Lindsay and Kanhaiya Lal, JJ.
1. This appeal arises out of a suit for pre-emption, and the question for consideration is whether the plaintiffs are entitled to claim pre-emption in respect of the property in dispute. The property in question comprises a certain zamindari share in pargana Kariat Medha in the district of Jaunpur and was sold by Gay a Din Singh, the defendant No. 12, in favour of the defendants Nos. 1, 5, 10 and 11 for Rs. 1,300, on the 25th of February, 1919. The parganas constituting the district of Jaunpur were evidently recast some time after the permanent settlement of 1795, and pargana Kariat Medha is evidently identical with or included, in pargana Karindah, referred to at pages 185 and 245 in the Duncan Records of 1795.
2. The allegation of the plaintiffs was that there was a custom of pre-emption prevailing in the village and that the real sale consideration was Rs. 1,025. The trial court found that there was a custom of pre-emption in the village as recorded in the wajib-ul-arz of 1883-84, but it was inapplicable to the property in question wherein the vendor possessed only the 'rights of a mohlamim.' With regard to the amount of sale consideration the finding of the trial court was that the amount mentioned in the sale-deed was correct. The lower appellate court upheld that decree.
3. The main point for consideration in this appeal is whether the rights of a mohtamim, as recorded in the settlement of 1883-84, are transferable rights of a kind to which the custom of pre-emption, recorded in the wajib-ul-arz, can be made applicable.
4. It was admitted by the parties before the court of first instance that the mohtamims made collections of rents from the tenants, paid the Government revenue and were in the habit of selling their shares and could get the same partitioned. In fact, the entire arrangement in connection with the collection of rents and the letting out of land appertaining to the village was in the hands of these mohtamims, who only paid a certain amount of profits to the absent or sleeping proprietors. In the khasra kistwar, prepared in 1864, these mohtamims were recorded in the column of tenants; but at the time of the last settlement in 1884, two columns were prepared in the khewat, one for the names of the pattidars and the other for the names of mohtamims, mustajirs or murtahins. A mustajir was a farmer; a mohtamim actually meant a manager; and a murtahin meant a mortgagee. The existence of these columns indicated that there was at that time a certain class which was then generally known as mohtamims, possessing certain definite rights. The nature of the rights exercised by these mohtamims being now admitted, the point that arises for consideration is whether these rights were proprietary or under-proprietary rights so as to give rise to a right of pre-emption in case they were transferred.
5. A reference to the settlement report of 1883-84 shows that there were several kinds of proprietary tenures in the Jaunpur district and among these proprietary tenures were two classes of tenures, one of which comprised peshkashdari mahals and the other pattidari mahals in the possession of sarbarahkars or mohtamims.
6. At the time of the permanent settlement of 1795 it was found that these pattidari mahals contained such a multitude of small tenures that it was not easy for the Government to make satisfactory arrangements for the collection of the land revenue from each and every one of the petty holders separately. The Board of Revenue accordingly wrote to Duncan on the 19th of September, 1794, suggesting that, in order to obviate the inconveniences of settling with the numerous pattidars who possessed proprietary rights, it might be advisable to appoint managers such as were provided for by Regulation VIII of 1793 for Bengal. Duncan wrote in reply on the 20th of October, 1794, that he had already concluded his settlement without any applications for managers being appointed, except in one pargana named pargana Karindah and that it was unnecessary to make any change, as every pattidar could sue to have his own pattidari divided. On the 7th of November, 1794, the Governor General wrote to Duncan approving of his view and telling him that it was inadvisable to appoint managers, as suggested by the Board, as it seemed better to permit and support, as far as could be done, the system of internal management with reference to the patticlaris now in force on the principle of preserving union among the different sections of large families, preferring occasional and individual claims to the courts of justice. The best account of what the system adopted by Duncan was will be found in Duncan's own words in, the following extracts from the Benares Regulations, which will be found in the settlement report aforesaid at page 80:
The landholders in the zamindari of Benares consist for the most part of village zamindars, paying the revenue of their lands to Government jointly with one or more pattidars or partners descended from the same common stock. Some of these pattidars have had their interior pattis or shares rendered distinct; -whilst those of the major part still continue annexed to, and blended or in common with, the share or shares of the principal family, or of the headmen amongst the brethren, being either one or more, whose names have been usually inserted in the pattas, kabuliats and other engagements for the public revenue. With the general consent of the inferior pattidars, this mode was adhered to in the aforesaid settlement, leaving an option to such pattidars as might then or afterwards think themselves aggrieved, or be desirous of separating from their brethren, to prosecute, for that purpose in the Adalat. By this mode of procedure, they may obtain a separation of their family share of the estate, and procure a separate patta, subject to the payment of a proportionate part of the jama assessed, on the joint estate; but, in the meantime, those of the brethren whose names stand inserted in the Government patta are held and considered to be immediately responsible, through the amils, to Government for the whole of that jama. The only exception to this general rule exists in the pargana of JCarandah, where the decennial settlement could only be concluded by a considerable number of these zamindars being admitted to enter into kabuliats in which they themselves agreed to the nomination of certain persons to act on their joint parts, under the description of sarbarahkars or managers. This expedient was acquiesced in, under the condition that the responsibility of the zamindars should remain undiminished, and that they might, whenever they pleased, dismiss these agents, after adjusting accounts with and satisfying them as to any balance that might be justly due to them.
