease as a whole. No cosharer may, at the same time, repudiate an arrangement and claim advantages under it. In the cases with which we are dealing nobody has suggested that the arrangement for the separate cultivation of joint sir plots has come to an end and as long as the arrangement subsists I do not see why the transferee should not have the benefit of it. The cosharers who had not transferred their shares remained in exclusive possession of their sir plots under the arrangement. The transferee stepped into the shoes of his transferor in so far as the specific plot transferred to him was concerned, and if the transferor was entitled to cultivate that plot exclusively I can see no reason why the transferee should not have the same title. The transferor's right to cultivate the plots in suit was part enjoyment of the whole property which would pass, under the provisions of Section 44, T. P. Act, to his transferee.
35. In this view of the matter, we are not concerned with the question of the effect of a transfer by a cosharer of his share in a sir plot which was in fact in the joint cultivation of the whole body of sir-holders. That is a question which would have to be considered in the light of the specific provisions in the Agra Tenancy Act in so far as they might be inconsistent with the provisions of the Transfer of Property Act. I would only say that it is probably unsafe to rely upon previous decisions under the provisions of earlier Tenancy Acts when the rules about exproprietary tenancies have been modified by later Acts.
36. On the facts of the cases with which we are dealing it is necessary to distinguish between the state of affairs which arose at the time of the mortgage and the state of affairs which arose subsequently when the property of the mortgagor passed to the other co-sharers as the result of a sale in execution of the decree. In considering the validity of the mortgage, we should confine ourselves to the circumstances which existed at the time when the deed of mortgage was executed. At that time, under the arrangement, the mortgagor was entitled to possession over the plot mortgaged and other cosharers were entitled to possession over other plots. I do not think that at that time the other cosharers were entitled to avoid the arrangement with, out giving up the plots of which they were in exclusive possession. After the transfer at the sale in execution of the decree the transferee could be in no better position than his transferor, that is, the mortgagor. He could not claim possession over the plot in suit as the representative of the mortgagor who would not be entitled to dispute his right to make the mortgage. In so far as he was a cosharer originally he could not question the arrangement unless it was absolutely avoided. I would dismiss the appeals with costs.
37. The facts of this case are stated at length by my brother Collister and I agree generally with him in his conclusions and hold that Balkaran Singh who was in possession of plot No. 822/1 under a private arrangement with the other cosharers and sir-holders was not entitled to mortgage either the aforesaid entire plot or his fractional share to Rajendra Singh and Narendra Singh by the deed dated 2nd September 1927. I should, however, like to add a few words of my own as to the peculiar nature of sir and the peculiar rights of sir-holders. The relevant Local Act for the purposes of the present case is the Agra Tenancy Act (Local Act 3 of 1926). 'Sir' under Section 4 of the Act means
land recorded as sir of a landlord or of a permanent tenure-holder in the last record of rights framed before the first day of January 1902, and continuously so recorded since, or which but for error or omission would have been so continuously recorded, etc. etc.
38. It is common ground that plots recorded as sir in this particular village have been so recorded ever since the last record of rights framed before 1st January 1902 and have been continuously so recorded ever since. Under Section 7
sir shall cease to be sir (a) when it becomes the subject of an ex-proprietary tenancy, (b) when a right of occupancy is conferred therein under Section 17
and, from the facts of this case, it would appear that neither the first nor the second contingency has arisen. Section 6 provides that sir right is not transferable except (a) by gift of the sir to a person to whom the proprietary interest in the sir is gifted, or (b) by exchange of sir between cosharers in the mahal.
39. The mortgage in dispute can under no circumstances be said to be a gift and the private arrangement between the cosharers cannot amount to an exchange either. Exchange implies the determination of the interest of one cosharer in a specific property and the acquisition of that interest by another cosharer and vice versa, whereas in the case of a private arrangement the rights of the joint cosharers in each inch of each plot remain in tact and the arrangement is only for convenience of enjoyment. I am clear in my mind, and on the trend of the authorities in this Court for half a century authorities which have been referred to by my brother Collister--that a joint cosharer who is in possession of a specific plot by virtue of a private arrangement cannot transfer the specific plot in its entirety and thus, as it were, deny the title of the other cosharers. When the plot is not sir it may be argued although the current of authority in this Court is perhaps the other way --that the cosharer can transfer his undivided fractional share. If, however, the plot is a sir plot and is jointly owned by several cosharers but is in the cultivatory possession of one and the other cosharers are similarly by virtue of the same arrangement in possession of other plots, no cosharer can transfer even his own undivided fractional interest in the plot to a stranger. In spite of the private arrangement, Ram Raj Singh still continued to be a joint sir-holder in plot No. 822/1 and the transfer by Balkaran by means of the mortgage cannot effect the extinguishment of Ram Raj's interest in sir plot No. 822/1 even to the extent of one-sixth. Proprietary rights to the extent of one-sixth may have been transferred, but the question still remains whether Ram Raj loses his sir rights in that one-sixth and those rights have gone to the mortgagee. The mortgagor (Balkaran) could have claimed exproprietary rights in one-sixth under Section 14(2) of the Act, but the mortgagee can never get one-sixth of these sir rights, for by Section 6 they are not transferable.
