1. The appellants, who were defendants in the Court of First Instance, held a ten-biswas share in the zamindari of the village Gumanpur; They sold four biswas out of the said 10 biswas to the plaintiffs on the 22nd September 1893. By that sale-deed the defendants purported to convey to the plaintiffs not only a 4-biswas share of the zamindari, but also 58 bighas 13 biswas of sir land. This quantity of sir land is a portion of 226 bighas 14 biswas of sir land appertaining to the whole village, and is slightly in excess of what would be the sir of the defendants proportionately to the 4-biswas share sold by them. The sale-deed provided that the purchasers should be put into actual possession of the sir land, and the vendors should relinquish such exproprietary rights as they might acquire therein. It was also stated in the sale-deed that out of Rs. 4,000, the amount of consideration for the sale, Rs. 1,500 should be deemed to be the consideration for the transfer of the sir land and the agreement to relinquish exproprietary rights. The sale-deed further provided that in the event of the vendors failing to deliver possession of the sir land to the purchasers, or of their not relinquishing their exproprietary rights, the vendees would be entitled to a refund of the aforesaid sum of Rs. 1,500. Possession not having been delivered over the sir land, the present suit was brought for recovery of possession, and, in the alternative, for a refund of Rs. 1,500 with interest. The Court of First Instance made a decree in favour of the plaintiffs for the refund of the amount stated above. That decision has. been affirmed by the Lower Appellate Court. The defendants have preferred this appeal on the ground that the agreement upon which the plaintiffs have based their claim is contrary to law and is therefore void. It was held in Bhikham Singh v. Har Prasad (1895) I.L.R. 19 All. 35, that if a zamindar sells his zamindari rights and includes in the sale the right to cultivatory possession of the sir land and agrees to relinquish his exproprietary rights in respect of the sir land, the vendee, in the event of such possession not being delivered or exproprietary rights not being relinquished, is not entitled to claim a refund of the sale price or any portion thereof. To this view I still adhere. The only other question which has to be considered in this case, therefore, is whether, by selling a part of their proprietary rights in the village in question, the defendants could acquire exproprietary rights in respect of their sir land under Section 7 of Act No. XII of 1881. The decision of that question depends upon the construction to be placed on the provisions of Section 7. Does that section contemplate that exproprietary rights would accrue in favour of a person losing or parting with his proprietary rights only when he loses or parts with all his proprietary rights or that he would acquire such rights even when he parts with or loses a portion of his proprietary rights? This question was answered by a Division Bench of this Court in the case of Bhawani Prasad v. Ghulam Muhammad (1896) I.L.R. 18 All. 121. In that case it was held that in order that the provisions of Section 7 may come into operation, it is not necessary that the zamindar should lose or part with his proprietary rights in respect of the whole of his interest in the mahal. With that decision I am fully in accord. The language of Section 7 is no doubt not so clear as it should have been; but having regard to the policy of that section any construction other than that placed on it in the ruling referred to above would evidently defeat the object of the section and enable a proprietor to divest himself of his sir lands by excluding from sale an infinitesimal portion of his proprietary rights. The reasons for holding that the section does not contemplate the transfer or loss of all proprietary rights are fully stated in that judgment, and I have nothing to add to those reasons. There is, it is true, a ruling of the Board of Revenue, reported in the Selected Decisions of the Board of Revenue for 1888-1891, at page 8, in which a contrary view was held, but I am unable to follow the conclusions arrived at in that ruling. According to well-known rules of construction it is our duty to place on the section such a construction as would effectuate the intention of the Legislature, provided that the language of the seotion can admit of the construction. I hold that the language of Section 7 is sufficiently wide to justify us in construing it in the manner in which it was construed in Bhawani Prasad v. Ghulam Muhammad (1895) I.L.R. 18 All. 121. If the words 'proprietary rights' in Section 7 may, as I hold they do, include a part of the proprietary rights, the subsequent words 'land held by him as sir' can be equally held to include a proportionate part of the sir land. In this view as the agreement upon which the plaintiffs have based their claim would have the effect of defeating the law as I understand it, it is a void agreement and cannot be given effect to. The plaintiffs' suit should therefore have been dismissed. I would allow the appeal, set aside the decrees of the Courts below and dismiss the suit; but having regard to the conduct of the defendants and to the fact that the plea which has been taken in this Court was never raised in the Court below, I would make no order as to the costs of the litigation.
2. I follow my learned brother, but with extreme hesitation. If the question was res integra and if the precedent, Bhawani Prasad v. Ghulam Muhammad (1895) I.L.R. 18 All. 121, did not stand as a reported decision of this Court, I should have been very much inclined to hold otherwise. The interpretation now placed seems to me to put such a strain upon the words of the section as they stand that I doubt whether they can bear it. We have had abundant evidence that the language of this particular Act is in many cases, to say the least of it, very inartistic, and it may be that the interpretation which we now put is one within the spirit and policy aimed at by the Legislature when they enacted this section.
3. The decision of this appeal turns upon the construction of the opening words of Section 7 of Act No. XII of 1881. These words are as follows:--'Every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting' at a rate of rent such as is specified in the section. The Board of Bevenue for these provinces held that the right thus created did not arise until the person claiming it lost or parted with the whole of his proprietary rights in the mahal. In the case of Bhawani Prasad v. Ghulam Muhammad (1895) I.L.R. 18 All, 121, a Division Bench of this Court pointed out that if this was the meaning to be attributed to the words of the section, the object of the Legislature would be easily defeated. This is undoubtedly true. I think it is possible to construe the words 'his proprietary rights' as meaning the whole or part of his proprietary rights; but there remains the passage in the section 'shall have a right of occupancy in the land held hy him as sir in such mahal at the date of such loss or parting.' The learned Judges who decided the case just referred to do not consider what meaning would have to be put on those words if an exproprietary right arises when a zamindar parts with a portion only of his proprietary rights. I scarcely think that the learned Judges would have held that if a zamindar parted with a mere portion of his proprietary rights he would thereby at once become an exproprietary tenant of the whole of the sir land which he had held in the mahal, and yet that is the apparent meaning of the words used by the Legislature. To carry out the view of the Division Bench to its logical conclusion, we should have to read the section as if it ran 'shall have a right of occupancy in such portion of the land held by him as sir in such mahal as is proportionate to the proprietary interests he has lost or parted with.' This seems to me to trench dangerously on legislation. But in view of the consideration that the construction put upon the section by the Board of Revenue would result--to use the words of the learned Judges who decided the case of Bhawani Prasad v. Ghulam Muhammad (1895) I.L.R. 18 All. 121,--in opening a door through which it would be possible for evasions of the law to become general in these provinces, I do not wish to depart from the principle stare decisis, and I concur in the order proposed.
4. The order of the Court is that the appeal is allowed, the judgment and decree of the Lower Appellate Court are set aside, and the suit of the plaintiffs is dismissed, but without costs.