7. Although Duncan said he did not want managers, the system he aimed at was a lambardari one. That system appears to have been adopted in respect of pargana Karandah which then formed one of the parganas of the Jaunpur district.
8. Section 23 of Regulation VIII of 1793, which appears to have been followed in this pargana, lays down:
Where more proprietors than one possess an undivided estate, and the whole of them he not within the description of disqualified landholders specified in Section 20, the settlement is to be made with them jointly, and they are to be required to elect a sarbarahkar or manager who shall have the exclusive management of their lands during the continuance of his appointment. The determination of the majority of the proprietors, or of the majority of those present in the event of the absence of any, is to be binding on the remainder in the choice of a manager; and when the votes of the proprietors are equal, the election of the manager is to be determined by the greater interest of the proprietors in the property. If in any case the interest also be equal, the manager is to be appointed by the Board of Revenue.
9. A reference to the various provisions of that Regulation shows the necessity for the various titles assigned to the persons who were made responsible for the payment of the Government revenue in the revision of records of 1883-84. There was a column provided for pattidars or proprietors and there was another column provided for the entry of the names of farmers (mustajirs), managers (mohtamims) and mortgagees (murtahins) the liability of each of whom to pay the Government revenue was recognized, by the Regulation.
10. The managers were clearly the representatives or agents of the entire proprietary body of the mahal and their powers were co-extensive with the powers of the proprietors whom they represented, with the only difference that while all the proprietors continued jointly and severally liable to the Government for the payment of the revenue, the persons who were immediately responsible for the collection of the rents and for letting out the lands to the tenants and for the payment of the revenue were persons who were nominated by the co-sharers or appointed by the Board of Revenue as mohtamims or managers to represent the entire proprietary body.
11. The court of first instance refers to a decision of the. District Judge of Benares in a suit filed by certain superior proprietors against some other persons for a declaration in the Civil Court that they were the zamindars and that the mohtamims were not entitled to claim a partition of the village. That suit was decreed by the first court but on appeal the then District Judge, Mr. Dalai, acting on the analogy of 'peshkashdars' and 'farotars' referred to in the settlement report of Mr. P.C. Wheeler, came to the conclusion that the mohtamims were under-proprietors holding under what he called a mohtamim tenure and were entitled to sue for a partition of their share. A peshkashdari tenure is, however, different from a mohtamim tenure, for as stated in the old Gazetteer of the Jaunpur district compiled by Mr. (now Sir John) Hewett, the peshkashdari mahals received their name from the fact that their revenue was formerly assigned for the maintenance of the Jaunpur garrison and was collected by the Bakshi or the paymaster of the Army. The mohtamims were appointed in accordance with Regulation VIII of 1793 and possessed proprietary rights. They were themselves co-sharers and possessed a power of management over the entire mahal on behalf of all the pattidars or co-sharers of the village.
12. The wajib-ul-arz recording the custom of pre-emption was verified by all the mohtamims and some of the superior proprietors ; and we have no doubt that these mohtamims held at any rate a kind of proprietary interest in the village and that the custom of pre-emption recorded in the wajib-ul-arz was applicable to them. The plaintiffs are, therefore, entitled to claim pre-emption. The correctness of the finding of the trial court regardimg the amount of sale consideration settled for the property in question is not here disputed. This appeal must, therefore, succeed and is accordingly allowed, the result being that the claim of the plaintiff will stand decreed for possession of the property in dispute subject to the payment of Rs. 1,300 into court to be paid over to the defendants vendees within two months from this date. In case of payment the plaintiffs will get their costs here and hitherto from the defendants vendees and in case of non-payment the defendants vendees will get their costs here and hitherto from the plaintiffs.