Banerji, and Knox, J.
1. I agree with my learned colleagues in holding that the defendant acquired the rights of an ex-proprietary tenant in the land held by him as sir in the villages which have been assigned by partition to the share of the plaintiffs. The parties were co-sharers in a number of villages. By an instrument dated the 20th of May 1891, they partitioned their shares, and some entire villages were allotted to the share of the plaintiffs and other villages to that of the defendant. It was agreed that each should surrender to the other the sir lands held by him in the villages assigned to the share of the other. The plaintiffs performed their part of the agreement, and surrendered to the defendant the sir land held by them in the village Sehri, which has fallen into the defendant's share, but the latter, whilst retaining in his possession the sir lands of the plaintiffs, has refused to deliver up to the plaintiffs the sir lands held by him in the village Barghat, which has been assigned by partition to the share of the plaintiffs. He asserts that he has acquired the rights of an ex-proprietary tenant in respect of those lands and that the agreement to relinquish them is void, as it is forbidden by law. Upon this contention two questions arise:--First, whether the defendant has acquired the rights of an ex-proprietary tenant in regard to his sir land, and, secondly, whether, if he has acquired such rights, the agreement made by him to surrender them is legally enforceable.
2. In my opinion both these questions must be decided in favour of the defendant. Under the partition of the 20th of May 1891, the share which the defendant had in the mahal in which be held sir lands, has been assigned to the plaintiffs, and he has obtained in exchange for that share villages in other mahals. He has therefore 'lost or parted with his proprietary rights' in the mahal in which he held the sir lands. By Section 7 of Act No. XII of 1881, '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 favourable rate of rent, and he shall be called an ex-proprietary tenant. The defendant therefore has under this section acquired the rights of an ex-proprietary tenant in the land held by him as sir in the villages which have under partition passed into the share of the plaintiffs. The language of Section 7 is wide enough to apply to transfers of every description by which a proprietor may lose or part with his proprietary rights, and there is nothing in it to exclude from its operation the case of a partition effected by the co-sharers by mutual agreement. It has been contended that the Legislature never intended Section 7 to apply to an exchange of shares by partition, and reference has been made in support of this contention to the provisions of Section 125 of the North-Western Provinces Land Revenue Act, 1873. The intention of the Legislature must be gathered from the language employed by it, and I find nothing in the provisions of Section 7 to warrant the supposition that it was not intended to apply to a private partition. The words used in that section are only consistent with the policy which dictated it, namely, that no proprietor whose rights as such have passed away from him should be wholly denuded of everything he had in the mahal in which he held those rights, and that he should be secured in the occupation of the sir lands held by him in that mahal. That policy in my opinion applies as much to the transfer of proprietary rights under a private partition as to any other description of transfer of such rights, and therefore there is no reason in my judgment for holding that the Legislature did not intend the provisions of Section 7 to be applicable to private partitions. Section 125 of Act No. XIX of 1873, it is true, provides in its second paragraph that if under the partition of a mahal the sir land of one co-sharer be assigned to another co-sharer, the former will have the rights of an occupancy tenant in respect of such land if he continue to cultivate it. There cannot be any doubt, that under the North-Western Provinces Bent Act the rights of a mere occupancy tenant are different in their incidents from those of an ex-proprietary tenant, and it seems that the Legislature in that Act regarded an ex-proprietary tenancy as of a higher ntatus than the tenancy of a mere occupancy tenant. I am therefore unable to agree with the learned Judges who held in Ram Prasad v. Dina Kuar I.L.R. 4 All. 515, that a co-sharer whose share has been assigned to another co-sharer acquires under Section 125 the rights of an ex-proprietary tenant in respect of his sir lands. Section 125 is, in my judgment, an exception to the general rule laid down in Section 7 of the North-Western Provinces Rent Act, 1881. That section has taken the place of a similar section in Act No. XVIII of 1873, which was passed on the same day as Act No. XIX of 1873. Reading the two Acts together, and having regard to the fact that both of them were under the consideration of the Legislature at one and the same time, it seems to me that the intention of the Legislature was to enact a general rule in Section 7 of Act No. XVIII of 1873 and provide an exception to that rule in Act No. XIX of 1873 in the case to which Section 125 of that Act applies. What the policy of the Legislature may have been in conferring on an ex-proprietor in respect of his sir land the rights oi a mere occupancy tenant in the case of a partition held under Act No. XIX of 1873, and the rights of an ex-proprietary tenant in the case of a private partition by mutual agreement, it is not easy to conceive. But I am unable to hold that the Legislature did not intend Section 7 of Act No. XII of 1881 to include within the scope of its operation a partition effected by the co-sharers by private arrangement. I am therefore of opinion that the defendant acquired the rights of an ex-proprietary tenant in the sir lands held by him in the villages which have been allotted to the plaintiffs' share.
