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Durbijai Singh and anr. Vs. Nawab Zohra Sultan Begam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1937All760
AppellantDurbijai Singh and anr.
RespondentNawab Zohra Sultan Begam
Excerpt:
- - for the reasons given above, i hold that the decrees of the courts below are perfectly correct and dismiss this appeal with costs......conjointly....4. in other words, the general rule laid down by the legislature is that in a joint mahal suits for arrears of rent against a tenant can be filed only by all the co-sharers jointly. but there are important exceptions to this rule and one of those exceptions is laid down by clause (2) of section 266 which runs as follows: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.5. in my judgment the case before me falls within the exception provided for by clause (2) of section 266, agra tenancy act. i have quoted above the observations of this court in an earlier litigation between the parties about the existence of a usage in the mahal.....
Judgment:

Iqbal Ahmad, J.

1. This is a defendant's appeal and arises out of a suit for arrears of rent from Rabi 1338 Fasli to Kharif 1340 Fasli. The suit was resisted by the defendants inter alia on the ground that the plaintiff alone was not entitled to sue and that, in any ease, the plaintiff could not be granted a decree for a sum in excess of her share in the rent of the holding. This contention of the defendants was, in my judgment, rightly overruled by both the Courts below. There is no longer any controversy about the facts and the only question for decision in the appeal is the question of law as to the plaintiff's right to maintain' the suit. The facts are as follows:

Chandan Singh, the father of the defendant-appellants, was the proprietor of a fractional share in the mahal, to which the suit relates, and he held some sir land also. Chandan Singh sold his entire proprietary rights in the mahal along with his sir land to the plaintiff, respondent in the year 1880. On transfer of his proprietary rights, Chandan Singh acquired exproprietary rights in that sir. It was covenanted in the sale deed that a sum of Rs. 80 a year would be paid by Chandan. Singh as the rent of his exproprietary holding and there was further a clear stipulation contained in the deed that the purchaser, viz. the plaintiff-respondent, would be entitled to collect the whole rent of the holding. In pursuance of this covenant in the deed, if not also in conformity with the usage obtaining in the mahal, the plaintiff-respondent has been realizing, from Chandan Singh and his sons the whole-rent of the exproprietary holding from the-date of the sale deed upto the year 1930. Further, on more occasions than one the plaintiff-respondent realized the entire rent of the exproprietary holding by means of suits and in one of the cases for arrears of rent filed by the plaintiff that came in second appeal to this Court, it was observed by this Court that the custom is for the exproprietary tenant to pay the rent to the purchaser who accounts for it to his co-sharers.

2. In short the agreement by the vendor in the sale deed to pay the whole rent of the holding to the purchaser was acted upon for about 50 years. It is also a fact that in the year 1926 by mutual agreement between the parties to the present litigation the annual rental of Rs. 80 was enhanced to Rs. 104 a year.

3. The only point that has been argued in. appeal before me is about the right of the plaintiff to realize the entire rent of the exproprietary holding. The learned Counsel for the appellant has contended that as, apart from the plaintiff-respondent, there are other co-sharers in the mahal in which the exproprietary holding of the defendants is situated, the plaintiff alone was not entitled to maintain the suit and in support of this argument he has placed reliance on Section 266, Agra Tenancy Act (Act 3 of 1926) and on a decision of this Court in Manohar Lal v. Baldeo Singh : AIR1927All505 . It is provided by Section 266, Agra Tenancy Act, that:.where there are two or more co-sharers 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....

4. In other words, the general rule laid down by the Legislature is that in a joint mahal suits for arrears of rent against a tenant can be filed only by all the co-sharers jointly. But there are important exceptions to this rule and one of those exceptions is laid down by Clause (2) of Section 266 which runs as follows:

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.

5. In my judgment the case before me falls within the exception provided for by Clause (2) of Section 266, Agra Tenancy Act. I have quoted above the observations of this Court in an earlier litigation between the parties about the existence of a usage in the mahal by virtue of which the exproprietary tenants in the mahal paid the rent of their exproprietary holdings to the purchaser alone and not to all the oo-sharers. Further, I have also referred to the covenant contained in the sale deed of 1880 which entitled the plaintiff-respondent to realize the whole of the rent of the exproprietary holding from the vendor. The plaintiff, respondent was therefore entitled both by virtue of a local usage and by the special contract contained in the sale deed of 1880 to realize the entire rent from the defendants.

6. But it is argued on behalf of the appellants that even in accordance with the provisions of Section 266(2), the plaintiff was entitled to a decree only for her 'share of the rent' of the exproprietary holding and that a decree for the whole of the rent of that holding could in no case be passed in the plaintiff's favour. I am unable to agree with this contention. It is no doubt settled law that an exproprietary tenant in a joint mahal becomes the tenant not only of the purchaser of his share but of the entire co-parcenary body. But, as has been found in this case by the Courts below, according to the usage obtaining in the mahal, the exproprietary tenants in the mahal pay the entire rent of their holdings to the purchasers of their respective shares. The plaintiff in this case was therefore entitled to realize the whole of the rent from the defendants.

7. The matter may be put in another way. Even if the case before me is not covered by Section 266(2), Tenancy Act, Clause (1) of that section has also no application to the case as that clause is applicable only to cases where 'there are two or more co-sharers in any right, title or interest'. In the present case, having regard to the local usage referred to above, no other co-sharer in the mahal has any 'right, title or interest' in the rent payable on account of the exproprietary holding of the defendants. The plaintiff alone was therefore entitled to file the suit. The view that I take is in consonance with an unreported decision of this Court in Sagna v. Ganga Sahai Second Appeal No. 307 of 1934, and a decision of the Board of Revenue in Narain Singh v. Balwant Singh (1934) 18 R.D. 132.

8. The decision in Manohar Lal v. Baldeo Singh : AIR1927All505 relied upon on behalf of the appellants is, in my judgment, distinguishable. In that case the plaintiff was only one of seven co-sharers and there was a dispute going on between the co-sharers with regard to the right to collect rent, which dispute was the subject of some civil litigation. The defendant in that suit had paid the rent of the holding to one of seven co-sharers and then another co-sharer brought the suit for arrears of rent. In the case before me, as already observed, the whole of the rent of the exproprietary holding of the defendants was payable to the plaintiff alone and no other co-sharer in the mahal was entitled to realize the same. For the reasons given above, I hold that the decrees of the Courts below are perfectly correct and dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.


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