1. These three second appeals have arisen out of suits for profits under Section 165 of the Tenancy Act. The property in respect of which the profits were claimed is situated in the Allahabad District and it is admitted that His Highness the Maharaja of Benares is one of the co-sharers in each of the villages in respect of which these suits for profits were brought.
2. His Highness the Maharaja was made a defendant in each of the three suits and as against him both the Courts below have dismissed all the suits on the ground that no decrees could be passed against His Highness on the ground that the consent of Government had not been obtained to the institution of the suits against him. In other words, the Courts below applied the provisions of Section 86 of the Code of Civil Procedure.
3. We have now before us three second appeals in which the plaintiff challenges the correctness of the decision of the Courts below. The case for the appellant (the appellant is the same in all three cases) is that, the Courts below were wrong in holding that, so far as these suits were concerned, the Maharaja was not liable to be sued without the previous consent of Government being obtained.
4. There can be no doubt whatever that His Highness is a Euling Chief. We have before us the Treaty or Instrument of ^Transfer which was executed when the dignity of a Ruling Chief was conferred upon His Highness by the British Government.
5. The first clause of this Instrument declares that His Highness shall be the Ruling Chief of Benares from the first day of April 1911.
6. There can be no doubt that, so far as suits under Section 165 of the Agra Tenancy Act are concerned, the provisions of the Code of Civil Procedure apply, as laid down in Chapter 13 of the Agra Tenancy Act (U.P. Act II of 1901), and a reference to the Chapter will show that the provisions of Chapter 28 of the old Code of Civil Procedure, Act XIV of 1882, were applicable in their full force to all suits and other proceedings under the Agra Tenancy Act. It follows, therefore, that the provisions of Sections 83 to 87 of the present Code of Civil Procedure apply to suits under the Tenancy Act.
7. It, therefore, cannot be doubted that it was competent to His Highness the Maharaja in these suits to plead that he was not liable to be sued without the previous consent of the Governor-General in Council or of any other authority to whom the power of granting such consent has been delegated under Section 86.
8. The matter would be perfectly clear except for one provision which is to be found in the Instrument of Transfer by which His Highness was constituted a Ruling Chief. Clause 26 of this Instrument provides in the first instance, that the right to repeal or amend in any way and at any time Bengal Eegulation VII of 1828 or any other Regulation or Law in virtue of which the Raja of Benares enjoys any special privileges within the Pergana of Kaswar Eaja which heretofore was included in the family domains but is exoluded from the State of Benares constituted by this Instrument, is hereby expressly reserved to the Lieutenant-Governor of the United Provinces of Agra and Oudh. So far as this part of Clause 26 is concerned, it clearly reserves a right to the Lieutenant-Governor of the United Provinces to withdraw from 'the Maharaja any special privileges which he had hitherto enjoyed in the Perganah of Kaswar Eaja. Attached1 to this Clause 26 there is a declaration which runs as follows:
Within the other estates now in possession of His Highness which are outside the State of Benares, he shall continue to have the status and responsibilities of a landholder under the ordinary law and within the Perganah of Kaswar Eaja he shall assume that status and those responsibilities.
9. We may observe here that by U.P. Act No. VI of 1916 Eegulation 7 of 1828 was repealed and the provisions of the Agra Tenanoy Act and the United Provinces Land Revenue Act were made applicable in their entirety to all the property of the Maharaja situated in Perganah Kaswar Raja.
10. Mr. Narain Prasad who appears for the ap-pellent here argues that, on the language of this concluding portion of Clause 26, the Maharaja in these suits is not entitled to raise the plea that he has the status of a Ruling Chief and is, therefore, only liable to be sued in case the sanction of the Government has been obtained.
11. It is contended that this language properly interpreted means that, with respect to all lands situated outside the State of Benares, the Maharaja has waived his right to plead his status as a Ruling Chief and is subject to all the responsibilities and liabilities of a landholder under the ordinary law.
12. It is difficult to ascertain what is the correct meaning of this provision and it was in view of this difficulty of interpretation that the learned Judge of this Court before whom this case came in the first instance referred it for consideration by a Bench.
13. We are not, however, disposed to accept the plea of the appellant that the language of the concluding portion of Clause 26 indicates that His Highness the Maharaja intended to waive any right to plead his status as a Ruling Chief in the case of suits which were brought against him in respect of property held by him in British India.
14. We think that, with respect to his liability to be sued in British India, it would be difficult to invest His Highness with a dual personality (1) that of a Ruling Chief, and (2) that of an ordinary citizen.
15. Clearly, Section 86 of the Code of Civil Procedure contemplates the case of a Ruling Chief being sued with respect to interests which he has outside his own territory and within the limits of British India, and it seems to us that the fact that a Ruling Chief may own immoveable property within the limits of British India and outside his own State territories does not entitle the Courts to treat him with respect to the latter property as an ordinary private citizen. That meaning certainly could not be attached to the language of Section 86 of the Act. If we look at Sub-section (3) of Section 86 we find that no Ruling Chief is liable to arrest under the Code, and, further, except with the consent of the Governor-General in Council, certified as aforesaid, no decree can be executed against the property of a Ruling Chief.
16. If we were to accept this argument and treat His Highness as having two personalities in the eye of the law, we should be obliged to hold that in his capacity as a private citizen he would be liable to arrest under the terms of Sub-section (3) of Section 86. We can hardly think that the language of Section 86 contemplates a contingency of this kind, and we are, therefore, of opinion that His Highness being undoubtedly a Ruling Chief was entitled in these suits to claim the benefit of Section 86. We do not think we ought to hold that Clause 26 of the Instrument of Transfer operates in the manner contended for by the learned Counselor the appellant in these cases.
17. Admittedly, the suits with which we are now concerned do not fall within the purview of Sub-section (5) of Section 86. In the class of suits indicated in this sub-section no consent of course is necessary, but these suits were not suits brought by a tenant of immoveable property against His Highness the Maharaja as land-holder. They were, as we have stated, suits, brought by one co-sharer as against His Highness in his capacity as a co-sharer.
18. We hold, therefore, that His Highness was entitled to take the benefit of Section 86 and to plead in bar of the suits the want of consent of the Governor-General in Council. In our opinion the appeals were rightly decided. We dismiss these appeals accordingly with costs including in this Court fees on the higher soale.