Skip to content


Hukum Chand Minor Through Mangal Sen and anr. Vs. Kashi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1945All350
AppellantHukum Chand Minor Through Mangal Sen and anr.
RespondentKashi Ram and ors.
Excerpt:
- .....transferee becomes a successor to that extent. i hold, therefore, that an assignee of the right to recover profits is a cosharer within the meaning of section 231 of the act of 1939 and can institute a suit for recovery of his 3hare of profits.2. it was held in nizakat ali v. shaukat ali : air1943all300 that the transferee of a share who was at the same time assigned the arrears of profits could sue for those arrears under section 231 of the act. the learned judge specifically stated that he was not expressing any opinion about the right of an assignee of profits who was not at the same time a transferee of a proprietary interest, but it seems to follow from the ruling that an assignee of profits would be a cosharer because in that case the assignee was held entitled to recover profits.....
Judgment:

Allsop, J.

1. This appeal arises out of a suit brought in the revenue Court for a share of profits under Section 231, U.P. Tenancy Act, 1939. Munna Lal had a decree against Mt. Manjhli Dulaiya and as this woman's property was protected from sale under the Bundelkhand Land Alienation Act the Court transferred to Munna Lal the right to recover the rents and profits of her property for a certain period on condition that he paid half the amount to her. She had an eight anna share in the property and was to get the profits of a four anna share while Munna Lal was to get the profits of the other four annas. Thereafter Hukum Chand and Mangal Sen, the present appellants, also obtained a money decree against Mt. Manjhli Dulaiya and the decree was executed by the Court's making a so-called lease in their favour on her behalf under the terms of which Munna Lal was to pay to them the profits of two annas out of share which he was to pay by the previous arrangement to Mt. Manjhli Dulaiya. As the profits were not paid, Hukum Chand and Mangal Sen instituted the suit which has given rise to this appeal. It has been dismissed upon the ground that they could not sue for profits because they were not cosharers. There was a subsidiary question whether the civil Court could grant a lease in the form in which it purported to do so, but that question has not been decided, and I express no opinion upon it. Even if the lease could not be granted it would be open to question whether either Mt. Manjhli Dulaiya or Munna Lal could now question the transaction. The only question which I have to decide is whether the revenue Court had jurisdiction to deal with the claim. The learned Assistant Collector and the lower appellate Court have come to the conclusion that the plaintiff was suing as an assignee of the profits and that an assignee is not a cosharer within the meaning of Section 231, U.P. Tenancy Act, 1939. The appellants rely upon the provisions of Sub-section (1) of Section 3 of the Act which says that

all words and expressions used to denote the possessor of any right, title or interest in land, whether the same be proprietary or otherwise, shall be deemed to include the predecessors and successors in right, title or interest of such person.

The Courts below have relied upon the fact that the provisions of Section 229, Agra Tenancy Act, 1926, have not been reproduced in the Act of 1939. The provisions were:

The words 'lambardar,' 'cosharer,' 'muafidar,' assignee of revenue,' 'taluqdar,' and 'superior proprietor' in this chapter include also the heirs, legal representatives, executors, administrators and assigns of such persons.

The section appeared in the chapter dealing with the recovery of arrears of revenue and profits. The provisions in the new Act corresponding with the provisions of Section 229 are those in Sub-section (1) of Section 3 which I have already quoted. It is true that these provisions do not explicitly say that an assignee shall be in the same position as a cosharer, but I think myself that the terms of the sub-section are sufficiently wide to include assigns. There is nothing in those terms which justifies the conclusion that a successor must be the successor in the whole of the right, title or interest of a cosharer. Learned Counsel for the respondents has argued that a right to recover rents or profits is not an interest in land, but I cannot accept this contention. It seems to me that the right to recover the usufruct is the greater part of the interest in the land. It was held in Lallu Singh v. Chander Sen ('34) 21 A.I Rule 1934 All. 155 that the assignee of a portion of an interest was an assignee within the meaning of Section 229 of the Act of 1926. The same argument applies to the provisions in the Act of 1939. A successor does not cease to be a successor if he does not acquire the whole of the right, title or interest of his predecessor. The right to recover rents or profits is undoubtedly a part of the interest of a cosharer in the land and if he chooses to transfer that part of his interest the transferee becomes a successor to that extent. I hold, therefore, that an assignee of the right to recover profits is a cosharer within the meaning of Section 231 of the Act of 1939 and can institute a suit for recovery of his 3hare of profits.

2. It was held in Nizakat Ali v. Shaukat Ali : AIR1943All300 that the transferee of a share who was at the same time assigned the arrears of profits could sue for those arrears under Section 231 of the Act. The learned Judge specifically stated that he was not expressing any opinion about the right of an assignee of profits who was not at the same time a transferee of a proprietary interest, but it seems to follow from the ruling that an assignee of profits would be a cosharer because in that case the assignee was held entitled to recover profits which had accrued when he was not a cosharer in the sense of being a transferee of the whole proprietary interest in the land. It has been suggested by learned Counsel for the respondent, Munna Lal, that his client was not himself a cosharer but was a the kadar. It seems that Munna Lal was not granted the right to recover rents in consideration of his paying a fixed sum by way of rent or theka money, and I am doubtful whether he could properly be described as a thekadar, but even if the argument is correct, the revenue Court will still have jurisdiction to give the plaintiffs their relief. It would not affect the result of the case that it should have been instituted as a suit for arrears of rent rather than as a suit for the recovery of arrears of profits. In either case the revenue Court would have jurisdiction to decide the question in issue and if any money was due it should give the plaintiffs their relief. It should not refuse a substantial relief merely upon the ground that the plaintiffs had mentioned a wrong section of the Act. I may add that it was not contended that a person who was entitled to rent or profits could not assign the right to recover them. I do not think that an assignment of such a right could have the effect of changing the forum for the recovery of the money. If Mt. Manjhli Dulaiya was entitled to institute a suit for recovery of rent or for recovery of her share of the profits, she could assign the right to institute the suit and by doing so she would assign the right to sue in the 'revenue Court and not quite a different right to sue in the civil Court. I have no doubt that the revenue Court had jurisdiction to deal with this matter and I, therefore, set aside the decrees of the Courts below and remand the case to the trial Court for decision upon its merits. The costs in the two appellate Courts shall be costs in the suit and will abide the result. They will be included in the decree for costs as passed by the trial Court. The court-fee may be refunded.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //