1. This is a plaintiff's appeal arising out of a suit for profits under Section 164 of the Agra Tenancy Act against the defendant lambardar. The body of the plaint mentioned the year 1327 Fasli only but the account of the amount claimed attached to the plaint shows that the claim was one for arrears collected in respect of the years 1324, 1325 and 1326 Fasli and for the gross profits of 1327 Fasli, The Court of first instance found that the defendant had collected certain arrears for previous years and that he was grossly negligent in the year 1327 Fasli, having collected less than one-third of the gross rental for that year. Nevertheless in view of the ruling in the case of Chhabraji Kunwar v. Ganga Singh 60 Ind. Cas. 643 : 43 A. 29 : 2 U.P.L.R. (A.) 272 : 18 A.L.J., it felt bound to disallow the claim for the arrears of previous years and only granted a decree on the basis of the gross rental for the year 1327 Fasli. The learned District Judge when confronted by the same ruling remarked: 'I must confess that I have not quite grasped the reasoning on which the reported decisions are based. For they seem to lay down the proposition that if a plaintiff fails to prove negligence or misconduct and his suit is decreed for a particular year on the basis of actual collections he is for ever debarred from claiming anything more even if the arrears outstanding are collected in the following year for which the decree is given on the total demand.' He, however, felt bound to follow the ruling referred to above and dismissed the appeal.
2. Now independently of all authorities I would have no hesitation in my mind in holding that the plaintiff's claim for arrears of the previous years actually collected in 1327 Fasli has been wrongly disallowed.
3. Section 164 contains two clauses. The right given in Clause (2) is not a substitute for, but in addition to, that given by Clause (1).
4. Clause (1) entitles a co-sharer to sue the lambardar for his share of the profits of a mahal, or of any part thereof. I think that the word 'profits' in this clause means not only the rental for a particular year but also the arrears of rents remaining outstanding oil account of the previous years.
5. In the case of Nand Kishore v. Ram Raton A. W.N. (1887) 250, Mahmud, J., pointed out that under Clause (h), Section 93 of the Rent Act the word 'profit' meant 'not only rent in respect of the years to which the rent relates, but also to such arrears of rent as are actually realised by the lambardar during the year to which such suit may relate.... What has to be 'seen is, whether in any particular year the lambardar has or has not with due diligence realised such rents as were due for the years to which the suit relates, or also in respect of the arrears of rent for past years.' in S.A. No. 1762 of 1915 Sham Lal v. Raj Bahadur 60 Ind. Cas. 644 note: 43 A. 32 at. P. 33 : 18 A.L.J. (865) (F.B.) decided on the 27th of June 1917 and reported at the foot-notes on pages 32 and 33 of I.L.R., 43 Allahabad, Piggott and Ryves, J.J. said: 'The divisible profits of an agricultural year...mean ordinarily the net balance remaining in the hands of the lambardar after deducting the land revenue, cesses, village expenses and lambardar's dues from his total realisation made during the year, whether on account of the demand of the year itself or on account of the demand of the previous years.' In fact suits for profits under Clause (1) are decreed every day on this basis.
6. Clause (2) entitles a co-sharer to get not only a share of the profits actually collected, but also of such sums as the plaintiff may prove to have remained uncollected owing to the negligence or misconduct of the defendant. Thus under Clause (1) the co-sharer is entitled to have his full share of the amount actually collected whether on account of previous years or for the year in suit and then under Clause (2), in addition to what he is entitled to under Clause (1), he can get his share of the entire amount that has remained uncollected owing to the lambardar's negligence or misconduct. It follows, therefore, that it is open to a co-sharer to obtain a decree for his full share of the arrears of profits of past years collected in a subsequent year as well as of the actual collections made for that year, and in addition to these amounts, his share of the amount which has remained uncollected on account of the subsequent year in suit owing to the lambardars negligence or misconduct. The result will be that he will get his full share of the arrears on the basis of actual collections and his full share of the rents for the year on the basis of the gross rental, in case he proves either neligence or misconduct.
7. It seems to me that this interpretation of the section is the only one which is consistent with the existing rights of the co-sharers. If a suit is brought on the basis of actual collections or if a suit is brought on the basis of the gross rental but a decree is passed on the basis of actual collections only, I am aware of no sound principle on which the co-sharer must be debarred from claiming the remainder of the arrears even if it is actually collected in a subsequent year. Neither the principle of res judicata nor Order II, Rule 2 of the C.P.C. can be a bar to such a claim. As in the absence of any proof of negligence or misconduct the decree is based on actual collections only, the claim for the balance must be deemed to have been for the time being premature. Every co-sharer has a legal right to get his full share of the entire profits after the necessary deductions, which have been collected. If the entire profits are not collected in one year, I see no adequate reason for holding that he cannot get it again if collected in the following year. To hold so would be to penalise co-sharers for no fault of their own. If such a rule were to be enforced, I am afraid lambardars would make a point of leaving rents to be collected in subsequent years, and even co-sharers would hardly think of trying to prove the lambardar's negligence or misconduct at the peril of losing all their claim for previous arrears even though actually collected.
