1. These four appeals arise out of two suits for profits brought by R.H. Skinner and others for their share of the profits of the villages of Kavanpur Jatta and Dhaulana respectively under Section 165, Agra Tenancy Act (No. 2 of 1901). Both these villages are included in the Skinner estate of thirteen villages belonging to the late Stuart Skinner, and on the death of the said Stuart Skinner, the property devolved on his three sons and two daughters. Each son received a one-fourth share and the two daughters received a one-fourth share between them. The one fourth share of Robert Skinner, one of the sons of Stuart Skinner, was purchased at an auction sale by R.H. Skinner, the husband of Ada Skinner, one of the daughters of the late Stuart Skinner, and as the result of this purchase R.H. Skinner, his wife Ada Skinner and her sister Fanny Skinner, became the owners of one-half in both these villages. One of the two remaining shares, the share of George Skinner, another son of Stuart Skinner, was sold and purchased first by one Dargahi Lal and afterwards, on 4th April 1923, by three persona, fianarsi Das, Kanhaiya Lal and Gobind Sarup. The present suits were filed against these persons and also against Victor Skinner, the son 'of Robert Skinner, who was in the year 1330 Fasli the lambardar of the village Karanpur Jatta, and James, son of George Skinner, who was for the same period the lambardar of the village of Dhaulana, and the suits are for settlement of accounts and profits said to be due to the plaintiffs from these their other cosharers. The fact that Banarsi Das became the lambardar of these two villages in the year 1330 Fasli is not mentioned in either of the plaints; nor is this fact stated in any of the written statements. The case is brought by a co-sharer for profits against other cosharers under Section 165, Agra Tenancy Act (No. 2 of 1901).
2. The Assistant Collector found that these cosharers had collected in excess of their shares and he passed decrees in both suits. In respect of the village of Karanpur Jatta he gave a decree for Rs. 971 odd against Victor Skinner and for Rs. 1,674 against Banarsi Das and Kanhaiya Lal, but exempted Gobind Sarup. In respect of the village of Dhaulana he gave a decree for Rs. 1,219-12-0 against James Skinner and for Rs. 3,749 against Banarsi Das and Kanhaiya Lal, again exempting Gobind Sarup. The two Skinners, Victor and James, have not appealed, but appeals have been preferred in each case by Banarsi Das and Kanhaiya Lal on the one hand and by the plaintiffs on the other. The cass set up by the defendants-appellants in the lower Court was that there was a partition in the year 1918 among the members of the Skinner family by which each member collected his own share, and that consequently the defendants having purchased the share of George Skinner the plaintiffs had no concern with the defendants' collections. This question however is not raised in appeal because it is not now disputed that the defendants-appellants have collected rents much in excess of their one-fourth share which they purchased from George Skinner. Their main grounds of appeal are, first, that the suits were not validly presented on behalf of Ada and Fanny Skinner; secondly, that the defendants have not received credit for certain expenses incurred by them; and thirdly, that decrees should have been passed against Gobind Sarup also. The first two grounds of appeal carry no weight. The suits were presented in a legal manner on behalf of the two ladies who were duly represented by their general attorney. The attempt made to show that this man's power to act for the ladies had been cancelled and not restored has been rightly rejected by the Court below.
3. As to the question of expenses, the lower Court has certainly adopted an improper method for calculating village expenses. It should have allowed a certain percentage on the actual collections. But the amount allowed is a reasonable amount in whichever way it is calculated. I would not be prepared to interfere with the discretion of the lower Court in this matter.
4. The last question as to the liability of Gobind Sarup must be considered in connexion with the appeals filed by the plaintiffs. In these appeals the main question raised is whether the whole amount collected by the defendants should have been divided rateably among the cosharers including the plaintiffs, or whether the plaintiffs were entitled only to a share of the balanee after the defendants had taken for themselves their own proportionate share of the profita. The learned Assistant Collector says:
The plaintiffs' contention that the defendants should have got their profits only rateably cannot possibly stand in a suit for settlement of accounts under Section 165, Act 2 of 1901.
