1. This is a plaintiff's appeal arising out of a suit for arrears of profits. The position has arisen in a curious way. On the 15th of January,, 1920 one Ram Samujh executed a sale-deed in favour of the plaintiff Rai Bahadur Abhainandan Prasad under which he sold a certain share in village together with the arrears of profits in respect of sir and khudkasht lands due from the co-sharers on account of the previous years 1324,1325 and 1326 Fasli, for a total sum of Rs. 1,000. A suit for pre-emption was brought by the present defendants with regard to the share sold and was ultimately decreed. The judgment in the pre-emption suit is not on this file, but it is admitted that the decree for pre-emption was with regard to the share and it was on payment of the full consideration of Rs. 1,000.
2. The plaintiff instituted the present suit in the revenue Court claiming arrears of profits against the co-sharers. The Court of first instance granted the plaintiff a decree, but on appeal the learned District Judge has dismissed the suit. In the first Court a point was raised that the plaintiff being a legal practitioner had purchased an actionable claim, but that objection was overruled by that Court and the matter was not pressed any further, nor has that point been argued before me in this appeal.
3. The main ground on which the learned Judge dismissed the suit was that under the pre-emption decree the whole of the sale consideration, which had been advanced by Rai Bahadur Abhainandan Prasad had been paid back to him by the pre-emptors who happen to be the present contesting defendants Nos. 1 and 2, and the payment 'must have the effect of destroying any rights which the plaintiff obtained under that decree.' The learned Judge thought that, inasmuch as there remained no consideration for the transfer of the arrears of profits, that right no longer existed.
4. I am unable to agree with the view taken by the learned Judge. If two properties are sold under a sale-deed, one of which is capable of pre emption and the other is not, and the property capable of pre-emption is preempted, the vendee cannot lose his rights in the property which was not capable of preemption. That property must be deemed to remain vested in the vendee. It is immaterial whether the plaintiff did pay the whole or only a part of the total sale consideration. It would have been open to the plaintiff to ask the Court to apportion the consideration and reduce the amount in view of the fact that part, of the property sold was not being pre-empted; but if for some reason or other a pre-emptor omitted to do so, and submitted to a decree for pre-emption of a part of the property on payment of the whole amount, that could not destroy the rights of the vendee in the property which had not and could not have been pre-empted. It follows, therefore, that if the arrears of profits were capable of being sold separately and were not capable of being pre-empted, and have not been pre-empted, then they remain vested in the vendee quite irrespective of the fact, that the vendee has received back the entire consideration which he had originally paid for the sale. The effect of the decree for pre-emption cannot be said to destroy his rights in the arrears of profits which also he had purchased.
5. I can find no law under which arrears; of profits, which have accrued due already, are not capable of being Bold. As a matter of fact there is considerable ^authority for the view that such arrears are saleable.
6. The main question, however, to consider in this case is whether the assignee of such arrears can maintain a suit in revenue Court for these profits although he has no longer any interest left in the property itself. This question is certainly of considerable difficulty and curiously enough there appears to be no reported case under the new Tenancy Act which has decided this point; at least none has been brought to my notice by counsel on either side.
7. It cannot be denied that under the old Rent Act there was some divergence of opinion between the Board of Revenue on the one hand and the Allahabad High Court on the other. Although the rulings in either Court were not absolutely unanimous, yet it may be said broadly that the Board of Revenue inclined to the view that assignees of rend or profits can maintain a suit in the revenue Court because such suits were suits for rents or profits and came exclusively within the jurisdiction of the Revenue Court. On the other hand the Allahabad High Court took a strict view of the sections of the Rent Act and held that assignees of such lease or profits were neither land-holders nor co-sharers within the meaning of those sections and that their remedy, therefore, lay only in the civil Court.
