1. This appeal arises out of a suit for a declaration of certain rights in, and for partition of, two tracts of jungle situated in Gadi Domechanch in the District of Hazaribagh. Tekait Churaman Singh was a former proprietor of the Gadi. He was succeeded by his son Tekait Tohal Ram Singh who was succeeded by his uncle Tekait Maharaj Singh, since deceased. The defendant No. 3 is the son of Maharaj Singh and is the present Tekait of the Gadi. Defendant No. 1 is a bybil-wafadar or mortgagee from the latter under a mortgage executed sometime in 1901. Tekait Maharaj Singh, the father of defendant No. 3 being desirous that the plaintiff should ' pass her life with comfort, honour and power ' granted to her by a khorposh sanad bearing date the 6th December 1894, two mouzasj Raidih and Kusabana, ten bighas of paddy land, and half the income of jungle collections from bankar mahsul and half the price of wood in Gadi Domechanch for her life by way of maintenance. Since the date of this grant the plaintiff has been and is now in possession of these two mouzas and the paddy land and was in receipt and enjoyment of the jungle collections until 1904 when, in consequence of certain disputes between her and defendant No. 1 concerning the right to cut sakua trees from the jungles in suit, a proceeding was held under Section 145 of the Criminal Procedure Code and the jungles were placed under attachment by the order of the Criminal Court. The plaintiff has, therefore, brought this suit asking for a declaration that she is entitled to sell sakua trees from the jungles in suit and to realise half the proceeds thereof; and also for partition of the jungles by division into two equal parts.
2. The defendant No. 1, who alone contested-the suit, averred that by the khorposh sanad, the plaintiff is only entitled to realise bankar mahsul in respect of such wood only as is not Valuable, and is only used for fuel, and that she can also receive half the sale-proceeds of such valuable trees that dry up and fall by themselves, but that she had no power to destroy the jungle. The defendant No. 3 supported the plaintiff. Upon these pleadings the two cardinal points for decision were embodied in issue No. 5: What are the rights of the plaintiff in the jungles in suit? And in issue No. 4 : Is the plaintiff entitled to have the jungles partitioned out?
3. The Court below has held that the plaintiff is entitled to collect half the bankar mahsul and half the tolls levied on the manufacture of catechu and the rearing of silk cocoons, as also, some other minor profits; and further that the plaintiff is entitled to cut or to have cut and to sell sakua and other trees of the jungles in suit and that the defendant is likewise entitled to exercise the same right of cutting and selling similar trees of the jungles; and in order that these rights may be effectually exercised and that the parties may peacefully exercise these rights in the future, the Court below has directed a partition of the jungles. The Subordinate Judge has proceeded to make a further declaration that the rights of the plaintiff and defendant No. 1, in these jungles are subject to the customary rights therein of the different classes of raiyats of Gadi Domechanch.
4. The defendant No. 1 has appealed, and, on his behalf four contentions have been raised : (1) that the declaration of certain rights in favour of the different classes of raiyats of Domechanch, they being no parties to the suit, was in error, (2) that the plaintiff is not entitled to cut any of the jungles but only to receive from defendant No. 1 half the proceeds from the sale of trees that may be cut and sold by, or at the instance of defendant No. 1, (3) that the plaintiff is not entitled to any portion of the tolls levied on the manufacture of catechu and the rearing of silk cocoons, and (4) that the plaintiff is not entitled to any decree for partition.
5. We are clearly of opinion that the first of these contentions is ' right. As the raiyats of Gadi Domechanch are not parties to the present suit, and no claim was set up on their behalf in the present suit, and inasmuch as no issues were raised in regard to it, we think the lower Court was not justified in making any declarations in their favour.
6. The determination of the questions involved in the second and third contentions, turns upon the construction of the khorposh sanad, dated the 6th December 1894.
7. The sources of income derived from the jungles consist of (1) bun bankar mahsul or a toll of 12 annas per cart or plough per year on villages for taking wood other than sakua for fuel; (2) proceeds of sale of sakua wood for house-building and other purposes, and (3) tolls on the manufacture of catechu and the rearing of silk cocoons. The Subordinate Judge has found that the total yearly income from the sale of wood from the jungles in suit is Rs. 500, and that the catechu and cocoon industries are so limited that a profit of Rs. 5 or Rs. 10 only is derived from them at intervals of 2 or 3 years.