5. This view of law has bean challenged before us on behalf of the plaintiffs. Bat in my opinion, the view taken by the Assistant Collector is correct. A co-sharer as such is not required to make any colleations on behalf of other co-sharers. Where there is no arrangement to the contrary a cosharer can collect from the tenants the amount due to himself, and there is no law which requires him to make good any defect in collections of his other cosharers. A cosharer therefore can only be sued under Section 165, Agra Tenancy Act (2 of 1.901), for any amount which ho has collected over and above his own share. It is only where the duty of making collections has been entrusted to one parson such as a lambardar that a suit can be brought against him for the rateable distribution of the profits of a mabal. The Agra Tenancy Act applies only to the territory within the jurisdiction of the Allahabad High Court. The views taken by other Courts as to the rights and duties of cosharers under similar enactments elsewhere cannot be taken into account by this Court. I can find no case in which the Allahabad High Court has ever expressed the opinion that a cosharer as such can be held liable for anything more than the excess which he has collected and which is due by him to other cosharers. This is clearly the view underlying the decision of a Bench of this Court in the case of Koka v. Chunni : AIR1927All623 where the learned Judges observed:
It must be shown by figures that the other cosharara hid no claim to the excess which the particular cosharer who is plaintiff is claiming,
6. To hold otherwise would, in my opinion, involve the treatment of all co-sharers as though they ware lambardars, and that is not the intention of the Tenancy Act. It is true that in this particular case one of the defendants, namely, Banarsi Das, was the limbardar of both villages from the year 1330 Fasli till the year 1332 Fasli, and ha is still the lamhardar of the village of Dhaulana, but the suits have not bean brought under Section 164, Tenancy Act, and there is no mention anywhere in the pltints or in the written statements that Banarsi Das is being sued as a lambardar. If the plaintiffs have chosen to treat the suits as those for profits between cosharers they must, in my opinion, accept any disadvantage which may result from their own choice. They have wrongly in their plaints asked for decrees based upon gross rentals which could only be done in a suit brought against the lambardar in which negligence was alleged, yet to suit their own purposes they have declined to sue Banarsi Das as lambardar. In my opinion, the Assistant Collector is right in holding that the plaintiffs are only entitled to their share of the excess profits over and above that which has bean collected by the other cosharers in respect of their own shares.
7. This leads to the question of the liability of the several defendants. The learned counsel for the appellants has pointed out that the decision of the lower Court that Govind Sarup should be exempted has not bean given effect to in the decrees. If Gobind Sarup made no collections the amount collected on his behalf by Banarsi Das and Kanhaiya Lal should be regarded as an excess collection and should be subjected to a division among the other cosharers. This plea is, in my opinion, right, but I am not satisfied with' the decision of the lower Court that Govind Sirup should be exempted from the decrees. No doubt both Kanhaiya Lal and Govind Sirup stated at one time or another that they made no collections, yet the decrees have been pissed against Kanhaiya Lal, and not against Govind Sarup, apparently because certain receipts were signed by Kanhaiya Lal and none were signed by Govind Sirup. But the evidence shows that the share of George Skinner was purchased jointly by these three persons, Banarsi Das, Kanhaiya Lal and Gobind Sarup; and the evidance of their agent Sri Rim, which is supported by that of the village patwari, shows that all the collections ware made by Sri Rim on behalf of all these three parsons. I consider therefore that the collections were made by Gobind Sarup in the same way that they were made by Banarsi Das and Kanhaiya Lal, and, consequently, all these three cosharers are able to take from their joint receipts the amount due to themselves and they are all similarly liable to make good to the other cosharers their share of the balance. The decrees of the lower Court should be extended to Gobind Sirup, and this ground of appeal is mat by the necessary alteration in the decrees. In both suits a commissioner wav appointed at the request of the plaintiffs for going through the accounts of collections made by the defendants. The lower Court has said that no appreciable difference was detested by the commissioner between the actual collections and those admitted by the defendants, and he has refused to burden the defendants with the expenses incurred on account of the commissioner's fees and the diet money of a large number of tenants who were summoned to Court uselessly. This decision is challenged in appeal in both suits. But in my opinion the Assistant Collector exercised a proper discretion in the matter and was right in not taxing these costs.
8. The last point raised relates only to the village Karanpur Jatta where there is a tenant named Bhuria whose rent of Rs. 72 was omitted from the list of collections given by the defendants. The Assistant Collector gave half this amount to the plaintiffs, but as he had him. self found that the defendants had already collected their own dues none of this sum could be claimed by thorn. Consequently three quarters of this amount issued to the plaintiffs and one-quarter to the other cosharers who took no part in the proceedings. Thus the amount to be added to the sum due from the defendants in the appeal relating to the village of Karanpur Jatta should be not Rs. 46 as decreed by the lower Court but Rs. 69.