40. If ex-proprietary rights are not claimed by the quondam landlord (Balkaran), then is it that the joint sir-holders (Ram Raj and others) lose their sir rights qua one-sixth. The contingencies mentioned in Section 7 under which 'sir shall cease to be sir' have not arisen. The Board of Revenue have consistently held that the non-transferring co-sharers will in a case like the present get the sir rights over one-sixth by survivorship, but Mukerji and Bennet JJ. in 1930 A.L.J. 1413 have held that one-sixth of the plot will become khalsa. This view omits the consideration of Section 7 of the Act. If the view of the Board of Revenue is correct, Ram Raj and others can eject the mortgagee if the mortgagee has obtained possession under the mortgage deed and the rights of the mortgagee will be confined to getting his proportionate share of the profits in a profits suit, but he cannot claim to remain in possession. If the High Court view taken in Abu Jafar v. Mohammad Kazim : AIR1930All657 is correct, the other cosharers will have five-sixths of the plot as sir and the remaining one-sixth will become khalsa. At this stage I can do no better than quote the observations of Knox J. M. in Rikhi Singh v. Bajrangi Singh ('35) 1935 R. D. 355 at page 357 :
Now, it is clear that prior to partition or to demarcation the interest of two or more cosharers in sir extends to every part and portion of the sir. If one of them dies without heirs, his share survives to the others. As stated above, the law has provided that the sir right cannot pass by the sale and that in spite of any agreement, an ex-proprietor can claim ex-proprietary rights, so long as he retains possession, or within six months, if he loses it. It provides further (Section 36 (4), Land Revenue Act) that the landholder or tenant or any cosharer directly interested in such matter may at any time during the continuance of an ex-proprietary tenancy apply for the issue of such order. If then an ex-proprietary tenancy is claimed, the revenue Court is bound to demarcate it; but if the ex-proprietary right is relinquished before it comes into existence or is never claimed, there is no process by which an ex-proprietary tenancy can be separated from the sir. This may appear to the vendees and their counsel to be 'casus omissus', but the result is in accordance with the general principles of the Revenue and Tenancy Acts. These are designed to protect the cultivating proprietor; hence the emphatic expression 'shall become an ex-proprietary tenant'. If he does not 3 want the tenancy or is unable to take it up, it is natural that the sir right should revert to the joint cosharers.
41. Balkaran, as I have indicated above, could not have transferred his possessory and cultivatory rights over the one sixth to a stranger without the consent of the other cosharers and the dictum that a cosharer who is in peaceable possession of a plot cannot be ejected by the other cosharers cannot apply to the case of the transferee, and the other cosharers can eject the transferee who has come into possession under an invalid title and in derogation of the rights of the other cosharers. The mortgagee by obtaining transfer of proprietary rights qua one-sixth could not claim the acquisition of the possessory and cultivatory rights over the one-sixth. Ram Raj and others who had before the mortgage rights over every inch of the land had not lost their rights over one-sixth, and I feel inclined to agree with the view of the board of revenue that they have obtained the same by survivorship, Balkaran having not claimed any ex-proprietary rights.
42. It is the policy of the Legislature that although proprietary rights of a sir holder may be transferable his cultivatory rights are not transferable and these two rights have got to be kept distinct. In Dwarka Das v. Rafiuddin : AIR1940All218 Bennet J. evolved a number of propositions regarding the rights of co-tenants; and joint sir holders, so far as their possessory rights are concerned, are co-tenants for all practical purposes like ex. proprietary, occupancy or statutory tenants and mutatis mutandis--(1) a number of persons holding sir are co-tenants, (2) these co-tenants are joint tenants and not tenants in common except for succession, (3) if one co-tenant dies, his interest does not pass by survivorship to the other co-tenants whether they are joint in estate with him or not, but it passes to his successors according to the order of succession, for it is provided in Section 5 of the Act that on the death of a sir-holder his sir right shall devolve on the person who succeeds to his proprietary interest in the sir, (4) if there is no such heir the interest passes by survivorship to the remaining co-tenants.
43. I may further point out that the question involved in this appeal has now more or less become of an academic nature, for I think under Section 26(3), Local Act 17 of 1939, the landlord who has transferred a portion of his share of a mahal or a specific share in a mahal shall become an ex-proprietary tenant of so much of his sir and of such portion of his khudkasht as he has cultivated continuously for three years at the date of transfer as appertains or corresponds to such part and is demarcated by the officer empowered to fix the rent of the holding under the provisions of Section 36, U.P. Land Revenue Act, 1901. I feel that if such part is not demarcated the portion remains sir for it has not ceased to be sir under the provisions of Section 11 of Act 17 of 1939.
44. I also agree with my brother Collister as regards the adjustment of the equities in this ease. It is true that Bam Raj has two capacities, one of which is that of a joint sir-holder and if that had been the only capacity it would not have been possible to hold that he should be made to pay any portion of the mortgage money to the mortgagee for he could then have sought the ejectment of the mortgagee inasmuch as Balkaran by effecting the mortgage must be deemed to have denied the rights of Ram Raj, but, in the present case, Ram Raj has also purchased the proprietary rights of Balkaran under an auction sale and he has, therefore, stepped into the shoes of Balkaran and it is not possible to keep these two capacities of Ram Raj distinct.
Mohd. Ismail, J.
45. Upon a careful consideration of the authorities cited by the parties and a perusal of the elaborate judgments of my learned colleagues Collister and Dar, JJ., I have come to the conclusion that the mortgage of plot No. 822/1 by Balkaran is valid to the extent of his own share in the plot. The question is not free from difficulty and it is time that the controversy was set at rest by legislation. I do not consider it necessary to give reasons for my opinion as my brother Dar has dealt with every aspect of the case very fully. It is conceded that this plot was in the exclusive possession of Balkaran for a very long time. It is also conceded that this plot was the joint sir of all the cosharers of the mohal. It may be assumed that every cosharer was in exclusive possession of particular plot or plots in proportion to his share by virtue of either express or tacit agreement. This arrangement must continue until it is terminated by mutual agreement or by a partition suit. Balkaran by his mortgage transferred the entire plot to the mortgagees. The transferee could not acquire sir rights because that right could not be transferred by mortgage. I, however, see no statutory bar to the transfer of proprietary right in that particular plot, as far as the interest of mortgagor is concerned. It may be that the transferee may not be able to obtain physical possession of the plot or any portion of it, because the share of Balkaran is not demarcated. He might, however, sue for profits. He will no doubt have to face difficulties in obtaining mutation of names. The revenue Courts are bound by the view of law consistently taken by members of the Board of Revenue. It is not necessary for us in this case to express a definite opinion on that vexed question. Section 14, Agra Tenancy Act, in terms does not apply. Section 14(3), however, contemplates a case where there are two or more cosharers in sir and only one of them becomes an ex-proprietary tenant in it. In that case his previous share in the sir shall be divided by the officer empowered to fix the rent of the holding under Section 36, U.P. Land Revenue Act. This demarcation will take place only when the property rights of a landlord in a mohal or in any portion thereof or in any specific area thereof are transferred in execution of a decree or order of a civil or revenue Court or by voluntary alienation. Balkaran never claimed ex-proprietary right and therefore he could not apply for a demarcation of his share under Section 86. That section, however, contemplates that in certain events joint sir may be split up and a portion thereof may be converted into an ex-proprietary tenancy. Nothing to the prejudice of the cosharers in the mohal will happen in this case. They are still in possession of the plots that fell to their share by private arrangement. If a partition through Court is sought by any of them, they will not be affected by the mortgage executed by Balkaran, and will be allotted sir in proportion to their respective share in the mohal.
46. It has not been disputed that property of any kind may be transferred except as otherwise provided by the Transfer of Property Act or by any other law for the time being in force. No such provision of law has been brought to our notice. Numerous authorities have been cited at the bar. Most of them are distinguishable, some support the view expressed above, others are clearly against that view. I need not repeat those cases as my brothers Collister and Dar have commented upon them at length. There is, thus, no such uniformity of judicial opinion as on the principle of stare decisis would compel me to hold that cosharer is not entitled to mortgage his own proprietary share in a specific plot of land which was joint sir of all cosharers. I would, therefore, dismiss both these appeals with costs.
47. I have had the advantage of reading the judgments prepared by several of my learned colleagues. Upon a careful consideration of the whole matter, I find myself in agreement with the views and conclusions of my brother Collister. With the greatest possible respect for those of my learned brothers who hold the contrary opinion, I feel that there is a strong current of authority in this Court which makes it incumbent upon us to hold that the mortgage in question is invalid : Sital Prasad v. Amtul Bibi ('85) 7 All. 633, Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111, Mohammad Sher Khan v. Bharat Indu : AIR1928All59 , Kunwar Singh v. Abdur Ali Khan : AIR1928All525 , Ram Khelawan Koeri v. Bishwanath Prasad : AIR1932All81 , Qutubuddin v. Mangala Dubey : AIR1935All771 , Adit Singh v. Bai Bindayal Sahu : AIR1936All456 , Lachhmina Kunwar v. Makfula Kunwari : AIR1938All316 , Ram Kripal v. Abdul Wahid ('40) 1940 A. W. R. H. C. 199 and Haldhar Upadhya v. Ram Sumer : AIR1939All332 . The same view has prevailed in the Board of Revenue also. By holding otherwise we shall, in my opinion, be unsettling what has been accepted as settled law. My conclusion, therefore, is that Balkaran Singh had no right to make the mortgage in question. I also agree that the appellant must pay the mortgage money to the mortgagees before obtaining possession of the plot in question.
48. These are two appeals against two judgments and decrees of the Additional Civil Judge of Azamgarh, dated 8th August 1935 by which he reversed two judgments and decrees of the Munsif Haveli of Azamgarh, dated 27th March 1933 in two suits, one by the cosharer in a joint plot for recovery of possession of the said plot with mesne profits by avoiding its mortgage against the mortgagees and the other by the mortgagees for a declaration of the validity of the mortgage and in the alternative for recovery of mortgage money against the cosharers. The property in suit is a plot of land bearing khasra NO. 822/1 and measuring 670 chains and it forms part of Khewat NO. 21 of Mohal Bandi Shah of village Chilupur in Azamgarh District. This Khewat No. 21, at all material times, was owned by a number of cosharers of whom two were Ram Raj Singh and Balkaran Singh and the latter owned a one-sixth share in the khewat. Appertaining to this khewat there were a number of sir khatas of which one was a joint sir khata of Ram Raj Singh and Balkaran Singh in which Balkaran Singh held a one-fourth share. Many years ago at some distant past a private partition had taken place between the cosharers of this joint sir khata as a result of which exclusive plots came in possession of various cosharers and under this arrangement Balkaran Singh had been in exclusive possession of plot No. 822/1. This partition though given effect to for a long number of years was not recorded in the revenue papers and the entire sir of Balkaran Singh and Ram Raj Singh and other cosharers continued to be recorded as a joint sir.
