Maclean, C.J. and Banerjee, J.
1. This appeal arises out of a suit brought by the plaintiff-appellant to recover khas or direct possession of a 4 annas share in certain plots of land, after ejectment of the defendants 1 to 5 therefrom, on the allegation that the plaintiff has become entitled to the aforesaid share in the disputed lands free of all incumbrances by reason of the said lands having been allotted to her and to defendant No. 6 under a partition held by the Collector. The defence was a denial of the plaintiff's right to eject the defendants 1 to 5 and 8, who claimed to hold certain of the disputed plots of land as permanent tenure holders and the remaining plots in proprietary right.
2. The first Court gave the plaintiff a decree. On appeal by the defendants, that decree was set aside and the suit dismissed. Against the decree of the Appellate Court dismissing her suit, the plaintiff preferred a second appeal to this Court and her second appeal having been dismissed by Mr. Justice Rampini, she has preferred this appeal under Clause 15 of the Letters Patent.
3. The facts of the case as found by the Lower Appellate Court, so far as they are necessary to be referred to for the purposes of this appeal, are as follows: Plaintiff and defendant No. 6 are proprietors of estate No. 1285, and defendant No. 7 is proprietor of estate No. 402. Certain lands of the two estates, amongst which are included the lands now in dispute, were held jointly, the plaintiff and defendant No. 6 owning a 4 annas share each, and defendant No. 7 the remaining 8 annas share, and the defendants 1 to 5 and 8 holding the share as mirasdars; but it is not clear whether they hold under all the co-sharers or under defendant No. 7 alone. On a partition of the lands by the Collector the disputed lands were allotted to the plaintiff and defendant No. 6, so that in addition to a 4 annas share, which each of them held previously, they became entitled to another 4 annas share each; and it is in respect of this additional 4 annas share obtained by the plaintiff that the present suit is brought.
4. These being the facts of the case, the question for determination in this appeal is, whether, if the miras tenure was created by defendant No. 7 alone, the-plaintiff obtained the lands in dispute free from the tenure created by the defendant No. 7 in favour of defendants Nos. 1 to 5.
5. Mr. Justice Rampini has answered this question in the negative and affirmed the Lower Appellate Court's decree dismissing the suit.
6. We are of opinion that the question should be answered in the affirmative, and the case sent back to the Lower Appellate Court to dispose of the appeal after determining the question of fact whether the tenure set up was created by all the co-sharers in the lands or by defendant No. 7 alone.
7. If the miras tenure was created by defendant No. 7 alone, the case might fall within the scope of Section 128 of Bengal Act VIII of 1876, and the tenure would hold good only as regards the land allotted to the share of defendant No. 7. But the point is not quite free from doubt. Mr. Justice Rampini is of opinion that section does not apply to a case like this. One reason urged in support of this view is that Section 128 applies only to a case in which 'a share or a portion of a share,' that is an aliquot part of a share, is let out, and that it does not apply to a case like the present in which the share of the lessor in certain definite plots of land is let out. The words 'portion of a share' in the section are however wide enough to include a case like the present, a co-owner's share in any definite plots of land included in a joint estate being as much a 'portion of a share' as an aliquot part of a share is, though the illustrations to the section no doubt lend support to the opposite view. Another objection to the applicability of Section 128 of Bengal Act VIII of 1876 was that the defendant No. 7 was not 'any proprietor of an estate held in common tenancy and brought under partition,' he having been the owner of estate No. 402, which had some lands in common with estate No. 1285, which was the only estate brought under partition. But the objection is sufficiently met by Section 112 of Bengal Act VIII of 1876, which makes 'all the provisions of the Act in respect of the allotment between the shareholders of one estate' applicable to a case like the present.
8. But even if Section 128 of Bengal Act VIII of 1876 be not applicable to this case, still we think that, according to the general principles of equity, the miras tenure in question, if it was created by defendant No. 7 alone, could not affect the lands allotted to the share of any other co-sharer upon a partition by the Collector, but could hold good only in respect of lands allotted to the lessor's share. For though defendant No. 7 had power to grant a lease of his undivided share in any joint lands, he could not by so doing affect the interest of the other sharers; and those who took the lease, took it subject to the right of those sharers to enforce partition and thereby convert what was an undivided share of the whole into a portion held in severalty charged with the payment of a proportionate amount of revenue. This principle has been recognised and given effect to by the Privy Council in the case of Byjnath Lall v. Ramoodeen Chowdry (1873) L.R., 1. I.A., 106, which was a case relating to a mortgage by a co-owner of joint property. There their Lordships say: 'It is clear that the mortgagor had power to pledge his own undivided share in these villages. But it is also clear that he could not by so doing affect the interest of the other sharers in them, and that the persons who took the security, took it subject to the right of those sharers to enforce partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty.'
9. It might be urged that when any lands of an undivided joint estate, which are incumbered by any co sharer, are allotted to any other co-sharer, the latter should take them subject to, and not free from, the incumbrance, the incumbered condition of such lands being taken into account in the allotment of lands to the different shareholders. That might be so in the case of a private partition. But in a partition by the Collector under Bengal Act VIII of 1876 that cannot be the case, as by Sections 6 and 7 of the Act, the valuation and apportionment of the lands and the assessment of revenue upon the different separate estates created by the partition, must proceed upon the basis of the rents payable by the actual cultivators and not by any tenure-holders, except in cases in which the tenure has been created or recognised by all the co-proprietors.
10. This distinguishes the case of Khan Ali v. Pestonji Eduljee (1896) 1 C.W.N., 62, relied upon by Mr. Justice Rampini, which related to a partition by the Civil Court, from the present case. As for the cases of Nuthoo Lall Chowdhry v. Saadat Lall (1864) W.R., Sp. Vol., 271, and Ahmedoollah v. Ashruff Hossein (1870) 13 W.R., 447: 8 B.L.R., 73 note, also relied upon in support of the judgment appealed against, they must be taken to have been overruled in effect by the decision of the Privy Council in the case of Byjnath Lall v. Ramoodeen Chowdry.
11. We, therefore, reverse the decision appealed against and set aside the decree of the Subordinate Judge, and remand the case to the Lower Appellate Court for the determination of the question whether the miras tenure set up by the defendants 1 to 5 was created by the plaintiff and defendant No. 7, or by the latter alone. If the plaintiff or her predecessor in title is shown to have been a party to the creation of the tenure or to have recognised it subsequently, her suit for khas possession must be dismissed. If not, she will be entitled to a decree. Costs will abide the result.