9. In my opinion therefore the defendants' appeals in both cases should be allowed to this extent only that the decrees should be passed against Gobind Sarup as well as against Banarsi Das and Kanhaiya Lal; and the plaintiffs' appeal in the case of Dhaulana should be dismissed and their appeal in the case of Karanpur Jatta should be allowed to this extent only that the sum decreed against the defendants will be Rupees 1,697 instead of Rs. 1,671.
10. I agree with the conclusions arrived at by my learned brother in these appeals on all the points, except, (1) the principle on which the plaintiffs' share of profits has been worked out; and (2) the extent of liability of the lambardars, Kanhaiya Lal and Gobind Sarup.
11. The facts, which are not in dispute, are as follows:
Villages Karanpur Jatta and Dhaulana belonged to the following persons in the following shares: Victor Skinner .... 4 annas.James ' .... 4 annas.Thomas ' .... 4 annas.Ada ' .... 2 annas.Fanny ' .... 2 annas.
12. Victor Skinner's share was sold to R.H. Skinner in execution of a decree. James Skinner's share was sold to one Durgahi Lal and subsequently purchased by Banarsi Das, Kanhaiya Lal and Gobind Sarup, defendants 1 to 3, who are not members of the same family and whose shares inter se are not specified. Victor Skinner was lambardar of village Karanpur Jatta up to Kharif 1330 Fasli, and ha alone made collections up to that time. James Skinner was lambardar of village Dhaulana up to the same period, and he alone made collections in that village up to that time. Banarsi Das, defendant 1, was appointed lambardar of both the villages with effect from Rabi 1330 F., and held that office till the end 1332 F. One Sri Earn alone made collections during that time. He says he acted as the 'karinda' of Banarsi Das, Kanhaiya Lal and Govind Sarup. R.H. Skinner, Ada Skinner and Fanny Skinner, representing an eight anna share, brought two suits for profits under Section 165, Tenancy Act, against all the cosharers, including the past and present lambardars, for their shares of profits for the years 1330 to 1332 F. No question of misjoinder of defendants or of causes of action was raised in the lower Court or in appeal. No notice thereof need therefore be taken of a possible defect on that score.
13. The plaintiffs' shares of profits payable by Victor Skinner in respect of village Karanpur Jatta for Kharif 1330 F., and that due by James Skinner in respect of village Dhaulana for Kharif 1330 F., have been separately ascertained. Similarly, their shares of profits in respect of the two villages for the period Rabi 1330 F., to the end of 1332 F. payable by Banarsi Das and Kanhaiya Lal have been ascertained and decreed, Govind Sarup having been exempted by the trial Court.
14. The method of calculating the plaintiffs' share of profits was as follows:
15. From the collections made by Victor Skinner in respect of Karanpur for Kharif 1330 P. was deducted his share of the entire gross rental, and the plaintiffs were given half of the balance. Similarly, from the collections made by James Skinner in respect of Dhaulana for Kharif 1330. his share of the entire gross rental was deducted and the plaintiffs were given half of the balance. Collections made by Sri Ram were considered to have been made by Banarsi Das and his immediate cosharers Kanhaiya Lal and Govind Sarup. Accordingly, the full share of all the throe in the gross rental was deducted, and half of the balance was given to the plaintiffs. Bach of the cosharers was debited with his share of the Government revenue, public charges and village expenses. There is no question as to this. The result of this mode of calculation is that the lambardars together with Kanhaiya Lal and Govind Sarup received every pie of what was due to them in respect of the gross rental of the village, collected and uncollected, while the plaintiffs got half of the balance and half of the un-collected rental which must include a fair precentage of bad debts. On the face of it, this mode of division is inequitable.
16. The Assistant Collector has held that the
plaintiffs' contention that the defendants should have got their profits only rateably cannot possibly stand in a suit for settlement of accounts under Section 165, Act 2 of 1901.
