1. The dispute in these appeals relates to a 6 annas 4 pies share of the village Bawanda, which originally belonged to Paigambar Baksh alias Abdullah, a retired Subordinate Judge of these Provinces. He had purchased the entire village in the name of his wife. Musammat Allarakhi Bibi. She survived Paigambar Baksh and had by him two sons. Saiyid Muhammad, Saiyid Mahmud and a daughter Musammat Khudeja Bibi. She died in September 906. Her son Saiyid, Muhammad had died in her lifetime leaving two sons, Saiyid Husain and Saiyid Mohsin. Musammat Khudeja Bibi had died a few days after her leaving her husband, Saiyid Muhammad Zuber, as one of her heirs. On the death of Musammat Allarakhi a dispute arose between her grandsons, Saiyid Husain and Saiyid Mohsin, her son Saiyid Mahmud and Muhammad Zuber, the husband of Musammat Khudeja Bibi, each of whom claimed a right of inheritance to the said property. It was then disputed whether the real owner of that property was Musammat Allarakhi Bibi or her husband, Paigambar Baksh. The Revenue Court allowed mutation of names to be effected in favour of all the claimants without deciding to what share each of them was entitled.
2. During the lifetime of Musammat Allarakhi, Saiyid Ali Zafar used to lookafter her property, getting a salary of Rs. 15 per mensem. He was her nephew. After her death he continued to look after that property on behalf of Saiyid Mahmud and obtained a power-of-attorney from him on the 15th February 1908, (Exhibit 53). Saiyid Mahmud was living in the village Salempur. Saiyid Ali Zafar lived in the same village. Saiyid Mahhutd was married to Musammat Saleha Bibi, the niece of Maulvi Muhammad Usman, a Pleader of Jaunpore. By her Saiyid Mahmud had two sons, Saiyid Uusuf and Saiyid Yamin, the plaintiffs in one of the suits which have given rise to these appeals, and a daughter, Musammat Maryam, Bibi, the plaintiff jn the other suit. Musamma Saleha Bibi died on the 6th March 1898. The dower due to her by her husband, Saiyid Mahmud, had remained unpaid. Saiyid Mahmud is described by the plaintiffs as a man of week intellect and deranged mind (fatir-ul-aql). It was also stated that he was unable to look after the affairs and incapable of managing his property. He neglected to look after the maintenance and education of his sons who obtained an order against him. under Section 488 of the Code of Criminal Procedure for the payment of a monthly allowance of Rs. 15 to them. This order was not, however, obeyed. An application was then made by Maulvi Muhammad Usman, the paternal uncle of their mother, for his appointment as the guardian of their persons, in the Court of the District Judge of Ghazipur. It was granted on the 31st July 1908. It was held in that proceeding that Saiyid Mahmud was of eccentric habits and incapable of looking after his children. Maulvi Muhammad Usman was accordingly appointed as their guardian. The children there after lived with Maulvi Muhammad. Usman at Jaunpore.
3. Meanwhile, Saiyid Mahmud was making various transfers of the property of his mother, Musammat Allarakhi Bibi, including certain perpetual leases in favour of Saiyid Ali Zafar and other persons. One of these leases was executed on the 22nd October 1908 in respect of a 6 annas 4 pie share of the village Bawanda in favour of Saiyid Ali Zafar and Gopal Das for a period of 10 or 11 years.That lease is said to have related to the 6 annas 4 pie share, regarding which there was dispute between Saiyid Mahmud on the one side, and the sons of Saiyid Mahmud, and Muhammad Zuber, on the other. The latter claimed that the property had really belonged to Paigambar Bakhsh and not to Musammat Allarakhi Bibi, while the case of Saiyid Mahmud, was that it was the property of his mother, Musammat Allarakhi. On the same date another lease was granted by Saiyid Hussain, Saiyid Mohsin, and Muhammad Zuber in respect of the remain ing 9 annas 8 pies share in favour of Saiyid Ali Zafar and Gopal Das for a similar period.