8. That there can be no principle of law or procedure compelling a co-sharer to sue either on the basis of actual collections only or on the basis of gross rental for the period in suit excluding arrears, can be perceived at once by considering the case of an assignee of the profits for one year. If such an assignee gets a decree for his share of the profits actually collected in one year, is there any reason to debar him from recovering the balance of the profits if collected afterwards, provided of course limitation does not come in?
9. I cannot conceive of any reason why, if the lambardar is negligent in one out of three years, the co-sharer should not sue on the gross rental basis for that year and on actual collections for the other two years. I am altogether unable to appreciate the argument that even though a co-sharer has got his share of only the amount actually collected in the last year, and has not got a single farthing out of the rents for the last year collected subsequently, he cannot get a decree for those arrears simply because the defendant has been proved to be guilty of such negligence or misconduct in the subsequent year as to make him liable to account for the rents remaining uncollected also.
10. Coming to the case-law on the question I have already referred to the case of Nand Kishore v. Ram Ratan A.W.N. (1887) 250, where Mahmud, J., pointed out that under the corresponding section of the Rent Act the word profits meant 'not only rent in respect of the years to which the rent relates, but also to such arrears of rent as are actually realised by the lambardar during the year to which such suit may relate.' In S.A. No. 996 of 1906 (Ram Dayal v. Seth Janki Prasad) decided on the 3rd of January 1908 by Stanley, Order J., and Burkitt, J., a second suit to recover the balance of arrears subsequently collected, by the lambardar was entertained. The case can however, be distinguished on the ground that the first suit had been referred to. arbitration and the award had declared that the plaintiff should recover in future any arrears if they were realised.
11. After this came S.A. No. 1762 of 1915, Sliam Lal v. Raj Bahadur 60 Ind. Cas. 644 note : 43 A. 32 at. P. 33 : 18 A.L.J. 865 (F.B.)decided on the 27th of June 1917 by Piggott, and Ryves, JJ. and reported at the foot-notes on pages 32 and 33 of I.L.R., 43 Allahabad. In this case the plaintiffs in addition to claiming their share of the profits for 1315, 1316 and 1317 Fasli, also claimed their shares of the arrears of rent remaining outstanding for 1312, 1313 and 1314 Fasli which were realised in the years in suit. The claim for arrears was altogether disallowed. The judgment was based on the supposition that the claim for the arrears of. 1312, 1313 and 1314 Fasli was barred by time and it could not be properly included in the claim for 1316 and 1317 Fasli, Towards the end of the judgment the learned Judges conceded that the divisible profits of an agricultural year meant ordinarily the net balance remaining in the hands of the lambardar after deducting the land revenue, cesses, village expenses and chaukidars dues from his total realisation made during the year, whether on account of the payment of the year itself or on account of the payment of the previous years. They, however, went on to add that if it is desired to invoke the provisions of Section 164, Clause (2) of the Tenancy Act, the co-sharers could not do more than claim an account on the gross rental payment for that agricultural year. This remark, however, must be understood with reference to the assumption made in that case that the claim for the years 1312, 1313 and 1314 Fasli was barred by time. The learned Judges were much influenced by that circumstance because they remarked that to hold otherwise would be to avoid the Law of Limitation and going beyond t the intention of Section 164 of the Tenancy Act.
12. In the case of Chhabraji Kunwari v. i Ganga Singh 60 Ind. Cas. 643 : 43 A. 29 : 2 U.P.L.R. (A.) 272 : 18 A.L.J. 883, Ryves and Gokul Prasad, JJ., purporting to follow the ruling in Sham Lal v. Raj Bahadur 60 Ind. Cas. 644 note : 43 A. 32 at P. 33 : 18 A.L.J. 865 (F.B.) held that in a suit for profits by a co-sharer against a lambardar, the decree must be based either on the gross rental or on the actual collection. It could not be based partly on the one and partly on the other. In that case, although the claim for the arrears of 1320 Fasli had not become time-barred, it was disallowed. This case was followed by the same Bench in the case of Jodhi Ram v. Kaunsilla 67 I nd. Cas. 521 : 20 A.L.J. 313 : (1922) A.I.R. (A.) 111 : 4 U.P.L.R. (A.) 160 and was again followed by Ryves and Daniels, JJ., in Chhammi Lal v. Sukhrani Kunwar 74 Ind. Cas. 19 : (1923) A.I.R. (A.) 537. But before the last mentioned Bench, the case I am going to refer to presently was not referred to at all.