17. My learned brother has accepted this view on the ground that if a suit had been brought under Section 164 of the Act, collections would have been divisible rateably among the cosharers; but in-asmuchas the plaintiffs chose to bring a suit under Section 165, the lambardar is entitled first to deduct his own share of the gross rental from the collections in his hands and divide the balance. Kanhaiya Lal and Govind Sarup, who are not lambardars, are a fortiori entitled to do so according 'to the above view. I regret 1 am unable to hold that such result necessarily follows from the plaintiffs' action in framing their suit as one under Section 165. I am of opinion that if the issue arising between the parties is identical, it does not matter whether the suit is under one or the other of the two sections. In other words, if the rights and the liabilities of the lambardar are in question in a suit under Section 165, the answer to the issue cannot be different to that to be given to an identical issue arising in a suit under Section 164. This re-mark is however applicable only to the collections made by the lambardar, against whom the suit is substantially one under Section 164. For reasons, which 1 shall presently explain, collections said to have been made by Kanhaiya Lal and Govind Sarup, should be considered as those made by Banarsi Das, the lambardar, in the peculiar circumstances of the case.
18. Section 164, Tenancy Act (2 of 1901), entitles a cosharer to
sue the lambardar for his share of the profits of a mahal or any part thereof.
19. It also makes a lambardar liable for what has been left uncollected through his negligence. The section merely defines the rights and obligations of the cosharers and the lambardar inter se. Such rights and obligations are to be enforced between them whenever a question arises in any proceeding. Section 165 of the same Act likewise entitles a cosharer to
sua another cosharsr for a settlement of account and for his share of the profits of a mahal or any part thereof.
20. It defines the rights and obligations of cosharers inter se in respect of the 'profits of the mahal' of which every one of them should have a share. Every lambardar must also be a cosharer, so that, if a suit is brought under Section 165. a lambardar must be made a party along with other cosharers in whose presence the accounts are to be settled. It is to be noted that in either case, whether it is one under Section 164 or Section 165, what the plaintiffs is to sue for is 'his share of the profits of a mahal or any part thereof.' 'Part of a mahal' in this connexion can mean nothing more or less than a definite share of a mahal, such as 'thok' or 'patti'. Similar expression has been used in Section 106, Land Revenue Act, which provides for partition of 'a mahal or part thereof.'
21. Another section, which must be taken into account in determining the question is Section 194 which provides as follows:
(1) Where there are two or more cosharers in any right, title or interest, all things required or prompted to be done by the possessor of the Same shall be done both conjointly, unless they have appointed an agent to act on behalf of them all.
(2) Nothing m Sub-section (1) shall affect any legal custom or special contract by which a cosharer in as undivided property is entitled to receive separately his share of the rent payable by a tenant.
22. We have it from the patwari that, according to the 'dastur dehi' only the lambardar can make collections in the villages in suit.
23. The conjoint effect of Sections 164, 165 and 194, in the absence of a custom entitling a cosharer to make collections for himself alone, and in respect of his share, is that the lambardar alone is entitled to collect the rent and to divide the profits in his handa among the cosharers, including himsalf, in proportion to their shares, after deducting public charges and incidental expenses. Ha is not entitled to do otherwise. If with the consent of cosharers collection of rent is to be made, not by the lambardar but by another coaharer, not in respect of his share alone but in repast of the entire gross rental, his liability is the same as that of the lambardar for the obvious reason that he occupies a fiduciary position with reference to other cosharers. If any authority is needed for this proposition, Harcharan v. Bindu  32 All. 389 may be referred to. It is ho waver open to question whether such cosharer is liable, like a lambardar for neglecting to collect a point on which I exprass no opinion.
24. As already stated, the lambardar alone is entitled to collect rents in the villages in question according to the 'dastur dahi' or village custom. It follows that co-cosharer is entitled to collect part or whole of the rant of a tenant, and a tenant making payment to any one of them, not being the lambardar, cannot get a discharge in a suit for arrears of rent brought against him by the lambardar, who will be entitled to a decree in respect of the entire rent, the tenant having his remedy of refund from the cosharer who collected in contravention of Section 191 and the local custom referred to.
25. A lambardar, being a representative of all cosharers, cannot give himself the first charge on the collections in respect of his shara of the entire gross rental. Having collected as a representative of the cosharers ha must distribute his collections among the cosharers, including himself, in proportion to their shares.
26. As to whether collections made by Sri Ram should, in the circumstances of the case, be considered, to be those made by Banarsi Das, lambardar, or by all the three including Kanhaiya Dal and Govind Saruo, I am of opinion that the former should be taken to be the case. Sri Rim has stated that:
in the said villages all the servants used to remain under my supervision, and I also used to distribute their pay. It was I who used to prepare accounts.... The account relating to collections which has been filed is quite correct to my knowledge and belief.... There was a roznamcha in which I used to enter daily the amounts of collections and the expenditure.... I used to work under the supervision, of all the throe cosharers, and the one who would come to me would take money from me, I did not ever take a receipt from them.
27. Banarsi Das, the lambardar, had no right to associate with himself two favoured cosharers to the detriment; of others, and if ha did so for his own convenience or theirs the rights of other cosharers cannot be prejudiced. Sri Ram cannot, in my opinion, be implicitly trusted when he says that he made collections on behalf of all the throe. Banarsi Das is a pleader. It is probable that he is attempting to make out such a, case to enable Kanhaiya Lal and Govind Sarup to recover their whole share of the gross rental from the collections, leaving the balance in his hands and the un-collected rent divisible among other co-sharers. Sri Ram holds no power-of-attorney. We have not bean told how much of the collections has bean appropriated by Kanhiya Dal and Govind. Sarup. The latter says ho got nothing. It is not stated by Banarsi Das as to whether Kanhaiya Lal has bean allowed to take one-third of the collections made by Sri Ram. lam of opinion that-Banarsi Das, the lambardar, who alone was entitled and responsible to make collections, should be considered as having made them. Where a limbardar delegates his functions in whole or in part to another cosharer, he is as much responsible for collections made by such cosharers as for those made by a karinda appointed by a lambardar is liable not only for what ha actually collects, but also for what ha neglects to collect.
28. Assuming, for the sake of argument, that each of Kanhaiya Lal and Govind Sarup collected, through Sri Ram, one-third of the total collections, I think their liability is not different from that o Banarai Das. Sri Ram made collections of the entire rental of the villages and did not profess to collect only the shares of his masters. Kanhaiya Lal and Govind Sarup should therefore be deemed to have collected jointly with Banarsi Das not their shares alone but what was payable to all the cosharera. It is not suggested that by arrangement or local custom they were entitled to collect their own shares,
29. Except in a case whore a cosharer acts for himself and is entitled, under an arrangement or local custom, to collect his share of rent payable by each tenant or his share of the entire rental payable by all the tenants, he should be deemed to be acting for the whole body of co-sharers. The fact that he demands the whole rent payable by a tenant clothes him with a fiduciary character. To my mind, there is no difference in principle, between a case where one of the cosharers appropriates part of the common land and where a cosharer collects part of the rent due to all the cosharers. In the first case it is settled law that other cosharers can recover joint possession and it would be no defence to their claim, by the cosharer who has taken exclusive possession of part of the common land, to say that there are other lands of a similar quality with similar advantages and the complaining cosharer can appropriate to himself such land in proportion to his share, the principle being that no cosharer can make a partition for himself by taking possession of what he thinks is less than his share. Similarly, in the second case, if a cosharer collects part of the rent which belongs to all the cosharers jointly he must allow them to participate in the collections made by him and should not he allowed to direct other cosharers to recoup themselves by collecting the arrears. In such a case, law far tens a constructive trust on the cosharer who collects money due to himself and others jointly. Section 90, Trust Act, which occurs under Ch. 9, headed as on certain obligations in the nature of trust', provides inter alia, that;
where a...co-owner or other qualified owner of any property by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property or where any such owner, as representing all persons interested in such property gains any advantage, he must hold for the benefit of all persons so interested the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted in gaining such advantage,
30. There can be no doubt that Kanhaiya Lal and Govind Sarup availed themselves of their position as cosharers, and collected the rent due to themselves and I other cosharers. They could not have made any collections, except under cover of their position as cosharers. Every tenant who made payment to them must have thought that he was discharging his obligation to all the cosharers to whom the rent was payable. They, on the other hand, must have expressly or in pliedly given the tenants to understand that they would secure a discharge as against all the cosharers by making payments to them through their 'karinda' Sri Ram. There is, therefore no doubt that they availed themselves of their position as cosharers. It was obviously in derogation of the rights of other cosharers in so far as they collected not only their own shares but what was payable to all. To hold otherwise would be to open a door for endless scramble. An influential and resourceful cosharer may, in disregard of the power of the lambardar, steal a march over him and other cosharers by collecting from the best tenants to the extent of his share of the gross rental and leaving irrecoverable? rents for the rest. This state of things, if permitted by law, would be intolerable and will lead to gross abuse in certain cases, I am clearly of opinion that Kanhaiya Lal and Govind Sarup, assuming they acted through Sri Ram, must be taken to have occupied a fiduciary position in reference to other cosharers, including the plaintiffs, and that they must throw their collections into the hotchpot for proportionate among all the cosharers.
31. The rights being what I have stated them to be, effect should be given to them in a suit for settlement of account and. 'for profits of the ruahal' under Section 165. If money collected by Kanhaiya Lal and Gobind Sarup is part of the 'profits of the mahal' within the meaning of that section, as I hold them to be the plaintiffs are entitled to sue for their share of it. In my opinion there is no rule on law which deprives the plaintiffs of what is in law due to them, or allows the defendants to retain what they in law are bound to pay to the plaintiffs. The claim was laid under Section 165, because the suit was directed not against the lambardair alone but also against other cosharers, specially Kanhaiya Lal and Govind Sirup. The plaintiffs could not for obvious reasons have confined it to a claim against Banarsi Das alona without running the risk of being met with the plea that Banarsi Das made no collections and that Sri Ram made collections on behalf of Kanhaiya Lal and Govind Sarup. Moreover, Victor Skinner and James Skinner had also collected rents in Kharif 1330 F. The suits may possibly be considered to be defective for misjoinder of defendants and causes of action; but no such question has been raise. The plaintiffs cannot, in my opinion, be penalized for having instituted a suit for settlement of account. They made no incorrect allegations. The facts being all admitted, such reliefs should be granted to them as the law entities them to.
32. The result of my findings is:
(1) That a decree should be passed against Viator Skinner in respect of village Karanpur for Kharif 1330 F. James Skinner in respect of village Dhaulana for kharif 1330 F. and against Banarsi Das who alone should be considered responsible for collections in respect of both the villages for Rabi 1330 and the whole years of 1331 and 1332 F.
(2) That collections should be divided among all the cosharers in proportion to their shares.
(3) That Kanhaiya Lal and Govind Sarup should be left to settle their accounts with Banarsi Das is the manner they deem fit.
(4) That in any case collections made by Victor Skinner, James Skinner and Banarsi Da,8 should be divided in the manner mentioned in (2) above.
(5) That the liability of each defendant should be specified by the decree, as required by the mandatory provision of Section 165(2).
33. The members of this Bench having delivered dissentient judgments a reference of the following questions is made to a third Judge or a larger Bench as the Hon'ble Chief Justice may be pleased to nominate:
(1) Whether in a suit purporting to bo one under Section 103, Agra Tenancy Act, 2 of 1901, a plaintiff is entitled to a proportionate share of the collections made by a larubardar or only to a proportionate share of the bilance left after deduction of the lambardar's full share of the gross rental of the mahal; (2) whether all the collections made by Sri Ram should be considered to have been made by Banarsi Das, the lambardar; (8) assuming that collections made by Sri Ram were, in part made for and on behalf of Kanhaiya Lal and Gobind Sarup (a) whether Banarsi Das, the limbardar, is liable to the plaintiffs for their share in such collections; (b) whether, if Kanhaiya Lal and Gobind Sarup are liable, the plaintiffs are entitled to a proportionate share of such collections or only to a proportionate share of the balance left after deduction of the full shares of Kanhaiya Lal and Gobind Sarup in the gross rental of the mahal.
34. As the decision of a learned Single Judge (Sulaiman, J.), in Durga Prasad v. Ganga Saran A.I.R. 1922 All. 501 may possibly be so construed as to make it in conflict with the opinion expressed by one of us and in view of the questions involved we think it is a fit case in which the reference should be made to a Bench of three Judges.
35. [On reference by the Bench the following judgment was delivered by]:
36. This is a reference by two learned Judges of this Court, who have differed on certain questions of law. The points that have to be decided by me are as follows:
(1). Whether in a suit purporting to be one under Section 165, Agra Tenancy Act 2 of 1901, a plaintiff is entitled to a proportionate share of the collections made by a lambardar or only to a>proportionate share of the balance left after deduction of the lambirdnr's full share of the gross rental of the mahal; (Q) whether all the collections made by Sri Ram should be considered to have been made by Banarsi Das the lambardar; (3) assuming that collections made by Sri Bam were is part, made for and on behalf of Kanhaiya Lal and Gobind Sarup (a) whether Banarsi Das. the lambardar, is liable to the plaintiffs for their shire in such collections, (b) whether, if Kanhaiya Lal and Gobind Sarup are liable, the plaintiffs are entitled to a proportionate share of the balance left after deduction of the full shares of Kmhaiya Lal and Gobind Sarup in the gross rental of the mahal?