4. When Saiyid Yusuf attained majority a suit was filed by him on behalf of himself and as guardian of his minor brother, Saiyid Yamin, for the recovery of the dower due to them and their sister, Musammat Maryam Bibi and to their maternal, grandfather, Abid Husain, against Saiyid Mkhmudi Musammat Maryam Bibi and the heirs of Abid Husain were, also impleaded as defendants. Maulvi Mtihanimad Usman had already withdrawn from the guardianship of Saiyid Yusuf and Saiyid Yamin by an application made by him to the District Judge of Ghazipur on the 1st May 1913. The plaintiffs tried to get Saiyid Mahmud, declared a lunatic and to have a guardian ad Litem appointed for the purpose of that proceeding, but the Court before which that suit was pending, summoned Saiyid Mahmud and after examining him came to the conclusion that Saiyid Mahmud was not so devoid of his senses as to be unable to prosecute his defence. It refused, therefore, to appoint a guardian and them to conduct the defence on his belhalf. The suit proceecded to judgment and was eventually decreed on the 22nd April 1914 (Exhibit KK). In execution of the decree so obtained an eight annas share of the village Bawanda was attached along with some other property belonging to Saiyid Mahmud. During the pendency of a sale proceeding an application (Exhibit 24) was made by Musammat Amina Bibi, wife of Saiyid Ali Zafar, alleging that she had a lease in perpetuity granted to her by Saiyid Mahmud on the 9th of April 1913, and asking that the existence of that lease might be notified at the time of the sale. She however, did not produce any evidence in support of her application, which was rejected on the 18th September 1915 (Exhibit 25). The said property, along with other properties was sold on the 20th and 21st September 1915 and purchased by the present plaintiffs, Saiyid Yusuf and Saiyid Yamin, for Rs. 41,852 out of which Rs. 17,850 were paid for the eight annas share of taluqa Bawanda including certain appurtenant villages.
5. On the 3rd December 1916 the auctiOn-purchasers got possession, but when they applied for the mutation of names in the Revenue papers, they were opposed by Musammat Amina Bibi, who claimed to be entitled to remain in possession of the disputed property, as a perpetual lessee under the lease of the 11th April 1913. Her name had already been entered as a lessee . The Board of Revenue refused to expunge tier name. The present suits were thereupon filed, in which the validity of that lease forms the main subject of contention. One of the suits had been filed by Saiyid Yusuf and Saiyid Yamin, the auction-purchasers, the other by Musammat Maryam Bibi, who claims a 15th share in the property purchased at auction by the former. She had filed a suit for a declaration of her title to a i-5th share against her brothers and obtained a decree by a compromise against them on the 26th March 1917.
6. The allegations of the plaintiffs in these suits were that Saiyid Mahmud was mentally unsound and incapable of entering into a contract,and that, in any event, the lease in question was unenforceable, because it was executed with the object of defrauding the present plaintiff is of the right to recover the dower-debt due by him to their mother, Musammat Saleha Bibi. Among the defendants, to these suits, were Musammat Amina Bibi, her husband Saiyid Zafar and Gopal Dag. The two other persons, Jhagru Rai and Ganga Rai, were also impleaded on the ground that they had obtained a perpetual lease of certain plots of land situated in Bawanda khas from Musammat Amina Bibi and the other co-sharers of the village. Saiyid Mahmud did not appear but the other defendants converted the allegations made by the plaintiffs. The finding of the learned Subordinate Judge was that Saiyid Mahmud was of weak intellect, imbecile, and not possessed of the ordinary capability of managing his affairs. He did not consider that he was a lunatic fit to be sent to an asylum, or an insane person dangerous to society, but he thought that his brain was so far deranged and he was so far incapable of managing his affairs as to render the lease granted by him legally unenforceable. He also found that the lease was granted, without any necessity and for no real consideration, and that the rent reserved by the lease was grossly inadequate. One of the pleas raised by the defendants was that the claim for possession and mesne profits was not cognisable by the Civil Court. His finding on that point was against the defendants. Another plea was that the entire claim was barred by limitation, but on that point, too, the learned Subordinate Judge found against them.