3. By the terms of the deed of partition the defendant agreed to surrender his sir lands to the plaintiffs upon the latter's doing the same in regard to their own sir. The terms are these: 'According to this partition the sir lands and the houses of a party situated in a village shall go to the other party's share along with the village in which they are situated; consequently the party who will get possession of the village shall be considered by reason of its falling to his lot to be the proprietor of the sir lands, and the houses situate in such village. Should any party fail to give up possession of the houses and the sir lands the proprietor of the village shall have the said person's possession removed from the houses and the sir lands.' In pursuance of this agreement the plaintiffs have delivered possession of their sir lands to the defendant, and it is certainly an act of bad faith on the part of the defendant to retain in his own possession the sir lands of the plaintiffs and to refuse to give them in exchange his own sir lands. But what we have to consider is whether the defendant can be compelled in law to surrender his sir. The agreement referred to above is nothing more than an agreement to relinquish the ex-proprietary rights which would accrue under the provisions of Section 7 of Act No. XII of 1881. Such an agreement would, in my opinion, defeat the object of that section, which is to prevent a proprietor from divesting himself by his own improvidence of every interest owned by him in his zamindari, and to afford him some protection against the effect of a complete transfer of his rights therein. No doubt an ex-proprietary tenant, like any other occupancy tenant, is competent to relinquish his ex-proprietary rights after he has acquired them; but an agreement to relinquish in the future the ex-proprietary rights which would be acquired after the transfer of his proprietary rights is virtually an agreement to transfer the ex-proprietary rights. Such an agreement is within the prohibition of Section 9 of Act No. XII of 1881. The agreement in question, therefore, is one forbidden by law, and is also of such a nature that, if permitted, it would defeat the provisions of law. The object of the agreement is consequently unlawful under Section 23 of the Indian Contract Act, and the agreement is void. This case may be distinguished from that of Gaya Singh v. Udit Singh I.L.R. 13 All. 396, as it appears from the judgment of one of the learned Judges that in that case a relinquishment had already taken place, and it was on that ground that it seems the relinquishment was upheld. If, however, it was intended to hold in that case that every agreement to relinquish an ex-proprietary holding in the future is a valid agreement, I must say with due deference that I am unable to agree with that view. Such an agreement, if sustained, would certainly defeat the object of Section 7, and would be resorted to as a device for evading the operation of that section. It has been said that in this case the object of Section 7 would not be defeated, as the defendant was to get, and has already obtained, the sir lands of the plaintiffs. But it must be borne in mind that it is extremely doubtful whether the land which was once the sir of the plaintiffs would be sir land in the hands of the defendant, within the meaning of sir land as defined in Act No. XII of 1881. I am accordingly of opinion that the agreement relied upon by the plaintiffs is void under Section 23 of the Indian Contract Act and cannot be enforced, and on these grounds the claim for possession of the lands which were once the sir of the defendant must fail. I may observe that the plaintiffs have failed to make out any case in respect of their claim for the lands in the village Ahraula which has fallen to the share of the defendant under the partition.
4. As for the claim to which relief (3) of the plaint relates, the appeal must, for the reasons given by my brother Aikman, be sustained.
5. I agree in the decree proposed by my brother Aikman.
6. The plaintiffs were the owners of a one-half share in certain zamindari villages, and the defendant was the owner of the other half share. A deed of partition was executed by the parties and registered, the effect of which was that, instead of their half shares in the zamindari villages, each party should become sole proprietor of certain of the villages and abandon in consideration all right to those allotted to the other. In two villages, one of which was allotted in the deed of partition to the plaintiffs and one to the defendant, there was certain land theretofore held by the parties respectively as sir, with houses thereon. One of the terms of the agreement was that 'the sir lands and the houses of a party situated in a village shall go to the other party's share along with the village in which they are situated; consequently the party who will get possession of the village shall be considered, by reason of its falling to his lot, to be the proprietor of the sir lands and the houses also situate in such village. Should any party fail to give up possession of the houses and the sir lands, the proprietor of the village shall have the said person's possession removed from the houses and the sir lands.' The defendant entered on the possession of the village or villages assigned to him. He also took possession of the sir and house appurtenant thereto and which had been relinquished by the plaintiffs. The plaintiffs took possession of the zamindari property allotted to them, but the defendant refused to give up to them the possession of the sir and house which formed part of such zamindari property, claiming to be entitled to continue in occupation as ex-proprietary tenant. This suit is brought to recover possession of such sir and house in accordance with the terms of the deed of partition, and for certain subsidiary reliefs. The defendant sets up in his defence his right of occupancy as an ex-proprietary tenant, within the meaning of Section 7 of Act No. XII of 1881. That section is couched in the following terms:
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 rent which shall be four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and with similar advantages.