37. The facts are given in the judgment of the two learned Judges, and I need not mention them again. Suffice it to say that there were ten cosharers in the village of Dhaulana, and there were seven cosharers in the village of Karanpur Jatta, In respect of each of these villages separate suits were brought for settlement of accounts and recovery of a share of profits. The two suits are, in their main features, similar, and therefore they have been decided together.
38. The plaintiffs asked, as I have already said, for a settlement of accounts, and asked for their share of the profits. In para. 2 of the plaint in Suit No. 8 out of which Appeals Nos. 328 and 338 have arisen, it is stated that
the defendants hid been cosharers in the said village in the years in question, and had made collections, and therefore they are liable tot the profit of the plaintiffs.
39. A similar statement wag made in the connected Suit No. 7 of 1926.
40. It happens that two of the defendants, Banarsi Das and James Skinner, in Suit No. 8, and Banarsi Das and Victor Skinner in Suit No. 7 of 1926, were lambardars, the Skinners for Kharif 1330 Fasli, and Banarsi Das for rest of the period in suit. The Court of first instance found that James Skinner and Victor Skinner had actually made collections during the period for which they were lambardars and giving credit to them for their shares of the profits, directed that the balance should be divided among the cosharers, and gave the plaintiffs a decree for half the sum (the balance), because the plaintiffs owned a half-share. As regards the collections made for the remaining period of the years in suit, the first Court found that Banarsi Dis and Kanhaiya Lal, defendants 1 and 2 alone had made the collections, and the Assistant Collector similarly dealt with the amount collected. In other words, he gave Banarsi Das and Kanhaiya Lal credit for the shares of the profits due to them, and directed the balance to be divided.
41. The learned Judges have differed as to this point, namely, whether the whole of the amounts collected by Banarsi Das and Kanhaiya Lal for one period, and James Skinner and Victor Skinner for the other, should have been divided pro rata among the cosharers, thus giving the plaintiffs a half-share in the collections.
42. One of the learned Judges was of opinion that although the suit was framed as a suit under Section 165, Tenancy Act of 1901., it was virtually a suit under Section 164 of the same Act, and that Banarsi Das or James Skinner or Victor Skinner could not escape liability because the suit was framed under Section 165 of the Act. It was found by the first Court that the actual collections were made by a karinda, Sri Ram, on behalf of Banarsi Das and Kanhaiya Lal, and that Kanhaiya Lal, also made some collections. One of the learned Judges thinks that these collections of Sri Ram should be taken, in law, as a collection by Banarsi Das, the lambardar alone and as being a collection made at the instance of him. The other learned Judge is of opinion that 1 the collection made by Sri Ram should J be treated as a collection made on be half, not only of Banarsi Das and Kanhaiya Lal, but also on behalf of Gobind Sarup, the three gentlemen having; jointly made the purchase of a four annas share.
43. Before I come to give my answer to the several questions put by the learned Judges in their order of reference, I would like to say a few words on the principle on which the questions that have arisen must be decided.
44. A lambardar's position is well known. He is an agent on behalf of all the co-sharers for certain purposes, principally for the collection of the rent payable by tenants and payment of land revenue. At some places, he is entitled to let out the vacant land to tenants and do similar things for the benefit of the entire body of cosharers. In this Court it has been held that he is not an agent on behalf of the cosharers, when they have any claim against some of themselves : see Koka v. Chunni : AIR1927All623 . Thus, the position of the lambardar is well defined, and there is no dispute about that. But as regards cosharer, is he also an agent for the other cosharers. I have not been able to find any authority for the argument that a cosharer, merely as a cosharer, holds any fiduciary position as regards the other coshafers of the village. As a cosharer, a person is entitled to certain privileges, and is also subject to the liability to pay the land revenue, not only for his own share, but for the share of his cosharers, where the liability is joint. But beyond this no liability exists in a cosharer. He is not an agent for the other cosharers, and there is nothing in the constitution of a. village which makes a cosharer an agent for other cosharers. Nobody has appointed a cosharer an agent for others, and the position in the village of a cosharer does not make him an agent for other cosharers. The only authority that has been found in this Court is a decision of a learned single Judge of this Court, and is reported in Lala Durga. Prasad v. Gang a Saran A.I.R. 1922 All. 501. It Was held there that a cosharer was not an agent for other cosharers and I entirely agree with this view.