7. The present appeals have been directed against these findings the first question for consideration is whether Saiyid Mahmud was of unsound mind at the time he executed the lease in question and incapable of understanding the nature of the transaction and of forming a rational judgment as to its effect upon his interests. There is no medical evidence adduced in the case, but from the other evidence adduced it is clear that Saiyid Mahmud was a man of deranged mind unfit to manage his property and incapable of understanding what was to his interest and what was likely to operate to his prejudice. Saiyid Yusuf, one of the plaintiffs, was examined in this case. He describes some of the methods and habits of Saiyid Mahmud. He says that Saiyid Mahmud used at times td shut himself up in a room and refused to take food or water and to see people and that he had lost the faculty of distinguishing good from bad and the power of understanding any matter affecting his interests. He further says that he suffered from certain delusions, imagining that he was a military officer appointed by his Majesty the King- Emperor (Sarkar Ali) that he could not take care of his articles of food and drink, and that the mode of his speaking and riving was like that of an unsound person.
8. Muhammad Nairn, a Pleader of Mahmudabad, states that his house was at Salempur and that he knew Saiyid Mahmud. He describes him as a man not possessed even of common intelligence so as to be able to understand what was to his profit or loss. He further states that his mind was not sound or free from defect and mentions that on one occacion when he was passing by his house, Saiyid Mahmud called him and said that he had purchased a certain village and added that he would make it wakf and found a school in which English would be one of the subjects taught, that he had heard that he (witness) was a good teacher and that he would appoint him as a teacher therein. He goes on to say that Saiyid Mahmud had not actually purchased any village and that all that Saiyid Mahmud had said to him was on account of the derangement of his brain. He also says that he heard him saying several times, that he was so busy in the management of Parliament and other Government affairs that he had no time to spare, and that the management of the army had also been entrusted to him. He adds that Saiyid Mahmud would not allow anybody to touch him and testifies to his having been in that condition for not less than 15 or 16 years.
9. Mr. Abdul Halim, a Subordinate Judge of these Provinces, who was for sometime posted as Munsif at Mahmudabad, states that he was living in a house at salempur, a portion of which was occupied by Saiyid Mahmud in 1914, and he observed that Saiyid Mahmud was a man of weak intellect and that his mental power was below the average.
10. The conduct of Saiyid Mahmud in connection with certain matters affecting his estate, is also material for the purpose of determining whether he had the mental condition attributed to him. In one of the letters sent by him to the Sub-Inspector of Police at Mahmudabad on the 22nd July 1912 he stated that the property of Maujvi Muhammad Usman had been confiscated and that a portion of that property had been appropriated by His Majesty the King (Sarkar Ali) and the remainder had been awarded to him. He asked the Sub-Inspector t0, obtain copies of the papers relating to the case from the 'Execution Department' (Exhibit 2). In another letter sent by him to the same Sub-Inspector on the 10th. June 1912 he referred to certain adversaries of his and said : 'It is submitted by Way of information that there are certain persons who have turned out to be our adversaries on account of the suits and disputes relating to properties. Besides them, the persons detailed below are those who sided with our adversaries. Now the procedure fallowed by the persons specified below is that any person who is our adversary goes to them direct and they help him. Some of them show their readiness to make tecommendation, some look after their cases, some become ready to help them as Pleaders and some as Mukhtars and some give them advice. Up to this day every person has acted like this in every case. It shall be known on perusal of the record.
11. In a letter-written by Saiyid Ali Zafar to a certain Pleader the former complaired that Saiyid Mahmud was bringing about his own ruin. That the draft prepared by Saiyid Mahmud included a world of facts arguments, and decisions, that the whole of his property stood encumbered, and that an injunction had been issued in respect thereof to restrain an alienation of the same. He asked the Pleader to draw up an objection to the injunction regardless of the draft prepared by Saiyid Mahmud or 'retaining at some places the words used by him so that the unfortunate man may approve it ' (Exhibit 10). Before the institution of the suit for dower Saiyid Mahmud had been approached to pay the said debt and the reply he gave, according to Saiyid Yusuf, was that he had fined the Railway Company and that he would pay the dower after the fine had been Realised. Saiyid Mahmud was examined in the suit for dower and the statement made by him contains an indication of his mental condition at the time. He said, for instance, that after the Coronation of the King the management of Bakr Id throughout India had been placed under his charge and that he had looked after the management of the whole of the Native States for two years but had not done so in that particular year. He also stated that the sources from which the Government orders reached him were political secrets and he could not disclose them for fear that he might be committing a crime if he did so. He also said that he used to issue orders to those places where he thought it necessary to make management; but he refused to say in whose name he issued those orders, though he admitted that he had never to leave his house in carrying out his duties in connection with the management of his vast charge. In the present suit he was summoned to give evidence on behalf of the plaintiffs and the reply which he endorsed on the summons was that on account of some urgent Government work he could not attend the Court and give his evidence. The urgent Government work he referred to was evindently a delusion of his own mind.
