1. These are two appeals by the plaintiff and one appeal by-certain defendants against an order in first appeal by the learned District Judge of Allahabad in a suit for profits by the plaintiff. There were originally two suits, one in regard to Mahal Bhagwant Singh and one in regard to Mahal Sheozor Singh. The plaintiff is a cosharer in these mahals and he is not in possession of any area of sir and khudkasht and he has not been receiving any rents or profits for the years in suit. In Mahal Bhagwant Singh there are 45 defendants and it is found that these defendants are in possession of different areas of sir and khudkasht some of which they cultivate and some of which they sublet to subtenants. There is also in this mahal about 10 bighas of land which is let to non-occupancy tenants. The Court of first instance decreed the suit of the plaintiff granting him a decree in Mahal Bhagwant Singh for Rs. 572-13-8 as his share of profits assigning different amounts as due from different defendants according as the Court of first instance hold in the statements A and B that different defendants had cultivated more than their share. In Mahal Sheozor Singh a sum of Rs. 248-0-6 was awarded to the plaintiff on similar grounds in statement Exs. C and D. The lower appellate Court set forth certain principles one of which was that where fields were separately sold or mortgaged these specific plots should not be taken into account in these suits for profits. Accordingly, as a result of this principle, the lower appellate Court reduced the area of land which yielded profits of Mahal Bhagwant Singh to 91 bighas instead of 138 bighas and it found that nothing was due to the plaintiff in that mahal.
2. The result of this finding is that the plaintiff, although he is a cosharer in Mahal Bhagwant Singh and has not received any profit for the years in suit is held to be due no profits for those years. This is a very extraordinary result and gives rise to the presumption that there was something wrong in the theory of the lower appellate Court. Now the plaint set forth that of the 45 defendants, defendants 1 to 28 were cosharer and defendants 29 to 45 were possessory mortgagees of part of the mahal. We do not find anything on the record to indicate that defendants 29 to 45, are not mortgagees of shares, but even if some of them were mortgagees of specific plots, we do not think that on this account they should be exempted from a decree for share of profits. In our view, when a cosharer makes a usufructuary mortgage of part of his share or of specific plots of which he is in exclusive possession, a Court in a suit for profits should regard the cosharer and his mortgagee as a single unit. If that cosharer and his mortgagee together are in receipt of a greater share of profits than they are entitled to, then a decree should be passed against them in favour of a plaintiff who is in receipt of less profit than he is entitled to by his share. The adjustment between the cosharer and his mortgagee of the liability which they jointly incurred to such a plaintiff is a matter for the cosharer and his mortgagee to settle between themselves. What the Court has to look to is whether the cosharer plus the mortgagees are in possession of a greater area of sir and khudkasht than they are entitled to, that is, whether they are receiving more profits than they are entitled to, taking the annual net income [of their area into account.
3. The question of the sale of a specific plot by a cosharer is in our opinion similar. If a cosharer chooses to sell a specific plot, then that plot must still be considered as part of his share for the purpose of a suit for profits. Otherwise it would be possible for cosharers to sell specific plots and with a result that a cosharer not in possession of specific plots would be altogether deprived of any benefit from his share in the mahal. These are the general principles which we consider should govern a suit where such questions arise. But from the evidence on the record we are not at all satisfied that even assuming the principles adopted by the lower Court to be correct the result followed which is found in the judgment of the lower appellate Court. We consider that proper tabular statements should be prepared showing exactly how each cosharer plus his mortgagee is in possession of an excess share of profits. We have considered only the case of mahal Bhagwant Singh, but the case of mahal Sheozor Singh is similar.
4. Accordingly we remand this case to the lower appellate Court for disposal in view of the law which we have laid down. Costs here and hitherto will abide the result,
5. In Appeal No. 343 of 1928 the questions raised in the memorandum of appeal are questions of fact and we do not pass any orders in regard to them. But as we are remanding this case for disposal again by the lower appellate Court it will be open to learned Counsel for the defendants to take those points before the lower appellate Court, The order as to costs is similar.