49. On 2nd September 1927, Balkaran Singh made a usufructuary mortgage of the entire plot No. 822/1 in favour of Rajendra Singh and Narendra Singh for a sum of Rs. 380 and in pursuance of the mortgage put the mortgagees in possession of the plot. In the year 1928 in execution of a money decree against Balkaran Singh and certain other cosharers the rights and interests of Balakaran Singh and those other cosharers which amounted to one-third of the khewat and in which Balkaran Singh had half interest were sold by public auction and purchased by Ram Raj Singh. Either at the time of the mortgage of 1927 in favour of Rajendra Singh and Narendra Singh or at the time of auction sale in favour of Ram Raj Singh ex-proprietary rights in sir plot No. 822/1 were not claimed by Balkaran Singh and Rajendra Singh and Narendra Singh, the mortgagees, continued in actual possession of the plot. In the year 1930 two applications were made in revenue Court, one by Ram Raj Singh for the entry of his name as sir-holder of the entire plot No. 822/1 and the other by Rajendra Singh and Narendra Singh for the entry of the said plot in their names as mortgagees. By an appellate order dated 18th August 1932, the Collector of Azamgarh holding that the mortgage in favour of Rajendra Singh and Narendra Singh was void in law refused mutation in their favour and directed the entire plot to be recorded as the exclusive sir of Ram Raj Singh.
50. This order of the revenue Court gave rise to two cross but consolidated suits in the civil Court of Azamgarh. The earlier suit was by Ram Raj Singh against the mortgagees, Rajendra Singh and Narendra Singh, for recovery of possession of the said plot by avoiding the mortgage and for its mesne profits. The later suit was by Rajendra Singh and Narendra Singh against Ram Raj Singh and the sons of Balkaran Singh, (he being dead by this time) for a declaration of the validity of the mortgage and in the alternative for recovery of mortgage money. The trial Court, the Munsif Haveli, Azamgarh holding that the usufructuary mortgage made by Balkaran Singh was invalid decreed the claim of Ram Raj Singh for possession of the plot and dismissed the claim of Rajendra Singh and Narendra Singh for a declaration as to the validity of the mortgage but it granted to Rajendra Singh and Narendra Singh a money decree for the mortgage money against the legal representatives of Balkaran Singh. On appeal the Additional Civil Judge of Azamgarh came to the conclusion that the mortgage was valid in law and he accordingly granted a declaration to Rajendra Singh and Narendra Singh of the validity of the mortgage and he dismissed the claim of Ram Raj Singh for possession of the property but granted to him a decree for redemption of the mortgage on payment of the mortgage money. Against these two decrees, Thakur Ram Raj Singh has made these two appeals and the main question for our consideration in these two appeals relates to the validity of a mortgage made by a cosharer of a joint sir plot of which the cosharer was in exclusive possession under an arrangement between the cosharers and the right of other cosharers who had entered into the said arrangement to avoid the mortgage and to recover possession of the property during the subsistence of the arrangement.
51. On 2nd September 1927 when the mortgage was made Balkaran Singh undoubtedly held a one-sixth share in khewat No. 21 of which plot No. 822/1 was a part and consequently he held one-sixth proprietary interest in the said plot. On that date Balkaran Singh was also in exclusive possession of the said entire plot and under an arrangement between the cosharers he had an undoubted right to remain in exclusive possession and in enjoyment of the same without any interference on the part of the other cosharers subject to the right of cosharers to terminate the arrangement by a mutual agreement or by a proper action for partition or for termination of the arrangement. Is there anything in law regarding the property as a joint property or as a joint sir which prevented Balkaran Singh from making a transfer of his one-sixth proprietary interest in the said plot and of his possessory interest in the entire plot in favour of Rajendra Singh and Narendra Singh for a valuable consideration during the subsistence of the said arrangement?
52. Regarding the property as a joint property pure and simple, and apart from complications of its being regarded as joint sir, it is contended that a transfer by a cosharer of a portion of joint property by metes and g bounds or in other words a transfer by a cosharer of a specific plot comprised in a larger area of joint property is void in law and this is put upon two grounds. Firstly, it interferes with the right of partition of cosharers, it necessitates partial partition of a joint property and it forces upon tenancy in common a tenant who is not interested in the entire tenancy in common and as such interferes with the unity of possession of the tenants in common. Secondly, if a transfer of a specific joint property is made in denial of other cosharers' rights the possession of the transferee amounts to an ouster of other cosharers and time runs against the cosharers from the date of the transfer and they are entitled to avoid the transfer and terminate the trespass. It is further contended that the arrangement between cosharers of the exclusive enjoyment of a joint property is personal and is not transferable and it can be terminated at will and the raising of an action to recover possession of the property transferred, in law, amounts to a termination of the arrangement.
53. That to the extent a transfer of a joint property purports to bind an interest larger than that of the transferor or to the extent it purports to bind the interest of the non-transferring cosharers the transfer is of no effect and can be ignored by the persons affected thereby goes without saying. That if after a transfer of a portion of a joint property, the portion transferred being inseparable from the joint property, the cosharers agree to continue joint, the transferee may not be able to force the partition upon them of the specific property transferred seems to be reasonable and may be accepted as correct. That if a transfer is made of an entire specific joint plot in which the transferor only has a share in denial of other cosharers' rights, those other cosharers may be able to seek a declaration of their right or for a decree for joint possession in cases where the transferor has ho right to transfer exclusive possession also seems reasonable and may be accepted as correct. That the transferee of a joint property from a cosharer runs the risk of the property being carried away to some other cosharers in partition and has to follow the property which goes to his transferor in partition is one of the incidents of such a transfer. That a transferee of a specific plot of joint property from one of the cosharers may not be able to disturb peaceful possession of other cosharers in possession of the said plot and likewise cosharers of a specific plot cannot disturb peaceful possession of a transferee of a specific plot from one of the cosharers are also incidents of joint property which follow from the decision of the Privy Council in Watson & Co. v. Ram Chand Dutt ('91) 18 Cal. 10 and Midnapur Zamindari Co. v. Naresh Narayan Roy ('24) 11 A.I.R. 1924 P. C. 144. But subject to these considerations, it is difficult to see why a transfer of a specific joint plot by a cosharer is not good to the extent of his own share in the said plot even when the transferor is not in exclusive possession of the said plot under some mutual arrangement.