13. In S. A. No. 1478 of 1920, decided on the 15th May 1922, reported in the Supplement to Vol. V of the Unpublished Decisions at page 162 Asad Ali v. Faiyaz Ali 70 Ind. Cas. 591 : (1922) A.I.R. (A.) 421, Lindsay and Kanhaiya Lal, JJ., referring to the principles laid down in the rulings reported in Chhabraji Kunwar v. Ganga Singh 60 Ind. Cas. 643 : 43 A. 29 : 2 U.P.L.R. (A.) 272 : 18 A.L.J. 863 and Jodhi Ram v. Kaunsilla 67 Ind. Cas. 521 : 20 A.L.J. 313 : (1922) A.I.R. (A.) 111 : 4 U.P.L.R. (A.) 160 did not feel inclined to accept them as being principles of universal application. They were, however, able to dispose of the case on an altogether different ground. With great respect I say that I have grave doubts as to the correctness of the rule laid down in Chhabraji Kunwar v. Ganga Singh 60 Ind. Cas. 643 : 43 A. 29 : 2 U.P.L.R. (A.) 272 : 18 A.L.J. 863, Jodhi Ram v. Kaunsilla 67 Ind. Cas. 521 : 20 A.L.J. 313 : (1922) A.I.R. (A.) 111 : 4 U.P.L.R. (A.) 160 and Chhammi Lal v. Sukhrani Kunwar 74 Ind. Cas. 19 : (1923) A.I.R. (A.) 537 and feel that such a rule would affect the rights of the co-sharers unjustly.
14. Of course the limit to a claim for arrears is imposed by the rule of limitation prescribed in the Fourth Schedule, Group B, which fixes three years from the date 'when the share of the profits becomes payable' and not from the date when they are actually realised. But when no question of negligence and misconduct arises, the share of arrears of rent cannot be said to become payable by the lambardar to the co-sharers before those arrears are realised. The 1st of August fixed by the Local Government under Section 163 must, therefore, be the First of August next after the realisation and not necessarily the 1st of August following the agricultural year to which the arrears relate. This is the necessary conclusion if the word 'profits' in Section 164 includes past arrears. The right to recover a share of the arrears arises after the arrears are collected, and it is difficult to see how limitation can begin to run before the cause of action has arisen. Suppose the lambardar has had to sue a defaulting tenant for arrears of rent. The suit is brought after two years, the litigation takes a year and the decree remains in execution for several years, and then the decretal amount is realised. Is the co-sharers, right to get their share of this amount, banned by time? I am satisfied that it cannot be. For these reasons, I think, with great respect, that the case of Hakim Nazir-ud-din v. Achchi Begam 64 Ind. Cas. 988 : 20 A.L.J. 95 : (1922) A.I.R. (A.) 348 also does not lay down the correct law
15. In view of the fact that the two questions raised in this case are of great importance to this Province, as suits for profits are filed by the thousand every year, and the fact that the rights of co-sharers are affected adversely, I feel constrained, in spite of the successive rulings, to refer the questions to a higher Bench.
16. This appeal raises a question of far-reaching consequence, and requires careful consideration of the law.
17. The appellant in this Court was the plaintiff in the Court below. He brought the suit, out of which this appeal has arisen, for recovery of profits for the year 1327 Fasli against the respondent, who is the lambardar of the village. The appellant's share in the village is one-half. Although the suit was described as one for the year 1327 Fasli, the suit included a claim for sums of arrears for the years 1324 to 1326 Fasli recovered by the lambardar, in the year 1327. The plaintiff alleged that the respondent had been negligent in the matter of collection in the year 1327 Fasli and the Courts below have accepted this allegation as correct.
18. The defence in the suit was, inter alia, that the claim in respect of the arreara of the year 1326 Fasli was barred under Order II, Rule 11 of the C.P.C. At the time of the argument, a further plea was raised that, it was not permissible to the plaintiff to claim arrears of the previous years, if he was disposed to claim his share of the gross rental, on an allegation of negligence on the part of the lambardar, during the year or years in suit. That is to say the plea was taken, that the plaintiff should content himself either with taking what was collected for the year 1327 Fasli (negligence or no negligence on the part of the lambardar for the year 1327 Fasli and the arrears for the previous years collected in 1327 Fasli, or he should content himself with his share in the gross rental of the year 1327 Fasli foregoing all claim for the arrears of the previous years, although collected in the year 1327.
