Piggott and Walsh, JJ.
1. This is a second appeal by some of the defendants out of a very large number against whom a decree, purporting to be one to enforce a malikana charge or allowance, payable by the defendants generally as co-sharers in a certain mahal in the village of Dundheri Khawajgipur, has been passed by both the courts below. The established facts are that in the year 1838, the former proprietors of this village, who were Rajputs by caste, refused to accept the settlement of the village offered to them under the orders of Government; they were therefore excluded from settlement and a settlement was offered to the cultivators of the village generally, whose successors in interest are the defendants in this suit. At the same time Government, proceeding on the principle now recognized by Sections 74 of the United Provinces Land Revenue Act (Local Act No. III of 1901), prescribed a malikana charge of 12 1/2 per cent. on the land revenue as payable by the new proprietary body to the old proprietors who had been excluded from settlement,
2. There were new settlements of the village in the year 1867 and in the year 1890. At each of these settlements the right of certain persons, the descendants of the original proprietors prior to the year 1838, to receive a malikana allowance at 12 1/2 per cent. on the land revenue was recognized in the wajib-ul-arz. It is also proved that, as part of the record of proprietary rights in the village prepared at each of these settlements, a khewat malikana has been drawn up in which the names of the persons entitled to a share in the malikana and the sum payable to each of them or to each group as therein specified, are duly recorded. It is not contested that, according to this khewat malikana, the plaintiff Ghansham Singh is entitled to receive an allowance as stated by him in the plaint and we have not been asked to re-consider the claim in the plaint to the effect that arrears of this charge for a period of 11 years prior to the institution of the suit would amount to Rs. 462-5-6. The courts below have allowed simple interest at 12 per cent. per annum on the amount falling due each year and have thereby raised the total claim to Rs. 778-5-3. The decree passed by the court of first instance and affirmed on appeal is a simple money decree for this amount, with future interest, against the whole body of defendants jointly. The appeal before us is by some of the defendants only. It will obviously be necessary for us to re-consider the entire case on the appeal of these defendants and the amended decree which we propose to pass will affect equally those defendants who have not appealed along with the appellants before us. A number of pleas have been taken in the memorandum of appeal raising points which have been dealt with more or less explicitly in the courts below, but there has been no express plea against the order of the courts below allowing interest. For reasons which we hope to make sufficiently apparent, we have allowed this point to be argued, although it was not taken in the memorandum of appeal. The omission, therefore, of the appellants to enter a formal plea in this Court on this point will only affect our order as to the costs of the appeal.
3. The first point taken by the appellants would seem to be most capable of accurate statement in the form of an alternative. It is contended that the malikana allowance granted in the year 1888 should be regarded as merely a grant for the period of the settlement then current; along with this it is contended that the evidence on the record as to what was done at the settlements of 1867 and of 1890, does not amount to evidence of a renewal of the malikana for the period of the said settlements. As a sort of alternative to the above it is pleaded that, if the grant made is the year 1838 was a grant in perpetuity, then the rights of the grantees had become extinguished long before the institution of this suit by operation of the Statute of limitation. The contention on this point is based on the fact that in the Indian Limitation Act of 1859 there was no provision analogous to that introduced into subsequent Statutes of limitation, from the year 1871 onwards, which is now to be found in the explanation appended to Article 132 of the first schedule of Act No. IX of 1908. Prior to the passing of the Limitation Act of 1871. a claim to a malikana such as that set up in the present suit was treated as a claim to immovable property, and it was held that in the event of such claim not being enforced within a period of 12 years the right became entirely barred. The courts below have is substance disposed of these alternative pleas together, upon a view which they have taken of the effect of proceedings at the settlements of 1867 and of 1890. One of the contentions before us has been that it does not really matter what was done at those settlements, because in any case the Settlement Officer had no right to fix a malikana allowance in favour of persons not entitled to receive the same. Reference is made to the provisions of Section 74 of the present Laud Revenue Act, and it is pointed out that the right to receive an annual allowance in the form of a percentage on the revenue assessed is only conferred upon a proprietor who is excluded from the settlement at which the allowance is fixed under the provisions of the section. As a matter of fact the question of the position of an excluded proprietor who has once received a malikana allowance under the provisions of this section, or under any analogous provisions of law previously in force, with regard to subsequent settlements is not deal with directly, either