1. This is a defendant's appeal arising out of a suit for profits which was filed by the plaintiffs under Section 226, Agra Tenancy Act, in respect of the years 1332 and 1334 Fasli. The plaintiffs were Hub Lal and his son, Ram Rachpal. The former has since died. One Daryao Singh died leaving two widows, Mt. Surja and Mt. Jumna, and on his death his 10 biswas share in the village devolved upon the said widows. On 9th September 1921, the widows jointly executed a usufructuary mortgage of 5 biswas in favour of Hub La.l Mt. Jumna had a daughter by name Mt. Brindaban, who was married to Hub Lal, and plaintiff No. 2 namely, Ram Rachnal, as their son. On 9th January 1922, Mt. Jumna executed a deed of gift in respect, of 5 biswas (2 1/2 biswas being proprietary rights and 2 1/2 being mortgagee rights) to Mt. Brindaban and Ram Rachpal. It is not disputed that the rights of Mt. Brindaban have now devolved upon Ram Rachpal. Mt. Jumna died, about four years before the institution of this suit.
2. The plaintiffs' case was that Hub Lal was a cosharer of 5 biswas as mortgagee in possession in the years, in suit and that Ram Rachpal w.as a cosharer of 2 biswas, 10 -biswansis-in 1332 and 1333 Fasli and of 2 biswas and 7 1/2 biswansis in 1334 Fasli.
3. The Court of first instance decreed the suit of the plaintiffs for Rs. 1,070-0-9. The lower appellate Court has allowed the appeal in respect of Rs. 40, but in other respects, has confirmed the decree of the trial Court. The first plea which is taken before us is that the defendant-appellant is a thekadar and not a cosharer, and that a thekadar cannot legally he appointed lambardar. Under Section 4, Land Revenue Act. a lambardar is defined as:
a co-sharer of a mahal appointed under this Act to represent all or any of the co-sharers in-the mahal.
4. Whatever the position of a thekadar may be under the Act of 1926, it cannot be denied that he was not a cosharer under the Act of 1901. On the other hand, it is perfectly clear that the defendant in this case was the de facto lambardar. It is not pleaded that he was appointed without his consent, and it is admitted that he acted as lambardar in the years in suit, and that as lambardar he collected rents. This being so, it does not lie in his mouth to say that he had been legally appointed. Having accepted the post of lambardar, it must he presumed that he consented to perform the obligations which go with the post. In our opinion therefore this plea cannot prevail. The next point taken is that Mt. Jumna was only competent to transfer her life interest to Ram Rachpal and Mt. Brindaban and it is argued that her deed of gift, ceased to be operative after her death. It is a fact that Mt. Jumna had only a life-interest in the property which she has thus transferred, and her deed of gift was voidable at the option of her oo-widow, Mt. Surja. No one else had the right to challenge the transfer during the life-time of Mt. Surja, and since Mt. Surja herself has not done so, it must be presumed that the transfer was made with her consent. The third plea taken is that the defendant-appellant is not liable to pay profits on the basis of gross rental.
5. The lower appellate Court has found that the tenants were solvent, so much so that their rents were enhanced, and the Court points out that the defendant-appellant has failed to show that he filed any suits against the tenants or distrained their crops in order to realise the rent. No receipt books were produced before the Court to show how much was realised in the way of rent and from, whom it was realised, and the defendant made no effort to have the rents entered up in the siyaha. In the circumstances the Courts below were justified in giving the plaintiffs a decree on the basis of gross rental. The only point which remains is as regards village expenses. The Court of first instance allowed village expenses at the rate of 5 per cent, on the net profits, but the lower appellate Court has allowed village expenses at the rate of 10 per cent. We consider however that these should be on the basis of gross rental, and on this calculation it is conceded by counsel that the defendant-appellant is entitled to a further set off of Rs. 90.
6. The result of our findings is that we allow this appeal to the extent that we reduce the amount which has been decreed by the lower appellate Court in the amount of Rs. 90 only. This suit is therefore decreed for Rupees 940 with past interest at 12 per cent, and pendente lite and future interest at 6 per cent. The parties will pay and receive costs in proportion to success and failure.