19. The Court of first instance allowed the plea of the defendant on both the points and decreed the claim on the basis of the gross rental of the year 1327 Fasli and held that was the claim for the arrears of 1326 Fasli was barred under the provisions of Order II, Rule 11 of the C.P.C.
20. The Court of first appeal found itself bound by the rulings of this Court and dismissed the appeal of the plaintiff. It did not enter into the question whether the claim for the year 1326 was or was not barred by the provision of the C.P.0. Evidently, the question did not arise, after it was held that claim for only 1327 Fasli could be considered.
21. In this Court, it has been urged by Dr. Agarwala that, the Courts below were wrong in interpreting the rulings of this Court and that, if the rulings of this Court have been rightly interpreted, the rulings did not lay down correct law.
22. It must be noted that, if this contention of the appellant be allowed, the other question as to the application of Order II Rule 11 of the C.P.C. will have to be also considered either by this Court or by the lower Appellate Court.
23. Now let us consider the question before the Court. It has been formulated before. But, it will be better to re-state it for the sake of clearness. It is: 'Whether a plaintiff suing for the profits of any particular year, can claim or not the arrears in respect of the previous years, uncollected in the year under suit if the plaintiff should allege that the lambardar has been negligent in the year in suit and has not collected all the rents, etc, that could have been collected by him and that, therefore, the plaintiffs is entitled to recover fine profits of the year in suit not on the basis of actual collections but on the basis 'of the gross amount that could have been collected?'
24. I will consider the principles and the law before examining the authorities on the point.
25. To start with, the question itself, in my opinion, involves a wrong statement of the rights of the co-sharers. The lambardar is only an agent for the co-sharers, and he is bound to hand over to the co-sharers their shares of the profits after deductions of the just expenses and his own remuneration and share of the profits This is the substantive right and liability of the co-sharers and the lambardar. But, for the purposes of working out this right and liability, it is necessary to fix the date for the distribution of the profits. For, otherwise, 'any co-sharer may bring a suit at any time and Further, as in the case of other suits, it is necessary to fix a limit to the time within which a suit for profits may be allowed to be instituted. The law accordingly fixed that, the profits should be distributable at the end of each year. The year expires on 30th of June and the authorities have laid down that the profits for any year would be payable after the expiry of that year, on 1st of August. For example, the agricultural 1327 Fasli expired on 30th June 1920 A.D. and it would not be permissible to the co-sharers to claim the profits of that year before 1st August 1920. The period within which the suit must be brought has been laid down as 3 years, and any suit for the profits for the year 1327 brought after 1st August 1923 would be barred by limitation.
26. Thus it will be seen that, for the calculation of the profits, the time has been divided into years. A year is, therefore, a unit for the purposes of calculation. A year is again usually divided into two halves, the kharif and the rabi halves. This is so, where the property yields two definite harvests. In the case of other crops, an arbitrary division is made and some crops are regarded as rabi crops and others as kharif. Thus a co-sharer may sue for the profits of only the kharif crop of a year, but he cannot sue till the date for division fixed for the distribution of the profits has arrived.
27. The division of the period during which the profits have accrued into units of years would be a proper division a the rent payable by tenants is calculated by the year. The profit for any particular year, therefore, is the income from the property that has accrued (whether realised or not) in the course of that year. If a rent payable by a tenant for the year 1326 be realised in 1327 Fasli, a co-sharer would get his share of it as the profit of the year 1326 and not as of the year 1327. Suppose a co-sharer sells his property at the end of 1326, and the arrears of that year are collected in 1328; he would still be entitled to recover it.
28. It follows that although a co-sharer has an absolute right to all the profits accruing from his share of the property, he has to specify for which unit or half unit he claims, when he makes a demand. He has to say that he claims the profits which accrued in such and such year. If this be correct, it is not right to say that a claim for the profits of 1327 Fasli would include all the arrears that accrued due in the past years but which were collected in the year 1327 Fasli. Thus the claim of the appellant before us is virtually a claim for the years 1324 to 1327 Fasli. His claim includes his share in the monies that fell due to him and the other co-shares, in the years 1324, 1325 and 1326 respectively although these monies were not collected till 1327 Fasli.
29. Incidently it may be pointed out that there can be no bar to the maintenance of more than one suit for the profits of one particular year, though, except in certain cases, the second suit would also include a claim for a subsequent period. Suppose a co-sharer sells his share in a village at the end of 1324 Fasli. He sues for recovery of his share in the profits of 1324, and it is found that the collections have been less than the amount that accrued due in the course of the year and this without any negligence on the part of the lambardar. The co-sharer would get his share of the money actually collected. There is nothing in the law, nor in justice to prevent him from suing the lambardar again for the balance of the profits when the same may have been collected provided his suit is within time. He did not omit anything from his claim, in the first suit, and hence Order II, Rule 11, will not be a bar. The principle of res judicata will not apply. The suit was partially decreed on the simple ground that only a smaller sum had been collected. If we do not permit a second put, we shall put a premium to a Lambardar's not collecting the full amount of the dues.
