W. Comer Petheram, C.J., Straight and Brodhurst, JJ.
1. There is nothing in the definition of sir-land given in the Rent Act, from which it can necessarily be inferred that the rights of a proprietor in such land are not capable of being sold apart from the other proprietary rights in a mahal, and the provisions of Section 7 only affect rights in sir land at the time when a person loses or parts with his proprietary rights in a mahal. The question of the right of a proprietor to dispose of his sir land must be determined with reference to the conditions of the tenure under which a mahal is held.
2. In what are called zamindari tenures, in which the whole land is held and managed in common, a co-sharer 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. In pattidari tenures, however, in which the lands are divided and held in severalty by the different proprietors, and each person managing his own lands, there may be lands which come within the classification of sir given in the Rent Act, but they would not seem to be on a different footing from any other land held in severalty by a proprietor.
3. We can therefore only answer the question which has been referred by saying that it must be determined with reference to the tenure and conditions under which land is held in the mahal by the co-parceners, to be ascertained in each case.
4. On the reference made to us, I observe that the proprietor of a mahal may acquire sir land for himself, or, on the other hand, possessing such land, he may allow his rights in it to lapse. There are, I believe, many estates in which there is no sir-land, and there are many landed proprietors who, from their high positions and large means, do not require to hold land as sir, and to each of whom the right of becoming an ex-proprietary tenant of such land on the sale of an estate would be of no use or value. It is possible, though scarcely probable, that a proprietor of a mahal might desire to sell his sir-land without having any intention of selling the rest of the land of his estate, or he might desire first to sell the sir-land, and subsequently to sell the remainder of the estate, because he could not, owing to his circumstances actually become an ex-proprietary tenant, and therefore wished to sell his estate without reserving any rights, and thus obtain its full value.
5. The provisions of Section 7 of the Rent Act apply only to such land as is held by the proprietor as sir at the time that he loses or parts with his proprietary rights in the mahal.
6. As I have already observed, a proprietor of an estate may allow his rights in sir-land to lapse, and, so long as a person is the sole proprietor of a mahal, he is not, so far as I am aware, 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; and I concur with my brother Oldfibld that the question must be determined in each case with reference to the tenure and conditions under which land is held in the mahal.
7. The question raised by this reference, as amended in the Full Bench, is whether the proprietary rights of one joint co-sharer 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 co-sharers. The question which has been so formulated seems to me to be a complex one, and, from my point of view, cannot be answered as a whole either in the affirmative or in the negative, because it involves more than one logical proposition. I will therefore deal with the question under two distinct heads--the first, relating to the nature of the proprietary rights which the co-sharers of a zamindari mahal hold in their sir-lands, and the second regarding their rights of possession of such lands. These two aspects of the question cannot, in my opinion, be mixed up together, because the rules of our law preclude such a course.
8. As to the first point, I am of opinion that the matter depends upon a full appreciation of the zamindari right in these Provinces in mahals, where, there being more than one proprietor, partition of the lands has not taken place. In my judgment in the case of Sahib Ram v. Kishen Singh Weekly Notes 1882 p. 192 which was heard by a Full Bench of this Court, but which unfortunately has not been reported in the Indian Law Reports, I endeavoured at some length to explain myconceptions of the zamindari rights in a mahal in these Provinces. That case related to the rights of the co-sharers in the abadi area of a mahal, but the ratio decidendi adopted by me in that case is fully applicable in principles to sir-lands also. A contrary view of the law was taken by a Division Bench of this Court in Hazari Lal v. Ugrah Rai Weekly Notes 1884 p. 103 in which it was held that the sir-land of a co-sharer in the mahal did not constitute a part and parcel of his proprietary rights, so as to render the sale of such sir-land a basis of the exercise of the pre-emptive right under the wajib-ul-arz. With due deference to the learned Judges who laid down the rule, I confess I have never been able to adopt the ruling. In bhaiyachari villages, where no partition has taken place among the co-sharers, the share of each co-sharer is represented only by the extent of land which he occupies or cultivates as his sir, and, this being so, the ruling just referred to would lead to the necessary conclusion that in such a village, notwithstanding a pre-emptive clause in the wajib-ul-arz, no right of pre-emption can prevail at all, because, ex hypothesi, the co-sharer selling his share does nothing more or less than sell his sir-land and his share in the abadi area. The anomaly (to say the least of it) of such a proposition is obvious, and without repeating all that I said in the case of Sahib Ram v. Kishen Singh Weekly Notes 1882 p. 192 I will only say that I do not understand the law in such a sense. In a joint co-parcenary of co-sharers in a zamindari mahal in these Provinces, the rights of each co-sharers are no doubt joint in the whole mahal, so long as there is no partition. But it is equally clear that these joint rights are subject to the incidents of the nature of the zamindari tenure itself. Among such incidents is the circumstance that a joint co-sharer may have a house of his own upon the joint abadi land, or that he may have possession of specific lands which he cultivates as his sir. So long as there is no partition between the various co-sharers, the abadi land upon which the house of a co-sharer is situate, as well as the specific lands which he holds as his sir, forms part of the joint property of the co-sharers of the mahal, equally responsible for payment of Government revenue, equally subject to the process called 'partition' in the Revenue Law. These are the incidents of the tenure itself, and, so long as there is no partition, none of the joint co-sharers can oust another co-sharer from his sir-land, any more than he could oust him from his house in the abadi area. And I take it as a simple proposition of the law regulating zamindari tenure in these Provinces, that a joint co-sharer could by sale convey to the vendee his proprietary rights in his house and the land on which it stands, subject of course to the incidents of the tenure itself. That the sale would be valid, so as to convey proprietary rights to such a purchaser in the specific lands upon which the house stands, cannot be doubted, and I am unaware of any reason why the same rule should not apply to sir-lands. The reason of the rule is very simple. Property which is originally joint in its nature may be specifically held by the common consent of all the co-sharers in such a manner as to entitle each co-sharer to hold specific lands. When such an arrangement, consensu omnium, is arrived at to its fullest extent regarding the cultivated area of the mahal, the zamindari tenure becomes, as I said before, a bhaiyachari tenure, because the lands occupied or cultivated by each co-sharer as his sir represent his share in the profits of the mahal. But when such an arrangement is not carried out to its full extent, and a sharer cultivates an area of land far less than the area which would represent his share in the mahal, such land as the co-sharer cultivates himself is called his sir, the profits whereof are taken into account in the bujharat, or the annual division of profits among the co-sharers.
