1. The plaintiff No. 1 is the auction-purchaser at a rent sale in respect of a patni taluq of 8-annas 1-ganda share in Taluqa Jibba Kata Gheringaon. The plaintiff No. 2 was said to be the real purchaser, plaintiff No. 1 being his servant and benamidar. It was owing to an objection made by the defendants that they became joint plaintiffs. It has been held that the benami has not been proyed: this finding has been very strongly impeached before us, but the finding' is one of fact, however unsatisfactorily it may have been arrived at.
2. The defendants first party are the cultivating raiyats and defendants second party, holders of an intermediate tenure said to have been annulled by the plaintiff No. 1 under Section 167 of the Bengal Tenancy Act.
3. The plea of the defendants first party was, amongst other things, that they had paid the rent to their landlords, the defendants second party, and the relation of landlord and tenant did not exist as between themselves and the plaintiffs.
4. The defendants second party pleaded that they had a permanent malguzari, right granted by the 16-anna proprietors more than 200 years ago in the time of their ancestors and that although the mokarari right granted by the defaulting patnidar in a recent year might have been annulled, the malguzari right could not be and had not been annulled.
5. The main Question in the appeal is whether the malguzari right of defendants second party merged in the mokarari right granted by the defaulting patnidar and has been annulled with the mokarari by the service of notice under Section 167 of the Bengal Tenancy Act.
6. The Court of first instance held that as the malgnzari interest exisisted long before the creation of the patni, it was not an incumbrance within the meaning of Section 161 and had not been annulled by the sale of the patni and the notice under Section 167.
7. The learned District Judge has upset that decision on the ground that the malguzari interest had merged into the mokarari interest and the annulment of the mokarari was sufficient for the destruction of the rights of the defendants second party. The learned Judge thinks that Section 111(d) of the Transfer of Property Act had the effect of merging the malguzari right in mokarari right and even if the Transfer of Property Act had no application the law of merger applied on general principles and there was a welding of the two rights in one. The correctness of the judgment of the learned Judge has been impeached on various points, but it will be sufficient to deal with the question of merger alone.
8. The mokarari patta granted by the patnidars to the defendants second party is to the effect that you have been in possession from a very ancient time--from the time of your ancestors of a malguzari right &c.;,...now at your desire we give you a mokarari etc....,' so that the ancient malguzari rights are recited as existing when the mokarari was given. The defendant in his deposition says, he paid a nazrana and had the malguzari made (sic) i.e., not liable to enhancement. Neither the document nor the deposition shows that any subsisting right was given up. It is probable that the incidents of the ancient malguzari right were questioned by the patnidar who demanded enhancement and some nazrana was paid to stop all future claims for enhancement. Supposing that the Transfer of Property Act was applicable to the case, let ns see how it favours the case for the plaintiffs. Section 111(d) is: 'A lease of immoveable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right.' The lessors of defendants second party were the zemindars of 16-annas: the patnidar was lessee under an 8as. 1g. malik. Supposing that the patnidar could be taken as the lessor of the defendant second party to the extent of 8as, 1g. the entire interest of the patnidars did not come into the hands of defendant second party, but says the learned District Judge that the patnidar gave the mokarari and the mokarari and the pre-existing malguzari came into the same hands. In the first place, that would not bean union of the entire interests of the lessor and the lessee in the same hands and in the second place, the union would not be in the same right. The difference obviously is that the malguzari was granted by the zemindars and would last as long as the zemindari lasted, but the mokarari was granted by the patnidars and would last as long as the patni lasted. Those two rights could not possibly coincide all along their length and breadth: Section 111(d) would not, therefore, do. The only other provision of the Transfer of Property Act that might he referred to was Section 111(f). That has not, however, been relied on, obviously on good grounds: that Clause is: 'A lease of immoveable property determines...(f) by implied surrender' and the illustration is--A lessee accepts from his lessor a new lease of the property leased to take effect during the continuance of the existing lease. This is an implied surrender of the fromer lease and such lease determines thereupon. The same considerations that apply to Section 111(d) seem to apply here also: the two leases are not conterminous, the lessors of the two leases have different rights the leases have different lives although some part of their existence might be co-existent. The Transfer of Property Act therefore, does not help the plaintiff.