30. To go back to the subject. The profit for a particular year is, therefore, only what accrued due in that year, and does not include the sums that fell due in the earlier years, but were collected in that particular year.
31. If this view of the law be correct, it would follow that the plaintiff's claim splits itself up into distinct portions. One portion relates to arrears for 1324, collected in 1327, another to arrears for the 1325, collected in 1327, a third to arrears of 1326 collected in 1327 and, lastly, to profits for 1327. These are distinct claims, based on distinct causes of action and but for the permission to combine causes of action, separate suits would be necessary subject, however, to the provisions of Order II, Rule 11 of the C.P.C.
32. If then the causes of action be distinct, there would be no bar statutory or on general principles, to the plaintiff claiming the arrears of the previous years and the profits of the year just ended, simply because, with respect to the last item of the claim, he says that the lambardar has been negligent in making collections. The lambardar may not have been negligent in the earlier years, or his negligence may be made no ground for complaint.
33. Now, if we examine the language of the Statute, we can discover no bar to the maintenance of such a suit. Section 164, Clause (2) says that the Court may award to the plaintiff not only his share of the profits collected but also of such sums as have remained uncollected owing to the negligence or misconduct of the lambardar. The lambardar, thus, may be held liable for the distribution of the monies collected by him on account of the previous years, and for the year, just ended, and also for sums which accrued due in the year just ended and which remained uncollected owing to the negligence or miscondnct of the lambafdar.
34. Now let us examine the authorities. The first reported case is that of Chhabraji Kunwar v. Ganga Singh 60 Ind. Cas. 643 : 46 A. 29 : 2 U.P.L.R. (A.) 272 : 18 A.L.J. 863. In this case, Ryves and Clokul Prasad, J J., following an unreported case decided by Piggott and Ryves, JJ., came to the conclusion that a plaintiff, in a suit for profits against a lambardar, could either claim on the basis of the actual collections (in this case he may include arrears selected for previous years in the course of the years in suit) or on the basis of the gross rentals, for the years in suit, foregoing in such a case his share in the arrears collected for the previous years. In both the cases, the ground given was, as understood by me, this. The rule of limitation is that a suit for profits must be brought within 3 years of the month of August following the close of the year (No. 16 of the 4th Schedule to the Tenancy Act). If the arrears, say 4 years old, be collected by the lambardar, a suit for the arrears would ordinarily be time-barred for the recovery of the same. But if the plaintiff treats the arrears as the profits of the years for which he has sued, being the sum actually collected by the lambardar, the question of limitation may be waived. But if the plaintiff should claim both the arrears collected and the gross rental of the years in suit, he will be claiming both the items barred by time and the profits of the years in suit. He cannot have both ways. With utmost respect, I have not been able to appreciate the argument. If the claim with respect to the collected arrears be really time-barred, I fail to see how the question of limitation can be got over by giving the plaintiff the arrears on his waiving to claim on the basis of gross rental.
35. In the case of Hakim Nazir-ud-din v. Achchi Begam 64 Ind. Cas. 988 : 20 A.L.J. 95 : (1922) A.I.R. (A.) 348, Ryves and Gokul Prasad, JJ., held that the starting point of limitation for a suit for profits, under Section 164 of the Tenancy Act, was 1st August following the close of the year (agricultural) and that a suit for recovery of arrears of profits, even if instituted within 3 years of actual collection, would be time-barred, if the, suit has been instituted more than 3 years from August following the close of the year on account of which the arrears have been collected by the lambardar. If this really be the law, it must be said that it is extremely unfair to the co-sharers and extremely partial to the lambardar. I would respectfully dissent from this view. I will examine this ruling of their Lordships presently. But assuming this to be sound law, all that will follow in the suit before us now is that only so much of the suit should be dismissed as would fall beyond time, and would not justify the rule that if the plaintiff should claim on the basis of gross rental for certain years, he should give up his claim for the arrears undoubtedly collected by the lambardar for the benefit of not only himself but also of all the co-sharers.
36. In the present case,
year 1324 Fasli ended on 30th June 1917 A.D.
' 1325 do do do 1918.
' 1326 do do do 1919
' 1327 do do do 1920.
37. The suit was brought on 17th January 1921. The starting point for limitation for the claim for 1324 would be 1st August 1917 and for 1325 would be 1st August 1918. Thus only the claim with respect to 1324 would be time-barred. There would then be no justification to disallow the claim with respect to the years. 1325 and 1326, on the mere apprehension of limitation. The Courts can examine each case and dismiss only so much of the claim as would be barred. There is, therefore, no ground for laying down a very broad rule without regard to the actual facts of a case.