54. It remains now to consider the effect of the arrangement between the cosharers upon the transfer. The legal effect of the arrangement in the first instance falls to be determined on its nature and on its terms. But assuming that the arrangement was not for any fixed period and was terminable at will, what are the rights of parties who made it? It is generally agreed that so long as the arrangement lasts and during the subsistence of it the possession of a cosharer of a specific joint plot under the arrangement cannot be interfered with and he is entitled to protection both against the cosharers and against a stranger. It is also not disputed that the rights under the arrangement are heritable and are transmitted to the legal heirs of cosharers but it is contended that the rights are not transferable to a stranger and in case of a transfer it is open to cosharers who have not joined as transferors to terminate the arrangement and an action for recovery of possession of the property transferred would, in law, amount to a termination of the arrangement. That such an agreement can be terminated by a mutual agreement of all the cosharers who had made it does not admit of any doubt. It may also be possible by one or more cosharers to terminate it by a suit for partition or by a proper action for termination of the agreement in which by a decree of the Court the arrangement may be determined and status quo ante as it existed prior to the arrangement, be restored but in my opinion, it is not open to one or more cosharers without the concurrence of other cosharers and without restoring the status quo ante to recover possession of the specific joint plot transferred under the arrangement from the transferee and an action for recovery of possession by one or some of the cosharers of the specific plot against the transferee cannot be regarded as an action for the termination of the agreement. It follows, therefore, that so long as the arrangement lasts and during the subsistence of agreement a joint property in 9 exclusive possession of a cosharer under an arrangement is also transferable and the possession of the transferee during the subsistence of the arrangement cannot be disturbed and he is entitled to possession of the property.
55. I am aware that in some States in America a view is held that a deed of transfer of a part of a joint property by metes and bounds by a cosharer is void just as in some other States in America such a deed is recognised as valid and effective. Freeman in his book on Co-tenancy and Partition, (Edn. 2) has discussed this subject from pages and para. 199 to 207 and after discussing authorities both in favour and against the view has summed up his own conclusions in favour of the validity of the transfer. We, in this country, are not trammelled with many of the technicalities which surrounded real property both in England and America, and the right to transfer immovable property in this country is primarily governed by Section 6, T. P. Act (4 of 1882), and in case of joint property by Section 44 of the said Act and the words of Section ii are sufficiently wide to permit the transfer of a part of a joint property by metes and bounds. There is some conflict of authority, more apparent than real, in this country on the question of a transfer of a part of joint property by a cosharer both under an arrangement and without an arrangement. In Kameswari Dasya v. Sishuram Deka : AIR1924Cal792 , Mookerji and Rankin JJ. have thus stated the law on the validity of a transfer by a co-owner of a joint property under the arrangement:
It is an elementary principle that where joint owners have agreed to a mode of enjoyment of joint property, it is not open to one of them to disturb that arrangement without the consent of the others. This is not inconsistent with the fundamental principle that in law each joint owner of an estate is regarded as having a joint proprietary right in the whole estate. That however is merely a right and must not be confounded with the manner of enjoying that right; it operates in strict law to prevent a co-owner from setting up a claim to any parcel as his exclusive property during the continuance of the joint ownership. But where co-owners, by arrangement, either tacit or express, take up exclusive possession and enjoyment of different parcels of the joint property, without such definition or severance of interest as would amount to partition, the Court will not interfere with the arrangement at the instance of one owner during the tenure in common and will do so only on partition so far as may be necessary to make an equitable division of the property.
56. In Jalaluddin Khan v. Rampal ('27) 14 A.I.R. 1927 Oudh 467 Stuart C. J. and Raza J. have stated the law on this subject in these words:
The rule is that one cosharer has no right to appropriate to himself a specific portion of the common land, and to exclude his cosharers from all use and enjoyment of the same without a lawful partition. But where a person has been in possession of a piece of joint land for a long time without any let or hindrance by the other cosharers, the latter have no right to eject him or his transferee or to disturb his possession or enjoyment otherwise than by seeking partition, such a cosharer or his transferee is entitled to continue in such possession, so long as such user does not interfere with the use by other cosharers of what is in their possession.
57. In Sukh Dev v. Parsi ('40) 27 A.I.R. 1940 Lah. 473 Tek Chand and Bhide JJ. following the earlier decisions of their own Court have stated the law on the subject which is summarised in the head-note of the case as follows :
If a cosharer is in established possession of any portion of an undivided holding, not exceeding his own share, he cannot be disturbed in his possession until partition. Hence, a cosharer who is in such possession of any portion of a joint khata, can transfer that portion subject to adjustment of the rights of the other cosharers therein at the time of partition. Other cosharers' rights will be sufficiently safeguarded if they are granted a decree by giving him a declaration that the possession of the transferees in the lands in dispute will be that of cosharers, subject to adjustment at the time of partition.