45. It has been urged that, having regard to Section 194, Tenancy Act, 1901, it is the duty of all cosharers to join to make collections, and where only one cosharer has attempted to make collections for himself, he should be treated as an agent for other cosharers. This would mean that a mere usurper may be treated as an agent for the person whose property he has usurped. If a cosharer is not entitled to make any collections under any village custom, he may be sued in the civil Court for usurping the shares of other cosharers. If a cosharer has been, by custom, allowed to make collections for other cosharers, he may be treated as the de facto lambardar, and may be sued under Section 164, Tenancy Act, 1901. The mere fact that a man who is not an agent has acted contrary to his rights, will not make him an agent for other co-sharers.
46. Holding the view of the law explained above, I proceed to examine the questions propounded by the learned Judges in their order of reference.
47. The first question is:
Whether in a suit purporting to be one under Section 165, Agra Tenancy Act, 2 of 1901, a plaintiff is entitled to a proportionate share of the collections made by a lambardar, or only to a proportionate she of the balance left after deduction of the limbardar's full share of the gross rental of the muhal?
48. As to this question, my answer is that if the suit is under Section 165, no question of one of the defendants being a lambardar can arise, The plaintiffs claimed as against, not the lambardar, but against all the cosharers, as cosharers, the lambardar being treated not as a lambardar, but as a cosharer. In the circumstances I fail to see how a plaintiff can be allowed to change his case, unless he is permitted by the Court to amend his plaint for good reasons given by him. This being my view, my answer to the question is that the lambardar, in the array of the defendants, cannot be treated as a lambardar, but must be treated as a cosharer, and therefore he is entitled I to deduct out of the collections made by I him his full share of the profits of the I mahal, the balance alone being divisible I amongst the other cosharers.
49. Point No. 2 is:
Whether all the collections made by Sri Ram should be considered to have been made by Banaras Das the lambardar?
50. This question may appear to a person who has not studied the facts of the case as a question of fact, and not as a question of law. I take it however that it was meant to be a question of law, because only a question of law can be referred to a third Judge. The idea underlying the question undoubtedly is:
Whether the collection made by Sri Ram, although he professed to have collected, not on behalf of Banarsi Das, the lambardar, alone, but on behalf of Banarsi Das. Kanhaiya Lal and Gobind Sarup, can be treated as a collection by Banarsi Das alone?
51. In my opinion, there is no reason for ignoring the other cosharers on whose behalf Sri Ram may have made the collections. The question to be decided by the learned Judges of the Division Bench is whether Sri Ram's collection is on behalf of Gobind Sarup also or not. If it be found that Sri Ram collected for all the three cosharers, defendants 1 to 3, or if it is found that Sri Ram collected on behalf of only the first two defendants, in either case, the collection must be treated as a collection by cosharers, and not as a collection on behalf of the lambardar alone. This is my answer to the question.
52. The third question is divided into two portions. The first portion would be read as follows:
3(a) Assuming that collections made by Sri Ram were, in part, made for and on behalf of Kanhaiya Lil and Gobind Sarup, whether Binarsi Das, the lambardar, is liable to the pliintiffs for their share in such collections.
53. As I have said above, Banarsi Das as lambardar has no existence in the present proceedings. The accident that Banarsi Das is a lambardar has been completely ignored by the plaintiffs, and, in my opinion the question cannot be revived. That being so, the liability of the first two defendants, or the first three defendants, as the case may be, must be a joint one and Banarsi Das's liability cannot be separated from the liability of the other cosharers who may have jointly collected the profits with Banarsi Das.
54. The last question is:
3(b) Assuming that the collections made by Sri Ram wore, in part, made for and On behalf of Kanhaiya Lal and Gobind Sarup, whether, if Kanhaiya Lal and Gobini Sarup are liable, the plaintiffs are entitled to a proportionate shara of such collections or only to a proportionate share of the balance left after deduction of the full shares of Kanhaiya Lal and Gobind Sarup in the gross rental of the mahal.
55. I have already given my answer to this question in discussing the general principles on which a suit for profits and a suit for accounts should be decided. In the view already expressed, a deduction should be made for the entire shares of Kanhaiya. Lal and Gobind Sarup, along with the share of Banarsi Das and after full credit has been given for the shares of the three defendants the balance alone will be divisible amongst the other cosharers.
56. Let these answers be laid before the Bench who made the reference.