38. If we examine the question of limitation, we shall find that the starting point is given in wide language. Column 5 of the 4th Schedule No. 16 says that the period begins from 'When the share of the profits becomes payable.' This date is fixed by the Local Government as 1st August, in cases where no date has been fixed by the Settlement Officer or by the co-sharers themselves. If a suit for, say 1324 Fasli, has to be brought, the starting point would ordinarily be 1st August 1917. But suppose such a suit is brought and it is found that out of the net profits divisible of, say Rs. 1,000, only 600 has been collected, and the plaintiff gets his one-half share in it. If the balance be not recovered till (as alleged in this case) 1327, must the plaintiff lose his share of it, for the simple reason that the money could not be realised earlier and although no blame attaches to him? But it will be argued, well the law says so, and we cannot help it. But does the law really lay down such an absurd rule? The law starts the period from the time when the profits become payable. A share of rent not realised cannot be payable till it has been recovered, by the lambardar. Suppose in a suit brought before, the co-sharer claimed on the basis of gross collection and the Court held that, there was no negligence. Then the arrears for 1324 are collected in 1327. Why should it not be said that this sum of profits became payable after the end of 1927, and on 1st August 1920? This would be the natural meaning of the words. All that the law says is that the plaintiff must claim within 3 years of the date, when according to the rules, the amount should have been paid to him. The amount realised in 1920 could not have been payable to him on 1st August 1917.
39. I am, for the above reasons, of opinion that the suit is maintainable and the Courts below should find out on what dates the arrears for 1324 to 1326 were actually recovered.
40. On the question of the application of Order 11, Rue 2 of the C.P.C, it does not appear how it can apply. All that has been urged is that there was no previous suit for the year 1326. If not, it does not matter. If the arrears of 1326 were not realised till 1327 Fasli, could any claim for the money now claimed could have been made earlier? The facts disclosed do not justify a dismissal of the suit for the year 1326.
41. I would remand the suit to the Court below under Order XLI, Rule 23 of the C.P.C, and ask the District Judge to dispose of the appeal according to law. The costs in this Court to abide the result, the costs including the fees of Counsel on the higher scale.
44. This Reference was laid before, what is called a Pull Bench, because of the great importance of securing that there should be no misunderstanding in the minds of the Courts below who have to deal with thousands of these suits year by year as to the principles which ought to regulate the decision of claims by co-sharers against their lambardars. I think. I am expressing the view of the whole Bench when I say that no Bench of this High Court ever: intended to lay down a principle which would effect a change in the law. The difficulty has arisen over the use of language which, when separated: from its context, may be understood to mean more than was really intended The questions which have been referred to this Bench are as follows:
1. Whether in a suit under Section 164, of the Agra Tenancy Act, a co-sharer is entitled to a decree for his share of the arrears collected on account of previous years, as well as his share of the gross rental for the year in suit, in case the negligence or misconduct of the lambardar is proved.
2. Whether the period of limitation for a suit under Section 164 for a share of profits in respect of arrears collected subsequently, begins to run (a) from the 1st of August immediately following the year to which these arrears relate, or (b) from the 1st of August following the year in which, the arrears are realised.
45. In my view Dr. Agarwala, in opening the argument this morning, was right in. enforcing what he called the fundamental principles underlying the question of adjusting accounts between a co-sharer, and. his lambardar. For the purpose of collection and distribution, a lambardar is, undoubtedly, the agent of the co-sharer and that legal relationship, when a question arises with regard to the accounting by the lambqrdar for the rents and profits for which he is responsible on behalf of his principal, sets in motion two recognised principles of contract law. The first is this: An agent who collects money for his principal subject to a proper deduction for commission, expenses, outgoing and so forth is a debtor to his principal for the balance in his hands. The liability to pay arises when the amount is ascertained, subject to this, that if there is a customary period or a period fixed by some notification having the force of law, such as in this case the 1st of August, or as in England the ordinary quarter day, it becomes payable in the eyes of the law on that date. The fact that it fell due, for example, in the years 1321, 1322 or 1323, could not affect the co-sharer's right to it if it was not received and ascertained till the year 1324. The delay in such a case is neither the fault of the lambardar, nor the fault of the co-sharer. It is the fault of the tenant; and cannot affect the contractual rights, of the parties. This, I take it, is a correct statement of the contractual relationship as laid, down in Sections 217 and 218 of the Contract Act. The second principle is this; an agent who neglects his duty, that is to say, who is guilty of a breach of contract, is ordinarily liable pay compensation, or what is called damages, which directly follow from his breach. If a lambardar does not collect from solvent