58. In Mohiddin v. Ibrahim ('24) 11 A. I. R. 1924 Bom. 297 Macleod C. J. and Crump J. have stated the law on the subject which is summarised in the head-note as follows:
Even before a general partition among cosharers one of them can have a possessory right over a particular plot, which right is transferable by him.
59. In Kishun Prasad v. Mt. Shubratan : AIR1937All696 Harries J. has observed:
A cosharer may mortgage his own share and if he is in possession of the property may put his tenant or even mortgagee in possession. These acts need not necessarily suggest to the other cosharers that he is being ousted from his share.
60. And in Jadunath Singh v. Hanuman Singh : AIR1931All668 , a usufructuary mortgage by a cosharer of part of his share or of specific plots of which he was in exclusive possession was accepted as valid for purposes of a profit suit amongst cosharers, the mortgagor and mortgagee were regarded as forming one unit against other cosharers in adjustment of profits. On the other hand, in Mohammad Sher Khan v. Bharat Indu : AIR1928All59 which was the case of a transfer of a joint abadi plot by a cosharer on which constructions had been made and in Qutubuddin v. Mangala Dubey : AIR1935All771 which was the case of a transfer of a joint cultivatory plot by a cosharer and in Kashi Nath v. Makchhed Tewari : AIR1939All504 which was a case of an exchange of a plot of cultivatory land by a cosharer there are certain observations of Mukerji and Ashworth JJ., in the first case and of Niamat Ullah J. in the second case and of my brother Ismail, in the third case which support the contention that the transfer by the cosharer of a joint plot was void in its entirety. In these cases the question whether the transfer may not be valid to the extent of the transferor's share was not raised, considered, and discussed and in Mohammad Sher Khan v. Bharat Indu : AIR1928All59 in which a question of arrangement and its legal effect might have arisen the point was not raised and considered. Qutubuddin v. Mangala Dubey : AIR1935All771 and Kashi Nath v. Makchhed Tewari : AIR1939All504 were Single Judge decisions and merely followed Mohammad Sher Khan v. Bharat Indu : AIR1928All59 . I cannot accept these cases as any binding authority on me for the proposition that the transfer by a cosharer of a portion of a joint property by metes and bounds when that property is in exclusive possession of the transferor under a mutual arrangement is void in law against the non-transferring cosharers. The cases in Kunwar Singh v. Abdur Ali Khan : AIR1928All525 , Ram Khelawan Koeri v. Bishwanath Prasad : AIR1932All81 and Lachhmina Kunwar v. Makfula Kunwari : AIR1938All316 cited at the bar in which a lease executed by a cosharer of a joint plot was held invalid even to the extent of the transferor's share turned upon the peculiar language of Section 194, Agra Tenancy Act, and to my mind are irrelevant on the point under consideration.
61. But the question still remains whether the power of transfer of a portion of a joint property by metes and bounds which may exist in favour of a cosharer can be exercised in relation to a property which in its nature is a joint sir. It is now contended that sir rights in a joint mahal arise in favour of a person by reason of his holding a proprietary interest in the mahal and, as such, sir rights are appurtenant to the zamindari rights in the property and therefore property which is subject of sir rights cannot be transferred independently and separately from the zamindari interest of the transferring cosharer in the entire mahal and a transfer by a cosharer of a sir plot without transferring his entire zamindari interest in the mahal in which the plot is situated, is void in law, and for this contention reliance is placed on Sital Prasad v. Amtul Bibi ('85) 7 All. 633.
62. It is further contended that in a joint sir plot all the cosharers are jointly interested in the whole and every portion of the joint plot and if one cosharer divests himself of the possession in a joint plot, the remaining cosharers retain their rights in the entire plot, and if, as a result of a transfer by a cosharer of his rights and interest in a joint air plot, exproprietary tenancy is not claimed by the transferor the remaining cosharers gain the benefit of this omission and are entitled to treat the entire sir plot as their sir and to exclude the transferee from its possession and for this contention reliance is placed upon a series of decisions of the Board of Revenue of which Hanuman Rai v. Lallu Rai ('33) 17 R.D. 782, Rikhi Singh v. Bajrangi Singh ('35) 1935 R. D. 355, Nageshwar Shah v. Bhulai ('36) 1936 R.D. 110 and Raghupat v. Sanman ('36) 1936 R.D. 369, may be taken as instances. Lastly, it is contended that in the mutual arrangement by which cosharers are put in exclusive possession of joint sir plots is implicit an understanding that the cosharers thus put in exclusive possession would only personally enjoy and cultivate the plot and would not transfer it to a stranger, and any transfer by the cosharer in exclusive possession of a joint sir plot under a mutual arrangement is in contravention of the terms of the arrangement and it operates ipso facto as a termination of the arrangement and gives a right to the remaining cosharers in a case where exproprietary tenancy is not claimed by the transferor to terminate the arrangement and to eject the transferee and for this contention reliance is placed on Jamna v. Jhalli ('20) 7 A. I. R. 1920 All. 111, Ram Kripal v. Abdul Wahid ('40) 1940 A. W. R. H. C. 199 and Adit Singh v. Bai Bindayal Sahu : AIR1936All456 .