by Section 74, or by any other section of the Land Revenue Act. What the Settlement Officer has to do at the beginning of each new settlement is to ascertain the existing proprietary rights in land: if he finds that there is in existence a right to receive a malikana charge, and is of opinion that it has not come to an end with the conclusion of the settlement at the commencement of which it was fixed, he is obviously under an obligation to recognize that right in the papers drawn up by him for the purposes of the new settlement and to take into consideration the existence of the said right in framing his assessment proposals for the mahal concerned. The question really raised by the argument before us is not so much one of law as of the sufficiency of the evidence on this record and the inferences fairly to be drawn from such documents as the wajib-ul-arz and the khewat malikana which have been put in evidence for the settlements of 1867 and 1890. It is not denied that, if at either of these settlements Government fixed a certain revenue demand on this mahal and offered to settle it with the proprietary body, subject to the payment of that demand plus a malikana charge of 12 1/2 per cent in favour of the 'descendants of the proprietors who had been excluded in the year 1838, it was within the competence of the Local Government to do this. If, furthermore, the proprietary body accepted the settlements of 1867 and 1890, on the understanding that they became liable from the date of each of the aforesaid settlements to pay a certain sum annually to Government, plus 12 1/2 per cent. on the same to other persons, then the proprietors represented by the defendants in the present suit are and remain subject to that liability. What has really been argued before us is that the papers on this record do not warrant an inference to the effect stated above. The argument is an ingenious one, but does not appear to be of real force. The terms of the wajib-ul-arz, when considered in connection with the khewat malikana prepared at each of the settlements, do seem to bear out the conclusion of fact above stated. It has to be remembered, moreover, that we are dealing with this matter now in second appeal, and that the decision of the courts below does very distinctly proceed upon the basis that the evidence on the record proves that at each of the settlements of 1867 and of 1890, the proprietary body which accepted each of those settlements accepted it subject to the condition that they would also be liable to pay the malikana charge in question, For the purposes of this appeal, therefore, it is quite sufficient for us to say that there is on the record documentary evidence sufficient to entitle the courts below to arrive at the above conclusion. In any view of the case the courts below are right in the decision they have come to, which is to the effect that the right to receive this charge is an existing right, that it was in existence when the Indian Limitation Act of 1871 came into force and has been in existence ever since under the limitation law as amended in subsequent Statutes.
4. The next question raised, and one of greater difficulty, is whether the plaintiff is entitled to claim this charge or allowance for a period of 11 years antecedent to the date of the institution of the suit, or is limited to a claim for a personal decree against the defendants for a period of three years only. Under the explanation to Article 132 of the first schedule of the Indian Limitation Act already referred to, a claim to a malikana allowance must be deemed, for the purposes of limitation, to be a claim for money charged upon immovable property within the meaning of the said article. This principle has been affirmed in more than one decision of this Court, the case most nearly in point being that of Shida Ali v. Phullo (1913) I.L.R., 35 All., 185. No doubt this principle is subject to the proviso that the plaintiff coming into court to claim such malikana allowance must claim it as a charge upon the immovable property concerned. This principle clearly follows from the decision of their Lordships of the Privy Council with regard to mortgage suits in the reported case of Ram Din v. Kalka Prasad (1884) I.L.R., 7 All, 502. The present case is complicated by two circumstances.: one is that the plaint as originally drafted was against the lambardars of the village only and claimed nothing more than a simple money decree. The plaint was afterwards amended under the orders of the court, with a view to impleading as defendants the entire body of co-sharers in the mahal in suit and to claiming a charge on the property in question and relief by way of an order for sale of the same. On the other hand, the court of first instance, although in the operative portion of its judgment it has written that the suit 'is decreed with costs' and by this presumably means that the claim preferred in the plaint as amended under the orders of the court is decreed, has nevertheless passed what is on the face of it a simple money decree against all the defendants, which does not contain any direction for the sale of the property subject to the charge. Arguments before us have been directed, firstly, to the insufficiency of the amendments made under the orders of the court to change the essential nature of the plaint as originally drafted, and, secondly, to the effect on the parties of the fact that both of them have acquiesced in a simple money decree. The plaintiff has never up to this point objected to the fact that the decree as passed by the court of first instance, and affirmed in first appeal, does not give him relief by way of an order