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Debi Pershad Vs. Bhagwan DIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.399
AppellantDebi Pershad
RespondentBhagwan DIn and ors.
Excerpt:
co-sharer - sale of proprietary right--ex-proprietary tenant of all the co-sharers and not of the purchaser alone. - - for the purpose of distribution of profits, a hypothetical rent is, in a case like the present, fixed upon the sir land, and all the co-sharers share in this hypothetical rent......a hypothetical rent is, in a case like the present, fixed upon the sir land, and all the co-sharers share in this hypothetical rent. it is quite clear that if the proprietary body were the proprietors of the sir prior to the sale, the particular co-sharer who sells his proprietary rights cannot transfer anything more than his own share. in other words, he is not entitled to sell the whole proprietary title in the land which he held as sir. we think it logically follows that as soon as the co sharer ceases to be a co-sharer and becomes an ex-proprietary tenant of his sir, he becomes the tenant of all the co-sharers in the patti including the purchaser of his share. the plaintiffs were, therefore, entitled to share in the rent payable by the defendants nos. 2-4. it is to be noted.....
Judgment:

1. This appeal arises out of a suit in which the plaintiffs claimed a declaration that they were zemindars and owners of a 1-anna out of a 41/2 annnas share in each of the plots in dispute in, which were detailed in the plaint, and are entitled to realize the rent from the defendants Nos. 2-4, The facts are that one Ram Dayal owned a patti, called Patti Ram Dayal, the extent of which was 41/2 annas of the mahal. After his death, in some way which it is unnecessary to consider, one anna fractioned share went to the plaintiffs and the remaining 31/2 annas went to the defendants Nos. 2-4. The rights of the defendants Nos. 2-4 have been acquired by defendant No. 1, the result of which was that defendants Nos. 2-4 became ex-proprietary tenants of the sir which they held prior to the acquisition of their proprietary rights by defendant No. 1. The real question is whether the defendants Nos. 2-4 are, in the events which have happened, the ex-proprietary tenants of the defendant No. 1 or the ex-proprietary tenants of all the proprietors in the patti, that is to say, of the plaintiffs and defendant No. 1. This was the question which came before a learned Judge of this Court, and from whose judgment this appeal under the Letters Patent has been preferred. The learned Judge came to the conclusion that the defendants Nos. 2-4 were the ex-proprietary tenants of all the proprietors of the patti, and not of the defendant No. 1 alone. In our opinion, this, in view of the circumstances of this case, is correct. It seems to us that prior to the sale, all the co-sharers in the patti were the proprietors of all the plots that went to make up the patti irrespective of the sir rights of the several co-sharers. For the purpose of distribution of profits, a hypothetical rent is, in a case like the present, fixed upon the sir land, and all the co-sharers share in this hypothetical rent. It is quite clear that if the proprietary body were the proprietors of the sir prior to the sale, the particular co-sharer who sells his proprietary rights cannot transfer anything more than his own share. In other words, he is not entitled to sell the whole proprietary title in the land which he held as sir. We think it logically follows that as soon as the co sharer ceases to be a co-sharer and becomes an ex-proprietary tenant of his sir, he becomes the tenant of all the co-sharers in the patti including the purchaser of his share. The plaintiffs were, therefore, entitled to share in the rent payable by the defendants Nos. 2-4. It is to be noted that this is not a case where the vendor is really the sole owner of tire proprietary title in the lands which he holds as Sir. There are some such cases. We dismiss the appeal with costs.


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