63. A joint sir in a joint mahal in its essence is but a joint property in which one or more or all the cosharers in a mahal have acquired a right of possession and cultivation to the exclusion of other cosharers in the mahal who are not joint in the sir rights. Sir rights are by statute heritable, partially transferable and liable to extinction only in accordance with certain rules and procedure laid down in the statute. But the statute does not forbid the transfer of sir property or, in other words of the property which is subject of sir rights as distinguished from sir rights. Prior to the acquisition of sir rights the proprietary interest in every bit of property comprised in a mahal was capable of being transferred and it is difficult to see why the proprietary interest in any portion of the same property should cease to be transferable simply because sir rights have been subsequently acquired in a portion of it and because the statute forbids the transfer of sir rights only. On principle, therefore, there seems to be no reason to hold that proprietary interest of a cosharer in a sir plot is not liable to transfer just in the same way as his proprietary interest in any other portion of the mahal is liable to transfer. It may be that the transferee of a joint sir plot may not be able to secure actual possession of the plot by reason of the intervention of the exproprietary tenancy of the transferor or even by reason of the property transferred being in actual possession of other cosharers who as joint sir-holders are under statute (Section 4, last clause, Agra Tenancy Act, 3 of 1926) entitled to exclude from possession other cosharers of proprietary rights in the mahal but who are not joint in sir rights and the right of a transferee in such case is to get his name recorded in the khewat and to recover profits. But these considerations do not in any way reflect upon the validity of the transfer so far as it affects the proprietary interest of the transferor in the joint sir, plot.
64. I cannot regard Sital Prasad v. Amtul Bibi ('85) 7 All. 633 as any authority for the proposition that a portion of joint property cannot be transferred by a cosharer by metes and bounds or that proprietary interest of a cosharer in a joint sir plot cannot be transferred to the extent of the transferor's share for the simple reason that these propositions were not considered and discussed in that case. That was a case in which the transfer by a cosharer in a joint mahal of his exclusive sir only while retaining his zamindari interest in the remaining mahal was challenged by other co-sharers in the mahal and Mahmood J. held that such a transfer was valid, Brodhurst J. held that a sole proprietor could transfer his sir alone while retaining his zamindari interest in the mahal and Petheram C. J. and Straight, Old field and Brodhurst JJ. Held
that the question whether the proprietary rights of a cosharer in the sir of a mahal are distinct and separate from the proprietary rights in the mahal itself, so as to enable the owner of one share to sell and give possession of his sir alone as against his other cosharers must be determined with reference to the tenure and conditions under which land is held in the mahal by coparceners, to be ascertained in each case.
65. That case was decided upon the language of the Rent Act of 1881 and upon a consideration that sir rights were appurtenant to zamindari rights and a transfer of an appurtenance independently of main property was contrary to law and would defeat the provisions of exproprietary right which the then Rent Act in a different and restricted language had conferred upon proprietor in ease of transfer of proprietary interest. A material change has been made in the language of the Tenancy Act which came in force in 1901, 1926 and in the U. P. Tenancy Act which is now in force. Section 14 of the former Act (3 of 1926) and S.26 of the later Act (17 of 1939) both recognise the validity of a transfer of specific area by a cosharer in a joint mahal as giving rise to exproprietary rights. In view of the material change which has taken place in the language of the Statute, Sital Prasad v. Amtul Bibi ('85) 7 All. 633, in so far as it decides that a cosharer cannot transfer his exclusive sir plot while retaining his proprietary interest in the remaining mahal, cannot now be regarded as good law. Since the above decision was given, in Chanar Singh v. Chanar Singh : AIR1935All265 , Bennet J., has observed:
The general rule of law in this province is that a cosharer in possession of a particular plot as his khudkasht or his sir has a right to mortgage that plot.
66. On the question whether a joint sir in case of its transfer by one of its cosharers when exproprietary tenancy is not claimed by the transfer undergoes a change or retains its character in its entirety, there is an undoubted conflict of view between this Court and the Board of Revenue. This Court in Abu Jafar v. Mohammad Kazim : AIR1930All657 has expressed, the view that on such a transfer the joint sir land pro tanto to the extent of transferor's share is changed into khalsa land and the remaining land only continues to be the sir of the non-transferring cosharers. The Board of Revenue, on the other hand, takes the view that notwithstanding the transfer, the entire land retains its character of sir and becomes the sir of remaining cosharers. And for this view, the board mainly relies upon three considerations; firstly, that a partial survivorship prevails amongst joint sir-holders and in case of a transfer when exproprietary rights are not claimed the transferor disappears from the scene and the remaining cosharers by right of survivorship are entitled to retain the entire land as their joint sir; secondly, that sir rights could only be extinguished under Section 1, Agra Tenancy Act, (3 of 1926) by coming into existence of an exproprietary tenancy, or rights of occupancy and when these conditions are not fulfilled on a transfer, the sir rights are not extinguished and continue in favour of remaining cosharers and lastly, there would be practical difficulties in splitting up undivided sir plots in sir land and non-sir land and in maintaining revenue records. See Rikhi Singh v. Bajrangi Singh ('35) 1935 R. D. 355 and other cases of the Board referred to above.