12. Saiyid Mahmud appears to have shown symptoms of insanity as far back as 1897. In one of the letters written by Abid Husain father-in-law of Saiyid Mahmud to Siaiyid Muhammad, brother of Siaiyid Mahmud, vit was stated by the former that Saiyid Mahmud was really ill and showed the beginning of insanity (agazi janun). This letter Was written on the 12th May 1897 (Exhibit 3). His condition appears to have grown worse since the death of his wife in 1898 and his delusions began to increase and he appears to have neglected the care and maintenance of his sons for whom he evidently showed little tenderness or affection.
13. Saiyid Ali Zafar was clever man ready to take advantage of the mental condition of Saiyid Mahmaud. The lease in dispute was obtained for a consideration of Rs. 700 out of which Rs. 325 were said to have been taken by Saiyid Mahmud for his personal needs and Rs. 360 were said to have been left with the lessee for payment of the maintenance allowance due to the sons of SaiyidMahmuo1, and the rest was said to have been left to be paid to Saiyid Mahmaud afterwards. Some evidence has been adduced on behalf of Musammaf Amina Bibi to show that, out of Rs. 325, Rs. 150 had actually been paid by her to Saiyid Mahmud for payment to Malik R asat Ali on account of grain, said to have been supplied by the latter to Sayid Mahmud. The balance of Rs. 325 is said to have been paid in part to him and the rest spent in the prosecution of some suits with which he was connected, but that evidence has been rightly disbelieved by the learned Subordinate Judge. There is no reference made in the lease to any grain having been purchased from Malik R asat Ali. Out of Rs. 360 left for payment to the sons of Saiyid Mahmud nothing is proved to have actually been paid to them or to the r guardian.
14. The rent reserved by the lease was RS.438 per year, but the Khataunis for 1320. F. filed show that the net profits of the disputed share was Rs. 750-13-9. The previous lease granted by Saiyid Mahmud to Saiyid Ali Zafar and Gopal Das was already in force at the time when the lease in dispute is said to have been granted. A portion of the period of that lease had not even run out. The rent payable under that lease was, it is said, Rs. 477 per year. That lease included a 4 annas share of another small village. Saiyid Mahmud had nothing to gain by granting another lease to Musammat Amina Bibi, while the former lease was in force so as to bind him in perpetuity to a low rent without any countervailing advantage. The rent reserved by the lease was disproprotionate to the net proceeds, and considering the fact that no money was actually paid and that Saiyid Mahmud was a man of deranged intellect, incapable of understanding the nature of the transaction and its effect upon his interests, we have no hesitation in finding that the lease in question was obtained by Saiyid Ali Zafai in favour of his wife in order to gain an improper advantage and to secure a benefit which Saiyid Mahmud was not likely to confer, had he been in a sound state of mind. Not being in a position to understand or to determine rationally whether it was likely to operate to his benefit by reason of his mental condition, the lease must beheld to be void and unenforceable.
15. It is urged en behalf of the defendants-appellants that it is possible that Saiyid Mahmud might have in a lucid moment executed the lease. But judging from the previous mental condition of Saiyid Mahmud and his subsequent conduct in other matters and from the nature of the transaction into, which he was entering we have no reason for thinking that the act was otherwise than an improvident or insensate act of a kind which no man who was of a sound disposing mind, capable of understanding what was to his benefit or what was to his disadvantage, could have done or agreed to do. We need hardly refer to the statement which Saiyid Mahmud made before the Munsif of Mahmudabad on the 17th July 1920 in connection with an inquiry directed by this Court about the sufficiency of a security bond filed during the pendency of these appeals. Saiyid Mahmud stated that,he had given a judgment and the Subordinate Judge had passed a decree in accordance with it and that the High Court had also passed its judgment accordingly. He further stated that, if any officer would pass a judgment against it he would be dismissed. When asked in what capacity he passed the said judgment, he said that his designation was 'Afear-i-Ala' and that it was in that capacity that he passed the said judgment. A statement of the above character could not have been made by a person who was of sound mind. All these circumstances confirm the view that the mind of Saiyid mahmud was deranged and has been so for 15 or 16 years and that he was mentally unfit and incapable of understanding or realjsing the fact of the transaction which Siyid Ali Zafar managed to secure from him for the benefit of his wife. The learned Subordinate Judge does not expressly say that the lease was void from its inception, but, in view of Section 12 of the Indian Contract Act, the only conclusion we can come to is that the lease was void for want of competency to contract, due to the un-soundness of mind of Saiyid Mahmaud, from its very inception.
