1. This is a second appeal by two defendants Gajraj Singh and Mt. Radha Kuar against concurring decrees in favour of the plaintiff of the two Courts below, The suit was brought in the Court of an Assistant Collector by one Kallu who was the owner of one biswa share in a certain patti. Three biswas share was owned by the appellants and Mt. Ram Devi, respondent 3. One biswa share was owned by Mt. Jwala Devi, respondent 2, who was lambardar. The plaintiff sued under Section 227, Tenancy Act of 1926. Issue 2 was:
Whether any of the defendants had made collections beyond his legitimate share, and if so, to what extent?
2. The patwari made a statement of accounts and in accordance with that statement the Court held that certain sums were due from the appellants to the plaintiff. It was not contended that the lambardar was entitled to collect the rent, nor was it contended that there was any legal usage or special contract by which a cosharer was entitled to receive separately his share of the rent payable by a tenant. The appellants appealed to the Court below and no such point was raised by them in appeal. The lower Appellate Court held that each cosharer is entitled to collect only his own share of the rent of a tenant and not the entire rent payable by a tenant. The ground taken in second appeal to this Court is that the Court below is in error in this matter and that the appellants were entitled to collect the whole rent from any tenants from whom they could collect up to the amount to which they were entitled as a share of the profits of the patti. Learned counsel referred to Section 266, Tenancy Act. That Section provides:
(1) Except as otherwise provided in Section 265, where there are two or more cosharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of them all.
(2) Nothing in Sub-section (1) shall affect any local usage or special contract by which a cosharer in an undivided property is entitled to receive separately his share of the rent payable by a tenant.
(3) When one of two or more cosharers is not entitled to sue alone, and the remaining cosharers refuse to join as plaintiffs in a suit for money recoverable by them jointly, such cosharer may sue separately for his share, joining the remaining cosharers as defendants.
3. As there is no local usage or special contract the case would not come under Sub-section (2) but the case would come under Sub-section (3), if a suit for arrears of rent was brought by the appellants against any particular tenant. This sub-section shows that the appellants in such a case could only sue separately for their share and would have to join the remaining cosharers as defendants. Had there been a custom coming under Sub-section (2), it would not have been necessary for them to join the remaining cosharers as defendants but otherwise the matter would have been the same. It is only in case there had been an assignment of certain tenants to the appellants that they could have collected the rent from those tenants in full. As the appellants were not entitled to sue for arrears of rent from any tenant to an extent of more than their own share, that is three-fifths of rent, we are of opinion that they were only legally entitled to collect that amount from any tenant. Therefore, their collection of the full rent from any tenant was in excess of their legal rights and the plaintiff is entitled to make a claim against appellants for such excess collection from each and every tenant from whom the appellants have collected in full or for more than their share. This view of the law has been taken in a recent ruling, Man Singh v. Baijnath Sahai : AIR1939All694 , a ruling by a Bench of this Court. Learned counsel referred to Kanhaiya Lal v. R.H. Skinner : AIR1932All98 . But that was an entirely different case where the lambardar alone could make collections and a cosharer had made collections without any legal right. For these reasons we dismiss this second appeal with costs.