for sale, and on the other hand, the defendants have appealed against the decree as a whole, but had no particular reason for taking the point that the decree as passed was inconsistent with the operative portion of the judgment. In this connection our attention has been drawn to the fact that in the case of Shida Ali v. Phullo (1913) I.L.R., 35 All, 185, already referred to a Bench of this Court had also to deal with a simple money decree in a suit to enforce a malikana charge, in which relief had been asked for by way of an order for sale. The fact seems to be that in that case no one thought it worth while to ask the Court to alter the form of the decree and the learned Judges simply confined themselves to the question of limitation. We think that, as the case has now been argued out before us, and in view of the application orally made to us on behalf of the plaintiff-respondent, to the effect that the decree of the court of first instance should in any event be brought into conformity with the operative portion of the judgment, it is not merely open to us, but is incumbent upon us, to deal with the entire matter and to pass whatever decree in the case we think the court of first instance ought to have passed We consider, however, that in taking this view we are making a certain concession to the respondent and that, as we have done this, it is not fairly open to the respondent to object to our allowing the appellants to argue the point as to interest which was not expressly taken in this memorandum of appeal. We are very definitely of opinion that there is no reason, either in law or in equity, for allowing the plaintiff interest upon this claim. The reasoning of the court below on this point, which was taken into consideration in the judgment, is only applicable to those cases in which liability to pay interest is one of the express stipulations of a contract between the parties. The liability of the defendants to pay this malikana, allowance was one which accrued due every year, and there seems no reason whatever why the plaintiff should be allowed to keep his claim in abeyance for a period of 11 or 12 years and then expect to be paid interest at a substantial rate on all the arrears, There is one other point which we ought not to pass over 'without notice, It has been contended on behalf of the appellants that, if this Court is prepare to treat the plaintiff's claim as one for the enforcement of a charge, which it certainly was after the plaint had been amended, the question ought further to be considered whether the plaintiff alone is entitled to sue, without any of the other persons entitled to the enjoyment of the malikana, allowance appearing on the record either as plaintiffs or defendants. We think that under the khewat malikana, drawn up at the last settlement the right to receive this allowance was split up, and that the plaintiff alone is entitled to maintain this suit for the share recorded as due to him in that document. To hold otherwise would mean that the proprietors liable to pay this charge might evade their liability, owing to the difficulty of its enforcement if it were hold that the only possible suit for that purpose would be one jointly brought by all the proprietors specified in the khewat malikana.
5. There is one more point, which is one of detail only, but which must not be altogether passed over. Appellants Nos. 5 to 8, namely, Chettan Das, Bhikhu Mal, Jagdish Saran and Bisheshar Dayal, pleaded that they were not co-sharers in the mahal in suit; that their rights in this village were limited to the actual possession of certain grove-lands not assessed to revenue, and that they were consequently not liable to contribute anything towards the malikana allowance charged on the revenue. On this state of pleadings we think it was for the plaintiff to prove, as against these defendants, that they were subject to the liability claimed, and that he has not done so. The suit against them ought to be altogether dismissed.
6. The result is that we set aside the decree of the lower appellate court and alter the decree of the court of first instance as follows:The suit is dismissed altogether as against the defendants Chettan Das, Bhikhu Mal, Jagdish Saran and Bisheshar Dayal, sons of Sagun Chand. The sum decreed is reduced from Rs. 778-5-3 to Rs. 462-5-6, on which simple interest will be allowed at 6 per cent. per annum from to-day's date. We fix a period of six months from to-day within which this sum is to be paid by those defendants against whom the decree remains good, with a direction that, in the event of their failure to pay within the stipulated period, the proprietary rights in the mahal in suit as specified at the foot of the plaint shall be brought to sale. We add to the decree a declaration that, out of the sum of Rs. 462-5-6, three-elevenths, being the malikana allowance for three years prior to the institution of the suit, is enforceable as a personal liability against the defendants jointly, in the event of the whole money not being realized by the sale of the mortgaged property; but that the balance, that is to say, eight-elevenths of the sum decreed, is not recoverable as a personal liability from any of the defendants. This appeal has succeeded only upon a point not taken in the memorandum of appeal which was argued by permission of the Court. We therefore think that the appellants (other than Chettan Das, Bhikhu Mal, Jagdish Saran and Bisheshar Dayal) must pay the costs of the appeal. The defendants named above, against whom the suit has been dismissed, are entitled to their costs throughout, if they can show that they have incurred separate costs.