and willing tenants, if he squanders the cash, and generally fritters away profits which might be realised if he were ordinarily diligent, he is in the eyes of the law, apart from anything in the Tenancy Act, liable for breach of contract. This is provided by Section 212 of the Contract Act. In that case the mischief is different from the one to which I referred under the first principle. He is liable for his own default, and not for the default of the tenants. But in each case his legal liability, when brought before the Court, is a matter of account. He has knowledge of the materials in his hands which enables him to lay before the Court the true state of accounts. The co-sharer has no more than a general knowledge of the rental which ought to be forthcoming, and of the actual failure which has taken place. Now to these two just claims recognised by the Contract Act, there can be only two defences, if the legal relationship is admitted, as of course it must be in the case of a lambardar and a co-sharer. The first is satisfaction either by cash payment or contra account. The second is limitation, by which the law prohibits the co-sharer from enforcing his claim. I think we are all agreed, I hold strongly that there is nothing in the N.W.P. Tenancy Act, and particularly in Sections 163 and 164 which deal with these matters, which professes to modify or qualify, or in any way cut down the fundamental contractual rights of a co-sharer as against his lambardar. It is always dangerous to use language outside the Statute, but in my opinion, Section 164, with which we are immediately concerned, deals only with machinery. That is to say, it provides that on the revenue side a co-sharer may sue in the Revenue Court his lambardar for his share of the profits, and he also may ask the Court in such suit to deal with a negligent lambardar in the manner prescribed in Sub-section 2 of Section 164.
46. I do not wish to say anything which will tend to obscure the question, or create misunderstanding in the minds of the lower Courts with reference to their method of dealing with such a claim as this, but I will take the simplest possible illustration.
47. There is a lambardar who has been grossly negligent, and who, if nothing else appeared, would be liable for a decree for the gross rental. It so happens that, say half a dozen tenants desirous of discharging their liabilities, in spite of his negligence, have handed over to him their rents go that he is in possession of the rents of six of the tenants. If the co-sharer knew this fact, I can see nothing in the Act which would prevent him from doing what he might do in an ordinary Court of law, namely, from suing the lambardar for his share of these six tenants, and in addition for the gross rental in respect of the failure of the lambardar, owing to his negligence, to collect anything beyond anything what the tenants had voluntarily paid. It seems to me that so long as the co-sharer does not get anything twice over, under Section 164, the Court could decree the suit in that way. It could also adopt the alternative method of decreeing what would produce the same result, namely, of awarding the gross rental for the whole zemindari in respect of the lambardars negligence, allowing the lambardar credit for, that is to say, recognising the lambardar's right to retain in his hands, the actual collections which he happened to have made owing to the voluntary act of the tenants. In that sense it is true to say that in one year a co-sharer cannot have both the gross rental and the actual collections, but so far as I can see, that is the only true sense. Subject, to his not getting anything twice over, he is entitled to ask the Court for his share of actual collections arising out of one set of circumstances, and gross rental arising out of the other. I have only taken that as the simplest illustration which I could think of. It follows, of course, from that, that, in my opinion, there is equally nothing to prevent, in a suit against a lambardar by a co sharer for the arrears claimed in respect of three years, the co-sharer from recovering from the lambardar, not only the gross rental on the ground of negligence for each of the three years in suit, but in addition such amount as he can show, or the lambardar admits, that the lambardar has in fact received in respect of rents which were due from the tenants in the years preceding those in suit, but received by the lambardar in the years in suit, in spite of his negligence, always of course provided that no claim made against the lambardar for arrears is barred by Statute as against him. I am inclined to think that the difficulty, which has created obscurity as to these principles which I have endeavoured to state, has arisen more from misunderstanding than from actual deliberate decision by any Bench of this Court, but I agree with the District Judge, who decided the case which has come up to this Court in appeal that he was confronted with decisions which he was bound to follow, as he did. The cases I refer to, are Chhabraji Kunwarv. Ganga Singh 20 B. 227 : 10 Ind. Dec. (N.S.) 710 and the report of a decision by my brothers Piggott and Ryves incorporated in a footnote in the report of the case above-mentioned, decided by them in a second appeal in July 1917, where it may be said that they indicated that collections of arrears preceding the years in suit could not be recovered in the same suit as a suit for gross rental in respect of the years in suit. I am inclined to think that the Bench treated the arrears which were claimed in that suit as being already Statute barred. If they did, I agree with their decision or dicta. If, on the other hand, the claims were not in fact Statute barred, I feel myself unable to agree with the opinion they expressed.