16. Assuming for the sake of argument that the lease in question was executed while Saiyid Mahmud was in a lucid moment, they plaintiffs would still be entitled to avoid the lease because the object of the execution of that lease was to defraud the plaintiffs of the dower-debt to which they were entitled as the heirs of Musammat Saleha Bibi, the wife of Saiyid Mahmud. There is evidence to show that Saiyid Mahmud was aware that a suit for the recovery of that dower-debt was going to be filed. Saiyid Mahmud had been approached and asked to pay the dower-debt, and his reply was that he had fined the Railway Company and would pay the dower-debt after the fine had been realised. Saiyid Ali Zafar, the general agent of Saiyid Mahmud, had also been approached by means of a letter which Maulvi Muhammad Usman had sent through Siiyid Yusuf. Saiyid Yusuf states that when he handed it over to Saiyid Ali Zafar he gave him a chit in reply saying 'Don't show me the way, keep your man safe. I shall act according as I shall think proper.
17. A notice is said to have been sent on behalf of the present plaintiffs to Saiyid Mahmud for the payment of a dower-debt, the receipt of which was admitted by Saiyid Ali Zafar in his statement of the 15th January 1917 before the Tahsildar of Mammud a bad, but it is not clear from that statement whether the notice referred to the claim for dower. A Commission was issued for the examination of Maulvi Muhammad Usman, but the Commssioner found him seriously ill and unable to give his evidence. He died of that illness afterwards. It was not possible, therefore, to get any direct evidence as to the contents of that notice. After the demand for dower was made, Ali Zafar is stated to have gone to Mr. Bakshish lal, a pleader of Ghazipur, for the purpose of getting a draft of a lease prepared. Auwarulhaq states that he had gone to Bakshish lal in connection with a case and found Haji Ali Zafar there. Ali Zafar told him that Saiyid Mahmud was a lunatic, that his children were about to bring a suit for dower and that he (Ali Zafar) wanted to get a lease executed so that the propety might be saved and some means of subsistence might be left to him. The learned Subordinate Judge has not believed the evidence of this witness in common with the evidence of two other witnesses. We agree that the evidence of the other two witnesses was rightly discredited, but he has given no reasons for disbelieving Anwarulhaq. The later is a Municipal Commissioner and pays a revenue of Rs. 1,500 to 1,750 per year and has no particular reason for giving false evidence in favour of the plaintiffs. Bakshish lal is dead. The motive suggested for the execution of the lease was that Saiyid Mahmud was in urgent need of money partly to purchase grain and partly to pay the maintenance, allowance due to his sons. But, as we have already said, no money was actually paid to him by Musammat Amana Bibi, and out of the amount said to have been left with the lessee for payment to the sons of Saiyid Mahmud nothing was actually paid to them. There was no real need for the execution of the lease, while the earlier lease of the 22nd October 1908; was in existence which was to terminate a few years later. There was, in any case, no necessity for granting a lease in perpetuity for if Saiyid Mahmud required any money, he could easily have raised it by granting a lease of a small area of land, as was subsequently done by some of the other co-sharers and Musammat Amina Bibi in 1914, when a lease of 15 bighas of land was granted in perpetuity and an advance of Rs. 1,450 was secured thereby. The person in whose favour the lease in perpetuity, was executed was the wife of his own general agent, who was a relation of his. It was executed on a low rent, much less than what the property was capable of yielding. The question of title to the property left by Musammat Allarakhi had not till then been decided; and it was still questionable whether Saiyid Mahmud was entitled to the whole property or to a 6 annas 4 pies share there n. The object of Saiyid Mahmud and his transferee clearly was to defraud the creditors, namely the present plantiffs, of their right to recover the dower, which was due to their mother, or at all events to defeat or delay the payment of that debt. The mere fact that the dower-debt was eventually satisfied in its entirety from the property left by Saiyid Mahmud, would not make any difference where the intention is clear, because the test to be applied in such cases is, whether at the time the transaction sought to be impeached was entered into the intention of the parties to that transaction was to defraud or defeat the payment of debts. The right of Saiyid Muhmud to the entire property was not settled till a suit was filed by Saiyid Yusuf and Saiyid Yamin for a declaration of their title to the share claimed by Saiyid Hasan, Saiyid Mohsin and Mohammd Zuber and a decree was obtained in it on the 26th March 1917 (Exhibit 65). But for that decree it is quite possible that the dower-money would have remained unsatisfied and it is equally possible that had this lease been notified, at the time of the auction sale, the property would not have fetched the amount, which was actually realised, and the decretal money may have in part remained unliquidated.