9. Now there is no doubt in my mind that the sir-land of a co-sharer necessarily forms a part and parcel of his proprietary rights in the mahal as much as the land upon which his house stands. He originally held the right jointly with the other co-sharers in the land, which may either form the site of his house or constitute the area of his sir-land; but the moment he is allowed, consensu omnium, to build his house on joint land, or to cultivate any particular field, that which was joint and unspecified becomes definite and specified, the specific land so utilized by him being of course regarded as going to specify certain areas as forming part of his share in the joint mahal. The law respects such arrangements in the sense in which I have interpreted them, because the only process by which joint lands in a zamindari mahal can be divided so as to allot specific lands to each co-sharer is the process of partition as defined in Section 107 of the Land Revenue Act (XIX of 1873). Section 108 of the same enactment describes the persons who are entitled to claim perfect partition, and among such persons are included those who are entitled to 'specific lands' in a mahal. But the provisions of the law which have an immediate bearing upon the particular question which I am now considering are contained in Section 125 of the Land Revenue Act, which lays down that in carrying out a partition 'no sir-land belonging to any co-sharer shall be included in the mahal assigned on partition to another co-sharer, unless with the consent of the co-sharer who cultivates it, or unless the partition cannot otherwise be conveniently carried out.' This shows that the right of a co-sharer in a joint zamindari mahal in his sir-land is sufficiently specific to save it from being confused with the rest of his rights in the mahal, even when a perfect partition takes place. For these reasons I hold that sir-lands of a joint co-sharer in a mahal form an essential part of his proprietary rights in the mahal, and that he can sell his proprietary rights in such lands much in the same manner as he could have sold the whole of his share, for, in the matter of transfer by sale, what he could do with the whole, he could do with the part.
10. I now proceed to consider the second proposition involved in the question, namely, whether the sale of his proprietary rights in his sir-lands by a joint co-sharer in a zamindari mahal would confer upon the vendee the right of obtaining actual possession of such lands. Upon this point I am of opinion that the Full Bench ruling of this Court in Gulab Rai v. Indar Singh I.L.R. 6 All. 54 furnishes a full answer. Section 7 of the Rent Act (XII of 1881) is intended to confer by statutory provisions fixity of tenure as occupancy-tenants upon persons who, being proprietors at the time and holding sir-land lose or part with their proprietary rights in the mahal. Such ex-proprietary right of occupancy relates only to sir-lands as defined in Clause (4) of Section 3 of the Rent Act, and it follows that when a co-sharer divests himself of his proprietary rights in such lands, he becomes, ipso facto, ah occupancy-tenant of such lands within the meaning of Section 7 of the Rent Act, and when such-occupancy tenure is established, it cannot be transferred in contravention of Section 9 of the Act, notwithstanding any covenants made in the deed of sale. The obvious policy of the law is to save peasant proprietors in these Provinces from the consequences of their own imprudence, and that policy would be defeated if sir-land could be sold in such a manner as to operate in defeasance of the ex-proprietary right of occupancy in such lands. The reason of the rule which applies to the loss or the parting with of proprietary rights in the co-sharer's whole share in the mahal, applies also to a part of such share, so far as the present question is concerned. A co-sharer in a mahal could of course relinquish his sir-land, and reduce it to lands held by ordinary tenants; but no such question of relinquishment arises in this case, and I need not consider it. The effect of the sale of proprietary rights in sir-land would enable the purchaser to claim rent from his vendor as an ex-proprietary tenant, such rent to be taken into account in the annual division of profits, and in the reduction of the share of the vendor if he continues to have a share in the mahal. But beyond this the sale of proprietary rights in sir-land can have no effect, and would not entitle the purchaser to any such possession as would defeat the fixity of ex-proprietary tenure at which the provisions of Sections 7 and 9 of the Rent Act clearly aim. This view accords with my judgment in Tirmal Singh v. Bhola Singh Weekly Notes 1884 p. 169.
11. My answer to the reference therefore is, that the proprietary rights of a joint co-sharer in his sir-land form an essential part of his rights in the mahal, that such proprietary rights in the sir-land may be sold, but that the purchaser under such a sale could not obtain any such possession as would operate in defeasance of the ex-proprietary right in such sir-land conferred by Section 7 and secured by Section 9 of the Rent Act.