48. That brings me to the second question. I am of opinion that as between the co-sharer and the lambardar, the Statute begins to run in respect of arrears collected, no matter in what year the rent became' due as between the tenant and the zemindar, in, the year in which they have been received by the lambardar. The date in that year is fixed by rule, namely, the 1st of August. The agricultural year ending on the 30th of June, the 1st of August provides a convenient margin for settling up accounts, and I will just state shortly my reason for holding that the Statute runs from the 1st of August following the agricultural year. The word used is 'divisible.' Now you cannot divide what you have not received. You may apportion it, but you cannot divide it. When the lambardar receives the rents, no matter out of what year they arise, under the contract of tenancy, he is entitled to deduct from the gross the expenses of collection, revenue, cesses, out goings, and his own commission. Having done so, he arrives at what is called 'the nett.' Until the nett is ascertained, no one can say what is the share due to any particular co-sharer. It is the nett which is divisible, because the account is dealing with profits, and, in my opinion, when the Statute talks of 'divisible,' it means divisible on the 1st of August. It is the profits which he has to pay and divide, not the rents. Thus if he collects rent due in 1922, and collects them and receives them in 1924, he brings them into his 1924 account, debiting them against himself. On the credit side, as I have said, should appear all his expenses and charges. The,difference between the debit and the credit is the nett, which is divisible. On the 1st of August 1924, and becomes payable on that date, and the Statute runs from that date. I agree with my brother Daniels that when, and in so far as, the claim is based on negligence, the Statute runs from the 1st of August next following the period in which the negligence occurred. In my opinion the two questions submitted to the Court must be answered in that way.
49. I am not prepared to say that the' decision in the case of Hakim Nazir-ud-din v. Achchi Begam 64 Ind. Cas. 988 : 20 A.L.J. 95 : (1922) A.I.R. (A.) 348 is necessarily wrong. My brother Ryves thinks that it should not have been reported, and it certainly does not state the facts clearly, as unfortunately is too often the case in the reports.
50. In my opinion the answer to the first question is 'Yes,' and the answer to the, second question is: 'the 1st of August following the year in which the arrears were realised.
51. I agree. My views with reasons are fully set forth in my Order of Reference which I adopt. I have nothing more to add.
52. I agree generally.
53. As I was a party to the three cases which have been discussed, I think I should add a few words. The case reported in Chhabraji Kunwar v. Ganga Singh 14A. 429 : at P. 448 : A.W.N. (1892) 187 : 7 Ind. Dec. (N.S.) 643 (F.B.) is really irrelevant, because the decree was based on 'actual collections.' The judgment, however, perhaps unfortunately, reproduced a dictum contained in the earlier decision (reproduced in the foot-notes). That dictum was based on the assumption that the arrears of which it speaks of the, previous years were time-barred. While therefore, neither case is really an authority for the general proposition that if a decree is given against a lambardar under the; 2nd Clause of Section 164, on the gross rental,1 of a particular year, he cannot also be held responsible for the profits of previous years collected in that year. I know it, has been generally believed that both these decisions do support the proposition. I am glad that this mistake is now corrected.
54. The third ruling Hakim Nazir-ud-din ,v. Achchi Begam 64 Ind. Cas. 988 : 20 A.L.J. 95 : (1922) A.I.R. (A.) 348 refers to Section 163. The judgment does not set out all the facts. There was no discussion of the point in the judgment, and it seems we accepted the opinion of the District Judge. I find, however, on examining the record of that case that the report does correctly represent what we held. After hearing the elaborate argument in this case, I am satisfied that it was wrongly decided, and I entirely agree with the view now propounded. I think that the Referring Orders of my brothers Sulaiman and Mukerji are unanswerable.
55. I have alreadly written my judgment dealing with the two questions now before us. I do not wish to add anything to what I had already written before the case was referred to the Full Bench. My answers, for the reasons already recorded; are on point No. 1 in the affirmative, and on point No. 2 that the limitation begins to run from the 1st of August following the year in which the arrears are collected.
56. I concur in the answers given by my learned brothers to the questions referred to us. It is obvious that no co-sharer is entitled in respect of the demand for a particular year to recover more than his share of the gross rental for that year. But, subject to this, there is no reason why he should not join a claim to the gross rental of a particular year in which negligence is alleged against the lambardar with a claim for collections made by the lambardar in that year in respect of previous years. In the present case profits of the previous years had been awarded on the basis of actual collections.
57. I also agree that the second question should be answered in the affirmative. Where in a suit gross, rental is claimed on a plea of negligence the cause of action arises on the 1st of August following the close of the Fasli year to which the claim relates, but where the claim is for arrears collected on account of past years, the cause of action arises on the 1st of August following the year in which those arrears are collected.
58. The answer to the first question is, yes.
59. The answer to the second question is from the 1st of August following the year in which the arrears are realised.