1. This is a defendants' appeal against the decision of a learned Single Judge of this Court. The appeal arises out of a suit under Section 227, Agra Tenancy Act of 1926. The plaintiff's claim is in respect of his share of profits for the years 1337 to 1339 Fasli. The sum claimed is Rs. 570. The suit was contested by two defendants namely the present appellants who filed a joint written statement. It was denied in the written statement that they had made any collections of rents from tenants for the years in question and it was averred that the plaintiff himself had realized his share of rents from the tenants. The main question for consideration in this appeal is as to the extent of the liability of Man Singh who made certain collections during the years in question. It was contended for Man Singh that he was entitled to deduct from the collections which he had made his total share of the profits in the whole jamabandi. On the other hand it was maintained for the plaintiff that Man Singh was only entitled to deduct a proportionate amount from his collections corresponding to his share in the rent due by each tenant. The question which is one of law was considered in Kanhaiya Lal v. R.H. Skinner : AIR1932All98 . In that case Pullan and Mukerji, JJ. held that a collecting cosharer was entitled to deduct the full amount of the rent due to him from his collections and not merely a proportionate share corresponding to his share in the khewat. This view was based upon the principle that a collecting cosharer does not act as the agent of the other cosharers. Niamatullah J. held on the other hand that a collecting cosharer was only entitled to deduct from his realizations a proportionate share corresponding to his share in the khewat. Under Section 227, Agra Tenancy Act:
A cosharer may sue another cosharer for a settlement of accounts and for his share of the profits of a mahal or any part thereof.
2. The right conferred by this Section is not affected by the fact that the cosharer who has collected has not acted as the agent of the cosharer who is seeking to recover his share of the profits. The cosharer who has collected is liable to account and the question is, what is the extent of his liability? The extent of his liability is not dependent upon whether he acted in his individual capacity or as agent in making collections. In our judgment the collecting cosharer is entitled to retain out of what he has collected from a tenant only a share proportionate to his share in the kewat; to hold otherwise would be to permit a practice which would in most cases result in chaos and confusion. As Niamafcullah, J. has observed in his judgment in Kanhaiya Lal v. R.H. Skinner : AIR1932All98 :
To hold otherwise would be to open a door for endless scramble. An influential and resourceful cosharer may, in disregard of the power of the lambardar, steal a march over him and other co-sharers by collecting from the best tenants to the extent of his share of the gross rental and leaving Irrecoverable rents for the rest. This state of things, if permitted by law, would be intolerable and will lead to gross abuse in certain cases.
3. We find ourselves in agreement with Niamatullah J. in his exposition of the law in the case above referred to and we hold that a collecting cosharer is not entitled to deduct his entire share in the whole jamabandi from collections which he has made from some of the tenants in the khewat. He is only entitled to appropriate from his realizations an amount proportionate to his share in the khewat. On this point therefore we uphold the decision of the learned Single Judge. There is a further point in issue. It was contended by the defendants that the collections which were made were made by Man Singh on behalf of himself and by him ion behalf of Darya Singh, a minor. It was claimed that Darya Singh's share was collected by Man Singh as his guardian. As the learned Single Judge has remarked in the course of his order:
The question whether Man Singh was entitled to deduct from the collections made by him only the amount payable to him by the tenants on account of his share of the rent or also on account of the share of Darya Singh does not appear to have been debated or discussed in the trial Court.... If it be a fact that in the year 1337 Fasli Man Singh was the guardian of Darya Singh no exception can be taken to the decision of the learned District Judge directing that the collections made by Man Singh be credited both towards the accounts of I Man Singh and Darya Singh. But no finding has been recorded by the learned District Judge on the question whether or not Man Singh was the guardian of Darya Singh in the year 1337 Fasli. This matter will have to be inquired into and decided by the lower Appellate Court.
4. In the result the learned Single Judge remanded the case for the decision of the questions as to whether Man Singh was the guardian of Darya Singh in the years in suit; and further, whether Man Singh made collections in the year in suit only on his own behalf or also on behalf of Darya Singh. In the circumstances we consider this was an appropriate order to pass and we see no reason whatever to interfere with Mi at order. In the result the appeal is dismissed with costs.