8. The material words of the sanad bearing upon the present questions are 'that she ' i.e., the plaintiff ' during her life-time shall have full rights and powers as owner of holding possession, making settlement and of making collections from the properties mentioned below.' These properties as specified are mouzas Raidih and Kusabana together with 16 bighas of rice land within certain bound-aries. Then follow the words around which the discussion at the bar has chiefly centered. They are : half the income of jungle collection from bankar mahsul and half the price wood (lakri) in Domechanch are granted to her.' In construing those terms regard must be had to the different kinds of collections that were made or, in other words, the different sources from which income used to be derived by the grantor at the time of the grant. The income derived from bankar mahsul or the sale of wood for fuel and from the sale of sakua trees (which it may be mentioned in passing are so thin that their price is Re. 1 per ten pairs, i.e., 3 pice per tree) for building, and other purposes, was at the time of the grant and is now, as we have already pointed out, the principal item of income. The tollage on the catechu and the cocoon industries was at that time and is now very small indeed. It seems clear that by the words in question the grantor intended to assign to the plaintiff all these sources of income from the jungles. In the absence of any express reservation in this grant of any particular sources of income, and regard being had to the small income derived from the catechu and cocoon industries, we are of opinion that the latter sources of income were also intended to be assigned to her. It has been suggested that the cocoon industry may possibly, in the hands of more enterprising persons like the defendant No. I, admit of considerable development and a much larger income may be derived from that source. We think, however, that, in ascertaining the real intentions of the grantors in making this grant, we ought not to take such a contingency into account. The only reasonable mode of ascertaining such intentions, where the words are not unambiguous, is to interpret them in the light of the circumstances existing at the date of the grant and of the subsequent conduct of the parties. It is common ground that ever since the date of the grant, the plaintiff has been in the receipt and enjoyment of all sources of income derived from the jungles including the tolls from the catechu and the cocoon industries. It may be that in the future the plaintiff may, derive a larger income from this source, but that is no reason why, if the grantor intended to assign to her this item of income, she should; not have the benefit of any improvement in that income. At the same time we are clearly of opinion that the grantor did not by the words, we) have quoted, intend to grant to her the right to take mica or any other underground minerals.
9. The principal contention raised before us on behalf of the appellant is embodied in the fourth and the last point, namely, that the plaintiff is not entitled to a decree for partition. This Contention has been rested on two grounds, first, that the words in question do not create in favour of the grantee any interest in the land, but that they merely confer on her a right to receive from the grantor as her successor in interest a share of the income from the jungles which may be collected by him, and secondly, assuming that the words do create an interest in land, if the grantee, who has an interest for life only, were permitted to cut trees on the jungles she might do so to such an unlimited extent that it might possibly lead to the destruction of the corpus, i.e., the inheritance to which the grantor or his succession-in-interest is entitled after the determination of the life-estate.
10. As to the first of these grounds, we think the words used are sufficient to create an interest in land. A grant of income or of rents and profits derived from a jungle conveys, in our opinion, an interest in land. What the measure Of such interest in any particular case may be, and whether it entitles the grantee to enjoy the income merely for life or to deal with the corpus depends upon the nature and duration of the grant. If a stranger were to trespass upon the jungles and cut and carry away some trees from it, it would be the grantee for life of the income from the jungle and not the reversioner or the remainder-man who would have the right to sue for damages for such trespass, and this is so because the possession of the' jungle is in him and the trespass is an infringement of his possessory right in the land. Such possessory right is, in our opinion, an interest in the land. Regard being had to the nature of the recitals and the operative words in the deed, we do not think that Tekait Maharaj Singh intended to create in favour of the widow of the last occupant of the Gradi, a right to a mere pecuniary allowance, (which if the appellant's contention is right, it would be) such allowance consisting not of any fixed sum but fluctuating in amount according to the arbitrary will of the grantor or perhaps amounting, to nothing in any particular year if he only chose not to realise any income from the jungles.