67. On strict legal grounds, it would be difficult to justify the conclusions of the Board of Revenue. Except in certain specified cases the right by survivorship in relation to person or property is unknown to law in India. Admittedly the right of a joint sir-holder on his death passes by inheritance and not by survivorship. Admittedly on a transfer of joint sir, ex-proprietary tenancy automatically comes into existence and the interest of transferor does not pass by survivorship to remaining cosharers. If exproprietary tenancy is not claimed and is allowed to lapse, why should in the absence of any statutory provision the doctrine of survivorship, now come into play and change what has been all along a tenancy in common into a joint tenancy and give to remaining cosharers rights which they never possessed? It is also possible to take the view that Section 7, Clause (a) which provides for extinction of sir only demands that 'sir shall cease to be sir when it becomes subject of an exproprietary tenancy' and on a transfer of joint sir by a cosharer the sir by force of law becomes subject of exproprietary tenancy and on a transfer of sir the condition laid down in the statute is satisfied and it is not necessary that exproprietary tenancy should also arise in fact and it is sufficient for the purpose of statute that exproprietary tenancy may arise in law, though it may not be claimed in fact and though it may be lost subsequently by abandonment or by adverse possession. It is also open to doubt whether apart from and irrespective of Section 7, Agra Tenancy Act (3 of 1926) sir may not cease to be sir by abandonment or by adverse possession. On a transfer of joint sir when exproprietary tenancy is claimed if these rights have to be demarcated and the joint plot can be split up in two portions one containing sir and the other non-sir land, there seems to be no insurmountable difficulty in splitting up the joint plot in two areas even when no exproprietary tenancy is claimed and in any case the argument of inconvenience is hardly conclusive on a question of legal rights of parties.
68. There is yet another view of the matter which has not been discussed in eases. In a case of joint sir plot in possession of all the joint sir holders all the cosharers are entitled to remain and continue in undisturbed possession of every part and the whole of the joint plot and if one cosharer drops out the remaining cosharers can continue in possession of the entire sir plot and their peaceful possession cannot be disturbed by any proprietor in the mahal under the last para- graph of Section 4, Agra Tenancy Act (3 of 1926), by any proprietor of the mahal who is not a cosharer in the joint sir right and ex hypothesi the transferee of a joint sir plot does not become cosharer in joint sir right. The right of a transferee in such a case may be to get his name recorded in the khewat and to recover his share o profits, but he has no right to eject joint sir holders who are in peaceful possession of joint sir plots. It is not necessary for the purposes of this case to express any final opinion on this controversy. This is not a case in which a transferee of a joint sir is seeking to disturb the possession of joint sir holders who are in peaceful possession of a joint sir plot, but this is a case in which joint sir holders who had not been in possession of joint sir plot for a long time past and which sir plot was in exclusive possession of the transferor under a mutual arrangement and who has transferred the same for a valuable consideration and has put the transferee in possession of the plot, wants to eject the transferee during the subsistence of that arrangement and this brings me back to the question as to what is the legal effect of this arrangement.
69. It was contended at the bar that a private partition of joint sir amongst cosharers is only a manner of cultivation and enjoyment of joint sir and unless the partition is given effect to by revenue Court however long the arrangement might remain in operation, it can be upset by a court partition. This may be accepted as correct. It was further contended that in such a mutual arrangement there is always implicit an understanding that the possession of joint sir shall remain with the cosharer in whose exclusive possession it has been placed by arrangement and any transfer of the same to a stranger operates as a contravention of the arrangement and entitles the non-transferring cosharers to take possession of the property transferred. With this I find difficult to agree. The cosharers objecting to the transfer are in possession of the share of transferor in other joint sir plots which were put in their exclusive possession under the arrangement. While retaining the transferor's share in other joint plot and while maintaining the arrangement with regard to other plots what right have they to object to the possession of a transferee with regard to a single joint plot which was in exclusive possession of the transferor under the arrangement? If the transfer of a joint sir has been made by a cosharer on the basis of area though with reference to a specified plot which was in his exclusive possession, would exproprietary tenancy arise on that area scattered over all the joint plots and some or many of which may be in exclusive possession of other cosharers under the arrangement or would the exproprietary tenancy be confined to the entire area in the specified plot which was in exclusive possession of the transferor? It seems to me to be both just and convenient that subject to the result of partition and during the subsistence of arrangement the entire exclusive plot in possession of transferor should be taken to represent the share of transferor in other joint plots in exclusive possession of the other cosharers under the arrangement and the exproprietary tenancy should be demarcated in and confined to the plot which was in exclusive possession of the transferor. And it follows that during the subsistence of arrangement the exclusive possession of a plot of joint sir by a cosharer or his transferee cannot be disturbed.
70. Cases were cited at the Bar referred to above in which at the instance of other cosharers transfer of an entire joint sir plot by one of the cosharers was avoided in its entirety. These eases proceeded upon the assumption that the transferor of the entire plot was in denial of rights of other cosharers and to preserve these joint rights it was necessary to grant the relief claimed. The question whether the transfer was valid to the extent of transferor's share was not raised, considered, and discussed in these cases and the further question of the legal effect of arrangement by which transferring cosharer and complaining cosharer were in exclusive possession of property and the action was raised during the subsistence of the arrangement did not arise in those cases and was not raised, considered or discussed. In Adit Singh v. Bai Bindayal Sahu : AIR1936All456 decided by my brother Bajpai after the transfer a partition had taken place in which the property transferred was allotted to complaining cosharers and the ease was really disposed of on the ground that a transferee of undivided property takes the transfer subject to result of partition amongst cosharers. I cannot accept these cases as any authority for the proposition that the transfer by a cosharer of a joint sir plot is invalid even to the extent of transferor's proprietary interest in the plot or for the proposition that the mortgage of a joint sir plot in exclusive possession of a cosharer under a mutual arrangement is void and the remaining cosharers while maintaining the arrangement and retaining benefit under it can eject the transferee. On the other hand in Jhillar Rai v. Rajnarain Rai : AIR1935All781 where these points directly arose my brother Allsop has taken substantially a similar view to mine. In my opinion the mortgage made by Balkaran Singh in 1927 was valid and the mortgagee's suit was rightly decreed and the cosharers suit was rightly dismissed by the Court below. I would, therefore, dismiss both these appeals with costs.
71. These two appeals are dismissed with costs.