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Molai Misir Vs. Gopal Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1940All485
AppellantMolai Misir
RespondentGopal Lal and anr.
Excerpt:
- - but it is well settled that an exproprietary tenant becomes the tenant not only of the transferee but of the entire coparcenary body......and khudkasht land to the plaintiff-respondents. on the execution of this mortgage, molai acquired exproprietary rights in half of the sir and the khudkasht land, but no proceedings under section 36, land revenue act (3 of 1901), were, taken with the result that the area in which exproprietary rights were acquired was not specified and no rent was fixed. molai misir continued in possession of the entire sir and khudkasht land. by the suit giving rise to the present appeal the plaintiffs claimed a half share of the profits of the sir and khudkasht land and this claim was allowed in its entirety by the assistant collector. but on appeal by molai the lower appellate court decreed the plaintiff's claim only for a one-fourth share of the profits of the sir and khudkasht land.2. the defendant.....
Judgment:

Iqbal Ahmad, J.

1. This is a defendant's appeal arising out of a suit for profits filed in the Revenue Court under Section 227, Agra Tenancy Act (3 of 1926). The claim was with respect to 1341 to 1343 fasli. The facts that give rise to the question of law that has been argued in the present appeal are not in dispute and are as follows: Molai Misir, defendant-appellant, was the sole owner of a patti called patti Molai Misir. An area of 17.63 acres of sir and an area of 3.46 acres of khudkasht land appertained to this patti. On 6th September 1917, Molai Misir usufructuarily mortgaged his half share in the patti including the sir and khudkasht land to the plaintiff-respondents. On the execution of this mortgage, Molai acquired exproprietary rights in half of the sir and the khudkasht land, but no proceedings under Section 36, Land Revenue Act (3 of 1901), were, taken with the result that the area in which exproprietary rights were acquired was not specified and no rent was fixed. Molai Misir continued in possession of the entire sir and khudkasht land. By the suit giving rise to the present appeal the plaintiffs claimed a half share of the profits of the sir and khudkasht land and this claim was allowed in its entirety by the Assistant Collector. But on appeal by Molai the lower Appellate Court decreed the plaintiff's claim only for a one-fourth share of the profits of the sir and khudkasht land.

2. The defendant being dissatisfied with the decree of the lower Appellate Court has come up in appeal to this Court, and it is argued on his behalf that as he had mortgaged only a half share in the patti and remained the owner of the remaining half share he was entitled to appropriate the profits of half of the sir and khudkasht land and the plaintiffs were not entitled to a share in the same. It is urged that the only right of the plaintiffs is to realize the rent of half of the sir and khudkasht land in which the defendant has acquired exproprietary rights. It is argued that the proper remedy of the plaintiffs is to take proceedings under Section 36, Land Revenue Act, get the rent fixed and then realize that rent from the defendant. In my judgment, the contention of the defendant-appellant is without force. The component parts of sir rights are proprietary rights and cultivatory rights. In other words, a sir holder has two distinct rights vested in him, viz., proprietary rights and cultivatory rights. On a transfer being effected by a sir holder of his proprietary rights he retains his cultivatory right, and it is this cultivatory right which takes the form of exproprietary tenancy. It follows that on the execution of the mortgage by Molai he acquired exproprietary rights in half the area of the sir and khudkasht land. But it is well settled that an exproprietary tenant becomes the tenant not only of the transferee but of the entire coparcenary body. Molai Misir therefore became the tenant of the plaintiffs and also his own tenant qua half of the area of the sir and khudkasht land. That being so, if rent was assessed on the exproprietary holding, half of that rent would be payable to the plaintiffs and Molai Misir, as the proprietor in possession of half of the patti, will be entitled to the remaining half of the rent.

3. As Molai had mortgaged only half of the patti the proprietary rights in the remaining half remained vested in him, but he, as sir-holder, was solely entitled to possession of half of the sir and khudkasht land in which exproprietary rights had not accrued. This right of exclusive possession remained vested in Molai because of his cultivatory rights. But, by virtue of the mortgage, the plaintiffs acquired proprietary rights to the extent of half in the entire patti including the sir and khudkasht land. It follows that the proprietary rights in that portion of the sir and khudkasht land that did not become the subject of ex-proprietary tenancy became vested in the plaintiffs and Molai in equal shares. As half of the sir and khudkasht land did not become subject to exproprietary tenancy the plaintiffs and Molai were entitled to proprietary rights in the half area in equal shares. The plaintiffs were therefore entitled to profits of one-fourth of the sir land. The lower Appellate Court has calculated the profits payable to the plaintiffs on this basis. The decision of that Court cannot therefore be assailed. The appeal is accordingly dismissed with costs. Leave to appeal under the Letters Patent is granted.


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