11. As to the second ground, we think that it is equally untenable. It seems to us that if there existed any real possibility of the corpus being destroyed by the supposed deforestation, of the jungles, it would afford an argument not for withholding possession from the grantee or for denying partition, but for holding the grant to be void on the ground of its apparent unreasonableness. The cases of Dashwood v. Magniac (1891) L.R. 3 Ch. 306 and Honywood v. Honywood L.R. 3 Eq. 309 however, go to show that grants of life-estates in what are called ' timber estates ' and ' mineral estates ' are unquestionably valid in law. Besides, it would appear from a careful examination of the nature of the subject-matter of the grant that there is no foundation for such a supposition. The periodical cropping of underwood for purposes of fuel and trees in the disputed and neighbouring jungles soon as they attain the size and dimension necessary to make them fit for house building and for other purposes in these rural localities is necessary not only to realise an income from them but also to make room for the development of other trees in the same jungle. During the time of the previous proprietors of the Gadi, such periodical croppings and sales of wood have been the customary mode in which the jungles have long been enjoyed. If by overcropping; these jungles are destroyed in any year, several years would have to elapse before they could yield any further income. It is obvious that self-interest alone would prevent such a suicidal policy. Moreover, the practice in these jungles has been for the buyers themselves to cut the required number of trees on prepayment of price. To suppose an unlimited cutting down of trees is to suppose an unlimited demand for them, of which there is no foundation whatever in the evidence.
12. If at any time the plaintiff cut down the trees in the jungles to such an extent as to create a reasonable apprehension of wanton destruction of the jungles, the law provides ample means by which the defendant No. 1 can protect his interest, namely, by a suit for an injunction.
13. The essence of the right of a co-owner to enforce partition of joint property, as pithily put by Domat, is that it would be contrary to good manners that the proprietors should be forced to have always an occasion falling out, by reason of the undivided possession of a common thing; ' Civil Law, Pt. 1, Bk. II, Tit. V. para. 11. Hence, neither mere difficulty in making a division of property, nor inconvenience, nor pecuniary loss, likely to be produced by the division will suffice to bar such a right. See Freeman on Co-tenancy and Partition paragraphs 433, 438; see also Mayfair Property Company v. Johnston (1894) L.R. 1 Ch. 508 where the earlier cases are reviewed. In Parkar v. Gerard (1754) Amb. 236 the report, which is very short, contains this passage : ' On a bill for partition, Sir Thomas Clarke, M.R. said that such a bill is a matter of right, and there is no instance of not succeeding in it.' In Sundar v. Parbati 12 A. 51 : 16 I.A. 186 their Lordships of the Privy Council observed : ' It is impossible to hold that a joint. estate is not partible.'
14. Nor is the fact, that the co-owner who asks for partition is a life-tenant and not an absolute owner, any ground for refusing partition Hobson v. Sherwood (1841) 4 Beav. 184 . It is settled law that co-owners of limited and qualified estates under the Hindu Law, such as Hindu widows and daughters are entitled to enforce partition inter se of joint property [Janoki Nath Mukhopadhya v. Mathura Nath Mukhopadhya 9 C. 580 (F.B.); Gajapathi Nilamani v. Gajapathi Radhahamani 1 M. 290 : 10. L.R. 97 : 4 I.A. 212; Bepin-Behari Moduck v. Lalmohun Chattopadhya 12 C. 209; Musammat Dal Koer v. Musammat Panbas Koer 8 C.W.N. 658; Durga Nath Pramanik v. Chintamoni Dassi 31 C. 214; Ramakal v. Ramasami Naickan 22 M. 522. Of course, the right to partition in such cases is not, as laid down by the Privy Council in Sri Gajapaty Nilamani Pattumohadevi v. Sri Gajapaty Radhamoni Pattumohadevi 1 M. 290 : 10. L.R. 97 : 4 I.A. 212 a right to enforce absolute partition,' partition, in the popular sense of the term, but a right to have an arrangement for separate possession and enjoyment of the respective shares, of the co-owners, the nature and duration of such 'separate possession and enjoyment' depending on the nature and duration of the limited interest.
15. The result, therefore, is that the decree of the Court below, in so far as it qualifies the rights of the plaintiff and defendant No. 1 by declaring them to be subject to certain customary rights of the different classes of raiyats of Gadi Domechanch, must be set aside, and we direct that such qualification (be expunged from the decree; we further direct that the decree of the Court below be varied by adding a declaration that the plaintiff is not entitled to take mica or any other un-derground minerals from the jungle. In all other respects the decree of the Court below is affirmed and this appeal dismissed with costs.