1. This is a defendant's appeal arising out of a suit for profits against a lambardar, under Section 164 of the Agra Tenancy Act. It appears that the defendant was in possession of some of the khudkasht land in this village and a number of suits for profits were brought against him. The profits of these khudkasht lands were calculated at Rs. 241-7-6 per year. On the 10th of August 1914 the defendant purported to make a usufructuary mortgage of the khudkasht lands in favour of a third party for at sum of Rs. 1,000. On the same date he executed a kabuliyat in favour of the mortgagee agreeing to pay Rs. 100 a year as rent for the ex-proprietary tenancy to which he became entitled in lieu of interests. The Court of first instance, in calculating the profits for the years in dispute, took Rs. 100, the agreed amount, as the profits for these lands. On appeal the District Judge has varied the decree of the Court of first instance and has taken the profits at the former figure, viz., Rs. 241-7-6. The defendant comes up in second appeal and on his behalf the decree of the learned District Judge is challenged.
2. When the defendant owned certain khudkasht lands in this village he had a right to make a usufructuary mortgage of those lands. On the making of such a mortgage by the operation of law he became an ex proprietary tenant of the khudkasht lands which he had cultivated for more than twelve years. The law gives him a concession and no one can deprive him of his right to pay only 3/4ths of the rent that is ordinarily payable in respect of non-occupancy holdings of similar lands. In our opinion, therefore, after the execution of the mortgage deed it is not fair to the defendant that he should be called upon to give credit for the sum of Rs. 241-7-6 which had been taken to be the profits of these lands before the mortgage. The rent which he would have had to pay as an ex-proprietary tenant would be 3/4ths of this amount which comes to Rs. 181-6-7 1/2.
3. It appears, however, that after the execution of this mortgage deed in the mutation proceedings which followed under Section 35 or 36 of the Land Revenue Act, the Revenue Court accepted Rs. 100 as the rent which had been agreed to be paid to the mortgagee. We may note that the present plaintiff was not a party to this agreement nor was he made a party to the proceeding under Section 35 or 36 of the Act, and it is difficult to see why he should be held bound by it.
4. In paragraph 2 of the plaint the plaintiff had alleged that a fictitious rent had been caused to be assessed by all sorts of tricks and machinations in spite of the real amount of rent having been assessed on it, and in his grounds of appeal to the lower Appellate Court he stated that the agreement for payment of rent was collusive and fraudulent and was also void as being against the provisions of Section 10 of the Tenancy Act. As this point has not been considered by the learned Judge we thought fit to go into the evidence ourselves and consider the nature of the transactions. On a perusal of the evidence and the terms of the mortgage deed and the kabuliat we are satisfied that the agreement was not fair to the other co-sharers in the village, and the only inference that we can draw is that its object was to prejudice their rights. As they were neither parties to this agreement, nor were they parties to the proceedings under Section 36 of the Act, and the agreement was clearly to their prejudice, they were not bound by this agreement which was entered into between the defendant and his mortgagee.
5. The correct amount of profits to be taken into account in calculating the profits of this village would be the rent which the defendant as an ex-proprietary tenant of these lands would be liable to pay to the proprietors; that sum, as has been noted above, comes to Rs. 181-6-7 1/2 per year. We accordingly allow this appeal and direct that a fresh account be prepared and in that account the rent of khudkasht lands be taken as Rs. 181-6-71 1/2 instead of Rs. 241-7-6 and the interest will be calculated on that amount. The office will prepare a decree in accordance with the above directions. The plaintiff would be entitled to interest at Rs. 12 per cent. per annum up to the date of the suit and thereafter at the rate of Rs. 6 per cent. per annum. The parties will receive and pay proportionate costs of this appeal in all Courts.