Persons having such rights of occupancy shall be called ex-proprietary tenants and shall have all the rights of occupancy tenants.
7. The section in express terms applies to every person who 'shall lose or part with his proprietary rights.' Indeed I am unable to suggest any form of dispossession, voluntary or involuntary, which those terms are not large enough to cover. It is the contention of the defendant that a contract to abandon his right of occupancy as an ex-proprietary tenant conferred by that section is illegal and unenforceable in law. That he did so promise in the partition agreement seems beyond doubt, and also that such promise made by him formed an integral and inseparable part of the consideration for the reciprocal promises of the plaintiffs. I do not think there is any conflict of opinion as to whether there has been, as a matter of fact, any abandonment or relinquishment by the defendant of his ex-proprietary rights. Indeed the suit is brought upon the basis of a possession admitted and justified by himself. The only question now at issue is whether the provisions of Section 7 and Section 9 of Act No. XII of 1881 are a bar to the maintenance of this suit. If the words of Section 7 are to be taken in their simple and natural meaning, they clearly include, without any distinction whatever, all alienations of whatsoever nature. Upon this construction I fail to see any ground for distinction between alienation by partition and voluntary alienation by sale, or by exchange, or by proceedings in invitum conducted in execution of a decree. The words 'proprietary rights' include the rights of a shareholder as well as those of a single exclusive owner. Nor does it appear to me that the nature of the consideration affects the applicability of the section. The zamindar is equally a person who 'may lose or part with his proprietary rights' in a mabal, whether the consideration for the alienation be money, land in some other mahal or some other person's share in a mahal. The result would be precisely the same in all cases. He would, but for the operation of Section 7, have denuded himself of all interest in the mahal, and, if the land or share parted with or lost was spread over a score of mahals, in each one the right of ex-proprietary tenancy in relation to the sir therein would at once arise. This seems to me to be the plain and obvious construction of plain words, the comprehensiveness and generality of which I cannot doubt were deliberately intended by the Legislature. In my opinion the onus of establishing an unexpressed exception to the wide language of the section lies upon those who contend for such an exception. On behalf of the respondents I understand it to be urged that provisions in relation to partition do not lie within the scope and purview of the Rent Act, and do lie within the scope and purview of the Land Revenue Act, No. XIX of 1873, as amended. The object of the Eent Act is, generally speaking, to define and control the rights and remedies of landlords and tenants arising out of that relation. The creation of a new relation of landlord and tenant arising from expropriation would be apparently as much within the scope of that Act, whether such expropriation arose through voluntary partition, or through sale or execution proceedings. In the same way the Land Revenue Act in its provisions in respect of partition deals with the duties of revenue officers therein engaged in the formation of areas for the collection of revenue and the re-arrangements of such areas consequent upon and rendered necessary by partitions. All the sections on the subject, from Section 108 of Act No. XIX of 1873 up to and exclusive of Section 125, deal with partitions effected by the revenue officers, and appear to me to exclude partitions effected solely by the private consent of the parties. The words of that latter section limit its application to land 'assigned on partition and with the consent of the co-sharer.' The section then dealing with land, the subject both of such assignment and of such consent shall be held by the co-sharer as an occupancy tenant. That is not a general enactment of the status of the cultivating co-sharer on partition, and does not in my opinion apply to any case in which the partition is not effected by the revenue officers. If this interpretation of Section 125 be correct, then I am unaware of any extant provision of law defining the status of a person, who, by private and voluntary partition, has divested himself of his proprietary rights in the sir of which before partition he was a co-sharer, unless it be Section 7 of the North-Western Provinces Rent Act. I hardly think it possible to contend that a co-sharer in effecting a voluntary partition may wholly, unreservedly and absolutely part with his proprietary right, while in the case of partition by authority the law reserves for him an inalienable right of occupancy. That seems to me to involve a much graver anomaly than to