9. The English doctrine of merger in Common haw has been broken in upon by various Statutes from time to time in England, and I think it has never been held that the law in its entirety is applicable to land tenures in India. On the other hand very eminent Judges have doubled that it does. In the case of Woomesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15 Sir Barnes Peacock said, my own impression is that the doctrine of merger does not apply to lands in the maffusil.' In the case of Jibanti Nath Khan v. Gokool Chunder Chowdhury 19 C. 766 (Pigot and Banerjee, JJ.) it was said: No authority has been shown us for holding that the doctrine of merger applies to such cases as this in India, that is that a patni interest must merge in the zemindari interest if they come into the same hands and we do not think that we should, for the first time, so fur as we are n ware, apply the doctrine to such a case.' Then in the recent case Lal Mahomed Sarlar v. Jagir Sheik Mallik 2 Ind. Cus. 654 : 13 O.W.N. 913 (Sir Lawrence Jenkins, C.J., and Mookerji, J.) the learned Chief Justice said: 'It is at least doubtful whether the doctrine of merger applies to lands in the Moffusil.' Reliance is placed, however, on several other cases which it is said help the plaintiffs and on some of which the learned District Judge has relied in this case. The mainspring of these later cases seems to he the decision of the Privy Council in the case of Raja Kishen Datt Raw. v. Rajah Mumtaz Ali Khan 5 C. 108 : C.L.R. 213 : 5 I.A. 115 : 1 Sur. P.C. J. 17 : 3 Suth. P.C.J. 637 : Ralique and Jackson's P.C. No. 58 : Ind. Jur. 426 : 2 Shome L.R. 1. That was a case in which the mortgagee acquired certain birt-tenners existing within the mortgage taluq on very favourable terms and treated them as merged in the taluq: the mortgagor was allowed to redeem the whole taluq including the birts on paying the mortgage-money and the purchase money of the birts as compensation. This case was decided on the ground that the mortgagee had taken advantage of his position as such to acquire the birts upon very inadequate consideration and not treated the birts as surviving. If the case had been decided on the ground of merger, the mortgagor would not have been compelled to pay the purchase-money paid by the mortgagee as a condition precedent to the redemption. Their Lordships made a remark: 'Had they (the purchases of the birts) been made by or on behalf of a talukdar holding under tin absolute, as distinguished from a mortgage, title, the tenures would, as a matter of course, hate merged in the taluq.'
10. In the case of Promotho Nath Mitter v. Kali Prasanna Chowdhry 28 C. 744 Maclean, C.J. and Banerjee, J. held that when a patni interest created after the Transfer of Properly Act is purchased by the zemindar, the patni merges in the zemiadari under Section 111(d) of the Transfer of Property Act. Mr. Justice Banerjee, who was a party to the case of Jibanti Nath Khan v. Gokool Chunder Chowdhury 19 C. 760 explains the distinction by saying that no reference was made to the 'Transfer of Property Act in that case. In the case of Surja Narain Mandal v. Nanda Lal Sinha 33 C. 1212 reference was no doubt made to the remarks of the Privy Council in the case of Raja Kishen Datt Ram v. Rajah Mumtaz Ali Khan 5 C. 108 : C.L.R. 213 : 5 I.A. 115 : 1 Sur. P.C. J. 17 : 3 Suth. P.C.J. 637 : Ralique and Jackson's P.C. No. 58 : Ind. Jur. 426 : 2 Shome L.R. 1 but the case was decided on the ground that the ground that the aequisition by the mortgagor enured to the benefit of the mortgagee and enhanced his security. In the case of Ulfat Hossain v. Gayani Dass 3 Ind. Cas. 994 : 36 C. 802 (Stephen and Vincent, JJ.) the proprietary and the mokarari interests were both purchased by one person. All these cases are clearly distinguishable from the present. In all these cases the interests of the lessor and the lessee came into the same hands and apart from the application of Section 111(d) of the Transfer of. Property Act, there was no equitable consideration to prevent the merging of the rights.
11. In the present case, however, as I have shown the provisions of Section 111 of the Transfer of Property Act do not apply and there is no equitable consideration which attracts the application of the doctrine of merger.
12. Mr. Foa, in his book on the Law of Landlord and Tenant, says: 'In deciding whether there is a merger in equity what must be first looked at is the intention of the parries and if that be not expressed, then the Court looks to the benefit of the person in whom the interests coalesce.' Foa, 5th Edition, page 629. This doctrine of benefit was laid down by the Judicial Committee of the Privy Council in the case of Gokal Das Gopal Das v. Puran Mal Premusukh Das 10 C. 1035 : II I.A. 126 : 8 Ind. Jur. 396 : 4 Sar. P.C.J. 513: 'The obvious question to ask in the interests of justice, equity and good conscience is, what was the intention of the party paying off the charger he had a right to extinguish it and a right to keep it alive. What was his intention? If there is no express evidence of it, what intention should be ascribed to him? The ordinary rule is that a man having a right to act in either of two ways shall be assumed to haves acted according to his interest.' Here there is no express evidence that the defendant second party intended to give up the ancient malguzari right. It must be assumed, therefore, that he intended to keep it, and if he did, the annulment of the subsequent mokarari cannot destroy the pre-existing malguzari right. In this view of the case I set aside the decree of the District Judge and restore that of the Munsif with costs in all Courts. The learned Vakil for the respondents says that the appeals other than No. 1693 have been settled; the learned Vakil for the appellants says he has no instructions on the point. If they have been settled, well and good; if not, they will be decreed with costs.