18. It is contended on behalf of the defendants-appellants that Saiyid Mahmud had not disposed of his entire property. It is pointed out that he had a share in the village Rukun-ud-din and another share in the village Kothia Gausiapur, besides a dwelling house of considerable value in the village Salempur, but the first two properties were either subject to a large prior incumbrance or perpetual leases which materially affected their saleable value, and the house last mentioned was the subject of a wakf effected by Saiyid Mahmud long ago. The village of Bawanda was the most valuable and substantial property which Saiyid Mahmud possessed. It was free from all incumbrances, and as stated by Anwarulhaq the object of Saiyid Mahmud and his transferee, Ali Zafar, in putting forward the perpetual lease was to cut out a large and valuable slice out of that property in order that the payment of the dower-debt might be defeated or delayed and the persons entitled to the said dower-debt defrauded and some interest might be saved which might in any event help to secure to Saiyid Ali Zafar and his wife and to Saiyid Mahmud a ireans of subsistance. It is immaterial whether Musammat Amina Bibi shared that intention, for even if she did not do so the fact that the lease was granted to her in perpetuity without any consideration on a low rent is sufficient to justify a presumption that she colluded with her husband, Ali Zafar, and Saiyid Mahmud in obtaining the lease with the object above stated. The plaintiffs are entitled, in the circumstances, to avoid the lease.
19. It is next contended on behalf of the defendants-appellants that a suit for possession of the disputed property and mesne profits was not maintainable in the Civil Court, and reliance is placed in support of that contention on the decisions in Ram Singh v. Girraj Singh 26 Ind. Cas 731 : 37 A. 41 : 12 A.L.J. 1252 and Sher Khan v. Debi Prasad 28 Ind. Cas. 552 : 13 A.L.J. 364 : 37 A. 254. In the former case, a previous attempt had been made by a person who sought to set aside the lease said to have been granted by his agent to eject the lessee by means of a suit for ejectment in the Revenue Court. The existence of a tenancy was thus admitted. In the latter case, the existence of a tenancy was similarly admitted by the mortgagee and formally declared by the Revenue Court on a reference being directed by the Civil Court in a suit brought by the mortgagee for the ejectment of the person to whom the mortgager had granted the lease. A reference has also been made to the decisions in Badri v. Khurshed Ali Khan 41 Ind. Cas. 15 : 20 O.C. 182 and Jagannath Singh v. Drigbijay Singh 48 Ind. Cas. 88 : 21 O.C. 210 : 5 O.L.J. 611 But in each of these cases the existence of a tenancy had previously been acknowledged or conceded. The plaintiffs here assert that the contesting defendants were trespassers, and that the lease set up by them was void and unenforceable. The tenancy set up by them was never acknowledged or conceded by the plaintiffs and if the lease granted by Saiyid Mahmud was void or unenforceable, no tenancy can be deemed to have come into existence by virtue thereof. Subject to the provisions of Section 202 of the Agra Tenancy Act (U. P. Act II of 1901) where a tenancy is denied by one party, the validity or otherwise of the document of title on which the other party bases his right, can always be determined by the Civil Court.