8. The learned vakil for the respondenta has drawn my attention to the cases collected by Dr. Agarwala under Section 102 in his learned Commentary on the Tenancy Act, and has pointed out that the learned author is inclined to favour the view taken by the High Court in the earlier cases. But the author has had to note that as regards suits brought by assigns of arrears of rent there is a ruling of a single Judge of this Gourd reported as Kanhai Bam v. Sukh Deo (1914) 12 A.L.J. 98 laying down that a suit was cognizable by the revenue Court only and nod following the cases of the Allahabad High Court under the old Rent Act. Cases of assigns of rent, however, may be distinguishable because Section 102 does not specifically use the words 'landlord or co-sharers,' whereas Section 165 expressly contains the word 'co-sharer.'
9. But even as regards the old Act there was a passage in the judgment of the learned Chief Justice in the Full Bench case of Lekhraj Singh v. Rai Singh (1892) 14 All. 381 to the effect that there was nothing in the Rent Act, so far as it related to suits for arrears of rent, to indicate that the section applied only where the person suing was the person who was the landholder or landlord at the time when the rent became due; nor was there anything in the section to indicate that the person to be sued in a suit for arrears of rent must necessarily be the person who occupied the position of tenant at the time when the rent, the arrears of which ware sued for, became due. Knox, J., at page 404 (14 All.) also referred to a number of cases where the revenue Court had been field to have jurisdiction where a rant decree had been purchased from the landlord and the purchaser of the decree found it necessary to continue the litigation in the revenue Court, or where a sharer in possession of his share at the time of his suit was allowed to claim in the revenue Court the profits of his share for a previous period during which he was not in posseesion.
10. The present Tenancy Act, however, has a new section, Section 166, corresponding to which there was no section in the old Act. It seams to me that this section was expressly added in order to put an end to this apparent conflict of opinion. Under the new section the word 'co-sharer' in Ch. XI includes also 'the heirs, legal representatives, executors, administrators and assigns of such person.' Prima, facie it would seem that an assign of a co-sharer would be entitled to maintain a suit for settlement of account and his share of the profits under Section 165.
11. The point which has been pressed before me very strongly is that though an assign of the property of a co-sharer has a right to maintain a suit for profits a mere assign of arrears of profits has no such right. The contention is that the person who is suing must have not only acquired the arrears of profits, but must have also acquired the share in the village itself before he can be called an assign of the co-sharer within the meaning of Ch. XI. After careful consideration of the various sections I have come to the conclusion that this contention cannot be upheld.
12. If an assign of a co sharer is suing for profits which have accrued since the assignment then he is not suing as an assign of a co-sharer at all, but he is suing as a co-sharer himself for the profits which have accrued during the time when he is a share-holder. On the other hand a suit for profits by an assign of a co-sharer must of necessity relate to arrears of profits for the period during which the assignor was the co-sharer and the assignee was not, and which profits have been transferred to the assignee. This position must be conceded.
13. It is, however, further contended on behalf of the respondents that there is a distinction between the case where there has been an assignment of profits as well as the property, and the case where there has been an assignment of profits only. It is argued that in the former case the arrears of profits go with the property and, therefore, the assignee may have a right to sue for them; but it is urged that a mere assignee of profits must bring a suit in the civil Court and not in the revenue Court. On principle I am unable to see any such distinction. In the present case, if no suit for preemption had at all been brought, it would be difficult to contend that Rai Bahadur Abhainandan Prasad would not have been entitled to maintain a suit for arrears of profits against the other co-sharers in the revenue Court in respect of the years prior to his assignment He would have been suing for a period when he was not a co-sharer at all. Nevertheless, his suit was bound to have been decreed. Does it make any difference that subsequent to his assignment he has lost the property, though not the profits, by virtue of the pre-emption decree? In my opinion his right to sue for the profits has not been lost at all, nor has the forum where he can maintain such a suit been altered.
14. The learned Judge has said that this was the only point argued before him. I have already come to the conclusion that the view taken by him on this point was wrong. I accordingly allow the appeal, and setting aside the decree of the lower Appellate Court restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher seale.