1. The question we have to decide in Full Bench in this second appeal has arisen in the following manner. Two co-sharers named Asa and Gopal mortgaged their proprietary interest with possession to Musammat Laria. The latter made either an assignment or a sub-mortgage of her interest under the mortgage for a term of twenty years to one Baldeo, with a foreclosure clause in case of non-payment. Baldeo afterwards transferred for an unexpired period of sixteen years and eleven months to the defendant-respondent Bansi the interest in the property which he had acquired from Musammat Laria. It is unnecessary to decide whether the instrument of transfer in his favour was an assignment by conditional sale of a mortgage or was a sub-mortgage. The plaintiff appellant, Nand Lal, being a co-sharer in the village, thereupon instituted this suit for pre-emption, or rather pre-mortgage, under the terms of the viliage wajib-ul-arz, which gives a right of pre-emption and of pre-mortgage when the share of a co-sharer is sold or mortgaged.
2. Now it is admitted that neither Musammat Laria nor her assignee Baldeo, nor Baldeo's assignee Bansi, is a co-sharer in the village. They are all of them strangers. It is also admitted that the plaintiff made no attempt to assert his alleged rights when the first or the second alienations were made.
3. The question we have to decide is--did the third transfer noted above give to the plaintiff appellant any cause of action on which he could maintain the present suit? The contention for the appellant is that a mortgagee in possession of the share of a co-sharer is ipsofacto a co-sharer, and that if he give an assignment of his mortgage or execute a sub-mortgage to one who is not a co-sharer, the same result ensues as in the case of an alienation by a co-sharer.
4. In my opinion that contention is unsound and cannot be supported. A co-sharer, even though he has mortgaged with possession his interest in the mahal, and so has temporarily abandoned his right to actual possession of the land, is still nevertheless a co-sharer. As such he continues to enjoy many privileges in the village. He continues to be recorded in the khewat as proprietor, and above all he retains the right of redemption. No doubt the mortgagee in possession has by contract or by statute many of the rights, and is subject to many of the liabilities, of his mortgagor. For instance, he may be entitled to sue the tenants for rent, if such be the condition of the mortgage, and he may be liable to pay Government revenue. But to my mind these very facts prove that the mortgagee in possession cannot be considered to be in law a co-sharer. For if that were his legal status, then it would require neither a contractual agreement nor any statutory provision to confer on him those rights or to render him subject to those liabilities. The vakil who appeared for the appellant was logically compelled to go so far as to contend that a lessee for a few days or weeks or months in possession of a portion, however small, of a co-sharer's property became ipso facto a co-sharer. Such a position is quite untenable. Indeed, to accede to the contention of the appellant would be in many cases to defeat the whole object of the law of pre-emption. A co-sharer in the proprietary rights of a mahal would have only to let in as mortgagee with possession or as lessee for some limited time a perfect stranger, and then on the strength of that limited right the mortgagor or lessor might sell to him as a co-sharer his mortgagor or lessor rights, and thus by two separate steps confer upon him the whole of such mortgagor's or lessor's rights in the property, which ho could not by law have conferred upon him by one single grant so long as any co-sharer chose to exercise his pre-emptive right. Such a contention to be successful must be supported by a strong consensus of authority.
5. In support of the appellant's contention the case of Salik Sahu v. Jafar Ali, Weekly Notes, 1881, p. 84, was cited. In that case it was held that 'the term 'co-sharer' must be taken to mean the transferee for the time being of a co-sharer's interest.' I am unable to concur in that dictum if it is to be taken as one of general applicability, though it may have been correct in the case in which it was pronounced. For I notice that in that case the defendants-respondents were co-sharers, who had alienated by conditional sale to a stranger a portion of a share which they had acquired by enforcing their own pre-emptive rights as co-sharers against one Ishri Singh, another co-sharer. They clearly offended against the wajib-ul-arz none the less, because the property which they alienated to a stranger had come into their bands by pre-emption from a stranger to whom another co-sharer had alienated it. I do not consider that case as being of any authority in the present appeal. The case of Lachman Singh v. Ghasi I.L.R. 15 All. 137, cited for the appellant, does no more than lay down that mortgagees in possession liable to pay Government revenue may be sued by the lambardar under the Bent Act. The case of Ganga Prasad v Ckunni Lal I.L.R. 18 All. 113, is not at all in point.
6. On the other hand in Khair-un-nissa Bibi v. Amin Bibi, Weekly Notes 1887, p. 93, it was held that a Muhammadan widow in possession, under an' order of Court, of a share in the village in lieu of dower was not a co-sharer within the meaning of the Wajib-ul-arz, and was not competent to maintain a suit for preemption as a co-sharer. The Court in deciding that case remarked that such a person 'cannot be in a better position than that of a mortgagee in possession,' meaning of course that a mortgagee in possession was not a. co-sharer. The last case to which I would refer is that of Ali Ahmad v. Rahmat-ul-lah I.L.R. 14 All. 195, in which the Court, after deciding that a certain document was a mortgage by conditional sale, the term of which had not expired, went on to remark that the 'plaintiff (the conditional vendor) had not by reason of the mortgage ceased to be a shareholder in the village, and that he was not by reason of his having mortgaged his share in the village disentitled to maintain this suit for preemption.' The above two cases show that a mortgagee in possession is not a co-sharer, and that a co-sharer who has mortgaged his interest, even by conditional sale, still remains a co-sharer and continues to enjoy the privileges of that status, and amongst others the right of pre-emption. In the rule laid down in those cases I fully concur.
7. Turning now to the present case I hold that the original mortgagors, Asa and Gopal, did not, by reason of the mortgage they executed in favour of Musammat Laria, lose the status of co-sharers in respect of the mortgaged property, and that neither Musammat Laria nor her assignee (or sub-mortgagee) Baldeo became a co-sharer by virtue of their respective mortgages. When therefore Baldeo assigned or sub-mortgaged to Bansi, that which he transferred was not a co-sharer's interest, but an assignment of a mortgage of (or a sub-mortgage of) an interest executed by a stranger and not by a co-sharer. To such an alienation the terms of the wajib-ul-arz do not, in my opinion, apply. I would therefore affirm the decree of the lower Court and would dismiss this appeal with costs.
8. I agree with my brother Burkitt, and have nothing further to add to what he has said. I would affirm the decree of the lower Court and dismiss this appeal with costs.
9. I concur.
10. This appeal is dismissed with costs.