suppose that the Legislature intended by Section 125 of the Land Revenue Act to differentiate the status of a co-sharer proceeding in partition by means of the revenue officers from that of an ex-proprietary tenant created by Section 7 of the North-Western Provinces Rent Act. If this section of the Rent Act does not apply to voluntary partitions it would then be possible for two co-sharers to partition the property in such a way that the sir would remain entirely with one co-sharer, while the other would possess a zamindari property which he might himself alienate, or of which he might be deprived in execution of a decree without retaining a single particle of interest in it. To prevent such a consummation was in my judgment the object of the Legislature in calling into existence the ex-proprietary tenant. The opinion which I have formed as to the inclusion in Section 7 of the Rent Act of expropriation by partition is largely based upon the consideration that the joint possession of land by joint families is the normal and characteristic type of proprietary possession among Hindus. The numerical importance of and the extent of property held by that constituent of the population seems to me to exclude the suggestion that the every day method of redistribution by partition should have been entirely outside the purview of the Legislature when it enacted Section 7 of the Rent Act. It seems to me that nothing short of express words, excluding or excepting expropriation by partition from the scope and operation of the section, would justify us in declining to apply it to the present case. I would hold, therefore, that the contract between the parties by which each promised to divest himself of all right of occupancy in the sir is in respect to that promise unenforceable in law. The result is that I would allow the appeal and dismiss the suit of the plaintiff, except as to the sum of Rs. 287-8-0, but without costs. I would give the plaintiffs their costs in proportion to their success in both Courts.
8. There can be no doubt that the wording of Section 7 of the North-Western Provinces Rent Act is sufficiently wide to include the present case. I nevertheless entertained great doubts as to whether the Legislature had in its contemplation the case of a transfer by partition. I have, however (though with no little hesitation), come to the conclusion that my doubts were not well founded, and I concur with the remainder of the Court in holding that the appellant did acquire the status of an ex-proprietary tenant in the sir land formerly his, which is now included in the village wholly transferred under the partition to the respondents. I have come to this conclusion with the greatest reluctance because of the glaringly dishonest manner in which the appellant, acted towards the respondents. I concur in the judgment just delivered by my brothers KNOX and Banerji.
9. The parties to this suit, or their predecessors in title, were joint owners of several villages in the Basti and Gorakhpur districts. On the 20th of May 1891, they entered into an arrangement by which this joint ownership was put an end to, each party taking certain villages in sole proprietorship. It was agreed between them that, if either party had sir land in any village which fell to the lot of the other, the sir land was to be relinquished by the party to whom it had belonged. The plaintiffs owned sir land in a village named Sehri, which village fell to the defendant's lot. The plaintiffs carried out their part of the bargain by surrendering to the defendant possession of this sir land. A village named Barghat, in which the defendant owned sir land, fell to the plaintiff's lot, but the defendant, although, as said above, he had got from the plaintiffs the sir land in the village of Sehri, with singular bad faith refused to carry out his part of the bargain by resigning to the plaintiffs the sir land in Barghat. The plaintiffs accordingly brought this suit to recover possession of this sir land and mesne profits for the time during which possession had been withheld. The lower Court has given the plaintiffs a decree, from which the defendant has appealed. It is contended on behalf of the appellant that the bargain which the plaintiffs seek to enforce is one which the Courts cannot, with reference to the provisions of Section 23 of the Contract Act, give effect to. I have reluctantly come to the conclusion that this contention must be sustained. The defendant was at one time joint owner with the plaintiffs in the village of Barghat. The partition deed shows that the whole of that village was transferred to the plaintiffs; consequently the defendant by that partition lost or parted with the proprietary rights which he formerly had in the village. He therefore, under the provisions of Section 7 of the North-Western Provinces Rent Act, 1881, at once acquired a right of occupancy in the sir lands he held in the village and became an ex-proprietary tenant thereof.
10. It would be absurd to hold that an ex-proprietary tenant cannot, if he chooses, relinquish his tenancy in sir land after he has by virtue of Section 7 acquired a right of occupancy in it. To hold otherwise would be to convert him into a serf attached to the soil, and would moreover be in contravention of Section 31 of the Rent Act, which gives a right of relinquishment to all tenants not holding under a lease. But the question we have to consider is:--Can a Court enforce specific performance of a contract, such as that on which the plaintiff relies, to relinquish a right of occupancy which is created and conferred by Section 7 of the Rent Act? In my opinion this question must be answered in the negative. It is true that a contrary view appears to have been taken in Gaya Singh v. Udit Singh I.L.R. 13 All. 396, and the performance of a similar contract enforced. But, with all respect to the learned Judges who decided that case, I am of opinion that they overlooked the difficulty created by reading Section 23 of the Contract Act in the light of Section 7 and Section 9 of the Rent Act. In the course of the argument in this case, it was contended that Section 7 of the Rent Act was never intended to apply to a case like the present. The defendant's case here undoubtedly falls within the four corners of Section 7. If I could find any clear indication that it was not the intention of the Legislature that Section 7 should apply to a case like the present, I would be only too glad to give effect to the respondent's contention. But I can find none. In supporting this contention much reliance was placed upon Section 125 of the North-Western Provinces Land Revenue Act, 1873, the second paragraph of which provides that where, in carrying out a partition, the sir land of one co-sharer has been included in the mahal assigned to another co-sharer, the former shall be an occupancy tenant of the land. The Legislature recognizes a distinction between an ex-proprietary tenant and occupancy tenant. See Section 10 of the Rent Act. Now if Section 125 of the Revenue Act had provided that the co-sharer whose sir was transferred in effecting a partition was to be an ex-proprietary tenant, there would have been some force in the contention that Section 7 was not intended to cover cases of partition, as, if Section 7 were intended to be of general application, such a provision as that contained in the second paragraph of Section 125 of Act No. XIX of 1873 would have been unnecessary. But there is nothing to show that the second paragraph of Section 125 was not intended to be an exception to the general rule. If it be held, as I think it must be, that the appellant by the arrangement come to on the 20th of May 1891, became an ex-proprietary tenant of his sir land in the village in which, by that arrangement, he parted with his proprietary rights, it would, I hold, entirely defeat the provisions of Section 7 and Section 9 of the Rent Act were a Court to enforce a contract to surrender the occupancy rights so acquired. If such contracts were enforced, the beneficent provisions of Section 7 of the Rent Act would, I fear, be rendered almost entirely nugatory.
11. For the above reasons I am of opinion that that portion of the decree of the lower Court awarding to the plaintiffs possession of the sir land in muuza Barghat and mesne profits thereof should be set aside. The plaintiffs also sued to recover possession of sir land in another village named Ahraula. In their plaint they make out no cause of action as to the sir land of this village. An inspection of the partition proceedings shows that, with the exception of a plot of 144 bighas, the whole of Ahraula was assigned to the defendant. There is nothing to show that the clause in the agreement of the 20bh of May 1891, on which the plaintiffs rely, applies in the case of Ahraula. On this ground alone the claim as regards Ahraula ought to have been dismissed. But if the clause did apply, it was, as in the case of the Barghat sir, a contract which tended to defeat the provisions of Section 7 of the Rent Act, and which cannot therefore be enforced. The above findings dispose of the first five grounds in the memorandum of appeal. The last ground refers to a portion of the plaintiffs' claim in which they sought to recover money they had paid out for the defendant. The defendant put in a counter-claim on account of a bond payable by the plaintiffs which the defendant had discharged. The Court below gave the defendant credit for the amount he had paid to the extent of the principal money secured by the bond and interest for one year, but refused to allow the defendant credit for the amount he had paid as post diem interest, holding that this was not recoverable under the bond. With reference to the terms of the bond and the decision of their Lordships of the Privy Council in the recent case, Mathura Das v. Raja Narindar Bahadur Pal L.R. 23 I.A. 138 : I.L.R. 19 All. 39, post diem interest was due under the bond. The defendant was therefore entitled to credit for the sum he paid on that account. When credit is given him for this, the amount due to the plaintiffs is reduced to Rs. 287-8-0. The result of the above findings is that the plaintiff's suit for possession of the sir land and mes ne profits should be dismissed, and a decree passed for Rs. 287-8 0, instead of Rs. 3,009-8-0, with costs proportionate to their success.
12. I would allow the appeal and vary the decree of the lower Court as set forth above. But, to mark our sense of the bad faith displayed by the defendant, I would not allow him any costs here or in the Court below.
13. The appeal is allowed; the decree of the lower Court is varied, and the plaintiffs' suit dismissed, except as regards the sum of Rs. 287-8-0. The plaintiffs will get costs in this Court and the Court below proportionate to their success. The defendant will pay his own costs throughout.