20. In Ali Jafar v. Phulmanta 30 Ind. Cas. 546 : 13 A.L.J. 843 it was held that a Civil Court was competent to Give a declaration as to the, existence 01 non-existence of a tenancy, though it was not competent to determine the nature or class to which the tenant belonged. In Raghunath v. Ganesh 54 Ind. Cas. 381 : 18 A.L.J. 241 : 2 U.P.L.R. (A). 79 it was similarly held that a suit filed f r the ejectment of a tenant, on the ground that he was a trespasser, was cognisable by the Civil Court, though if the defendant set up a tenancy, the procedure laid down in Section 202 of the Tenancy Act (II of 1901) would have to be followed in the absence of any previous determination of that matter by a competent Court.
21. In Debi Bakhsh v. Ram Dhani 35 Ind. Cas. 441 : 19 O.C. 58 it was similarly held that the Civil Court was competent to adjudicate upon the validity of a document of title though it was not competent to declare the nature of the tenancy claimed by virtue of it.
22. In the present case the lease was void ab initio because Saiyid Mahmud was not competent to enter into a contract at the time the lease was granted. The position of a person holding under such a lessee is that of a trespasser and in the absence of any admission or adjudication as to the existence of a tenancy in any previous proceeding, the defendant must be held liable to ejectment by the Civil Court.
23. It is also urged on behalf of the defendants-appellants that even if the lease of the 13th April 1913 was void, the defendants, Ali ziafar and Gopal Das, could rely on the earlier lease of the 22nd October 1908 as establishing their title to the disputed land as tenants, but the term of that lease has expired and any rights which might have accrued thereunder were released long ago. The lease granted to Musammat Amina Bibi says so, and in a plaint filed by Saiyid Ali Zafar and Gopal Das against Baldeo Rai and others on the 9th November 1917 (Exhibit 39), it was expressly admitted that the rights under that lease had been surrendered by the lessees, when the lease now in question was executed; Ali Zafar and Gopal Das have not, moreover, appealed from the decree, which had been parsed against them for possession by the Court below, and no such plea can therefore, fee entertained.
24. Another argument urged on behalf of the defendants-appellants is that the Courts below have erred in not following the provisions of Section 202 of the Agra Tenancy Act, requiring the defendants to have the question of their tenancy determined by the Revenue Court. That section states that if in any suit relating to an agricultural holding instituted in the Civil Court, the defendant pleads that he holds such land as a tenant of the plaintiff or a person in possession of the holding from the plaintiff, the Civil Court shall by an order in writing require the defendant to institute within 3 months a suit in the Revenue Court for the determination of such a question. By Section 3 of that Act 'land' is defined as meaning land which is let or held for an agricultural purpose and 'holding' is defined as meaning a parcel or parcels of land held under one tenure or one lease! or engagement. The lease in dispute was taken by Musammat Amina Bibi for the purpose of collection of rent, It comprised, among other things, the right to collect rent and certain zemindari dues. It was not a lease granted for agricultural purposes within the meaning of Section 202; and, as held in Dhandei Kuar v. Chhotu Lai 64 Ind. Cas. 605 : 19 A.L.J. 890 : (1922) A.R. (A) 442 Section 202 has no application. The lessee was a thekadar and may be considered to be a tenant but the property comprised in the lease was not an agricultural holding and the suit was, therefore, not one relating to an agricultural holding so as to make that section applicable.
25. No question of limitation arises because the lease was void from its very inception. The claim for possession, is within time.
26. It only remains to consider the claim set up by Jhagru Rai and Ganga Rai on the strength of the lease in perpetuity of 15 bighas of land granted to them by the co-sharers of a 9 annas 8 pies share and by Musammat Amina Bibi as a lessee of the remainder on the 16th July 1914. The learned Counsel who appears for the plaintiffs-respondents states that the rights of the persons in possession need not be disturbed if those rights can be enforced against the shares of the lessors who own the remaining shares in the village. The plaintiffs have no right to disturb their possession so far as they hold under other co-sharers but these defendants have no right to hold possession under Musammat Amina Bibi.
27. We dismiss the appeal accordingly, subject to the reservation that the rights of Jhagru Rai and Ganga Rai under the lease granted to them by certain co-sharers jointly with Musammat Amina Bibi on the 16th July 1914, will not be affected except in so far as that lease was granted to them by Musammat Amina Bibi, nor will they be liable to ejectment in pursuance of this decree unless the land comprised in their lease is alloted by partition to the share of the plaintiffs. The plaintiffs-respondents will get their costs from the defendants-appellants including fees in this Court on the higher scale. The defendants-appellants will bear their own costs.