P.N. Mookerjee, J.
1. This second appeal arises out of a suit for rent and the dispute relates to the shares of the plaintiffs and co-plaintiffs. The latter have not appeared in this Court and the tenants-defendants who were represented at the hearing of this appeal by Mr. Bakshi have not really contested the appeal, although they are certainly interested in its result.
2. Under the plaintiffs appellants and their co-sharers, four of whom are respondents 3-6 in this Court, and were the co-plaintiffs in the trial Court there was an occupancy raiyati holding held by one Dayal Krishna Naskar. That holding was sold in a rent sale in R. Ex. Case No. 879/41 and some of the landlords, namely, the plaintiffs-appellants and the co-piaintiffs-res-pondents 3-6 became the auction purchasers. The sale price was Rs. 393/1/- out of which Rs. 234/-and odd annas were paid by the plaintiffs and Rs. 158/- and odd annas were paid by the co-plain tiffs.
This roughly works out to the proportion of 9 1/2 as. and 6 1/2 as., as calculated by the two Courts below. In the superior interest, however, the shares of the parties were 4 as. and 2 as. which would give us the proportion 10 as. 13 1/2 gds. and 5 as. -- 6 1/2 gds., as claimed by the plaintiffs. The question is whether the claims of the above two sets of co-sharers landlords viz. the plaintiffs and the co-plaintiffs, in regard to the defendants' under raiyati of Rs. 32/1/- p. a., originally held under the raiyat Dayal, would be in the former proportion 9 1/2 as : 6 1/2 as. or in the latter proportion 10 as. 13 1/2 gds. : 5 as. 6 1/2 gds.
The Courts below have accepted the first set of figures viz. 9 1/2 as. and 6 1/2 as. and have rejected the plaintiff's claim of a higher share, namely, in the proportion of 10 as. -- 13 1/2 gds. and 5 as. -- 6 1/2 gds. The propriety of this decision is challenged in this appeal By the plaintiffs appellants.
3. The Courts below have relied on Section 45, Transfer of Property Act but the appellants con-tend that that section has no application to involuntary sales or transfers by operation of law. They further in their turn rely on Section 22(2), Bengal Tenancy Act.
4. After giving our best consideration to the appellants' arguments, we have eventually reached the same conclusion as the two Courts below. It is true that Section 45, Transfer of Property Act does not in terms apply but there can be no question that its principle applies to the present case. That is a principle, entirely consistent with justice, equity and good conscience, and we find no reason to refuse its application to the present case.
We are also of the view that Section 22 (2), Ben-gal Tenancy Act, or, rather, the relevant proviso thereof, does not affect the ultimate result. By their auction purchase, the plaintiffs and the co-plaintiffs certainly became entitled under the aforesaid proviso to hold the land, comprised in the holding of the original rayat Dayal Naskar, on payment of fair and equitable compensation for use and occupation to the other cosharer landlords, to be calculated on the basis of Dayal's rent at the time of sale. But that is of no help to the appellants.
The proviso is really against the appellants' contention. Strictly speaking, we are not in this case concerned with the conflict of judicial opinion on the question of the nature of the status of the acquiring co-sharer under the above proviso. Sub-section (2) of Section 22 is in the nature of an exception to the doctrine of merger as enunciated and incorporated in Sub-section (1) and the proviso to Sub-section (2) is also a part of that exception though in a modified form.
Sub-section (1) enacts complete merger, effacing the rayati altogether, subject only to rights of third parties. The main part of Sub-section (2) expressly sanctions acquisition of the occupancy raiyati by a co-sharer landlord and the proviso merely wipes off the raiyati, preserving at the same time a distinct entity in the shape of an interest in land, for which fair and equitable compensation for use and occupation is payable by the holder, that is, the acquiring cosharer landlord, to the other cosharer landlords. This, at least, implies that the holder cosharer landlord has the right to possess the land to the exclusion of the other cosharer landlords which obviously includes the exclusive right to receive rent from the under-raiyat.
It thus sufficiently Indicates the existence of a distinct and separate interest in between the original under-rayati and superior landlord's interest and, although, in law, the original under-raiyat may have accelerated his status and thus become a raiyat, the intermediate interest which separates him from the superior landlords, however uncertain or indefinite in nature, cannot altogether be ignored and must be recognised visa-vis both, namely, the original under-raiyat and the superior landlords, and the holders of this intermediate interest would not necessarily have shares therein in proportion to their interests in the superior right.
5. We do not, therefore, find any legitimate objection to the application of the principle, underlying Section 45, Transfer of Property Act, to determine the respective rights of the parties before us in the interest, acquired by them under their auction purchase which, in fhe absence of a contract to the contrary, ought to be in the proportion of their respective contributions in the purchase money. That is what has actually been done by the two Courts below and their decision must, therefore, the affirmed.
6. We have only to add tfiaf the present case is materially different from the one which came up before Roxburgh J, in 'Asad Ali v. Wa-hed Ali Hazi' : AIR1940Cal145 . That was a case under Sub-section (1) of Section 22, the purchase of the rayati having been made by all the co-sharers, though their contributions to tfie purchase money were different from their proportionate shares in the proprietary right. Roxburgh J. rightly applied Sub-section (1) and the Imperative application of, the law of merger, as enacted in that sub-section, left no room for any other proportion than what follows from the parties' respective interests in the proprietary right.
The present case is certainly not one under Sub-section (1), as, here, the purchase was made by some only of the co-sharer landlords. This is not disputed before us and, as a matter of fact, the appellants' argument has practically, been based only on Sub-section (2). ' : AIR1940Cal145 , therefore, is clearly distinguishable and it may safely be put aside.
7. In the above view of the matter we dismiss this appeal.
8. There will, however, be no order tot costs.
9. I agree.