1. This suit relates to an estate which is divided into a number of separate villages. The estate was settled about 70 years ago and at that time the revenue assessed on the predecessors of the defendants, whom we may call Sunagar, was fixed at Rs 991; while that assessed on the predecessors of the plaintiff, whom we may call Banaili, was fixed at Rs. 4,371, the total revenue of the whole estate which was a single estate being Rs. 5,365. Partition proceedings took place between Banaili and Sunagar and while they were still pending, this suit was brought by Banaili for a declaration that they owned certain shares specified in the schedule to the plaint in the different villages of the estate and that Sunagar also owned specified shares. The share claimed by Banaili in the two villages Madhubanx and Chhit Moranga was the entire 16-annas. The suit was dismissed by the Subordinate Judge and the plaintiff appeals to this Court.
2. The point in dispute is really a very short one and is simply this--whether the interest of Banaili in the estate is proportionate to their liability to the Government revenue, or is it the sum of their interests in the different villages of which the estate is made up?
3. That the interest of a proprietor in a joint e3tate may consist of specified parcels of land, and may, therefore, in the course of time bear no real proportion to the amount of Government revenue originally assessed on him is clear from Section 5 of the Estates Partition Act. It is not necessary for us in this case to consider whether the parties may or may not claim are distribution of the liability to Government revenue.
4. The Revenue Authorities seem to have concluded that Banaili's interest was proportionate to the liability to the Government revenue and accordingly they held that in making the partition, the two villages of Madhubani and Chhit Moranga, to which the plaintiffs alleged that they were exclusively entitled, had to be taken into consideration and inasmuch as, since the time of the Settlement, the assets of those villages had greatly increased, the Revenue authorities held that Sunagar was entitled to additional compensation in other villages, namely, Jagaiti and Parora, in order to make their share of the assets correspond to their interest in the estate as based on their liability to the Government revenue. The learned Subordinate Judge, however, came to the conclusion, if we understand his judgment aright, that the plaintiffs in this case were entitled to the interests in the several villages which they claimed but he held, first, that under Section 5, Clause (4) of the Estates Partition Act, the Revenue Authorities were right in taking the assets of Madhubani and Chhit Moranga into consideration, and secondly, that it was inequitable that the plaintiffs should have the benefit of the rise in assets of Madhubani and Chhit Moranga since the time of the Settlement.
5. It appears to us beyond doubt that the interests of the parties in the estate are the sums of their interests in the several villages of which the estate is made up.
6. The original Settlement is not on the record. A qabuliat is filed, but it is said to be a temporary ijara and not the qabuliat under which the estate is now held. That ijara showed that the several owners of the estate had specific shares in the several villages. This also appears from Register A of the Collectorate and finally it is proved that the predecessors of the defendants in 1877, 1881 and 1383 applied three times to the Col-lectorate Authorities for registration of their names or for the opening of a separate account and in all these petitions they stated perfectly clearly and distinctly that their interests consisted of specified shares in these several villages. On the other hand, Register D of the Collectorate is in favour of the defendants and they also put in a petition by the plaintiffs in which they admitted that Register D was correct. But apparently the Collector's principal interest in writing up this Register D was to record correctly the liability for the Government revenne. Now, there is no doubt that so far as the plaintiffs' present liability for the Government revenue is concerned, the Register is perfectly correct. As regards the petition of the plaintiffs, it appears that they were ordered on the 24th September 1903 to have Register D corrected so as to represent correctly what their shares in the estate were and this petition seems to have been put in in accordance with that order. In that petition the plaintiffs asserted quite distinctly that they were exclusively entitled to Madhubani and Chhit Moranga, but it is true that they stated that their interest in the whole estate as stated in Register D was correct. It does not appear to us that this was anything more than a misapprehension by the plaintiffs of what was by no means a very simple matter.
7. It has been argued on behalf of the defendants that the fact that the parties were in possession of specific shares of these various villages does not affect the question of joint title. It does not appear that any question of mere possession arises. The plaintiffs' case is that they have title to these specific shares of these several villages and, considering the whole evidence, we feel no doubt whatever that that has been made out.
8. Then, dealing with Section 5, Sub-section (4) of the Estates Partition Act, we think that the section has been misconstrued by the learned Subordinate Judge. It is perfectly clear that if Banaili were in possession of Madhubani and Chhit Moranga alone, they would be entitled under Clause (2) of that section to have those villages assigned to them, and the mere fact that by the increase of their value, their assets were Out of proportion to the Government revenue, would not prejudice them in any way or entitle the other landlords to compensation. It is, therefore, not reasonable to suppose that Sub-section (4) proceeds on quite a different principle and lays down that if a party to a partition owns some common land as well as separate land, the increase in value of his separate land entitles his co-sharers to compensation at his expense. The words of the sub-section are that on the partition, 'his assets shall bear the same proportion to the assets of the whole estate as his interest in all the land and undivided shares held by him bears to the aggregate interests of all the proprietors.' If the words 'his interest in all the land and undivided shares held by him' must necessarily mean an interest proportionate to his liability to the Government revenue, it is clear that the effect of this sub-section will be very different from that of Sub-section (2), but the words, in our opinion, should be construed as meaning the sum of his interests in the different portions of lands and shares in the estate. The sub-section is then brought into harmony with the rest of the section.
9. This view was not accepted by the Revenue Authority; but it seems that the appeal to the Board of Revenue failed to a great extent from want of evidence. The learned member in charge seems to have regarded Register D as being conclusive, or almost conclusive, authority. He refers to the fact that no copy of Register D had been filed. It doe3 not appear to have been brought to his notice that Register A was in the plaintiffs' favour. If that register had been relied on, it is not impossible that the plaintiffs would have succeeded before the Board of Revenue as they have, in our opinion, succeeded in this proceeding in establishing that their interest in this estate is the sum of their interests in the different villages of which the estate is composed.
10. That being so, the fact that Madhubani and Chhit Moranga have risen greatly in value since the time that the Settlement was made and the Government revenue assessed, does not entitle the defendants to any compensation because those two villages have been assigned in full to the plaintiffs. The interest of the defendants is also, in our opinion, the sum of their interests in the specific villages and is not, in the present moment, at all proportionate to their liability to Government revenue.
11. The learned Subordinate Judge has dismissed the suit on the ground that it is not maintainable and that it is barred by Section 42 of the Specific Relief Act. We regret that we are unable to follow his reasoning on this point. He draws a distinction between a suit for a declaration of the plaintiffs' shares and a suit for a declaration of their interest, which we are unable to appreciate. Sections 26 and 27 of the Estates Partition Act recognise a suit for declaration of interest. We do not see what other relief the plaintiffs could have sued for. They could not ask the Civil Court to issue any order to the Collector. All that they prayed for was that the extent of their interest might be declared. It appears to us that they are entitled to the declaration that they seek, namely, a declaration that they are entitled to shares in the various villages in accordance with the schedule attached to the plaint, which implies a declaration that the defendants are not entitled to that extent of interests in villages Jagaili and Parora which corresponds to the assets of Rs. 235 awarded them by the Partition Authorities. We cannot, of course, issue any direction to the Partition Authorities.
12. If the date specified in the notice served under Section 94 has arrived, Section 27 will apply to this decree and it will be open to the plaintiffs to execute it under the last paragraph of that section. If no such date has arrived, Section 26 will apply and the. plaintiff will be entitled to apply under that section. The appeal will accordingly be allowed. The plaintiffs will get a decree declaring that their interest in the estate is the sum of their interests in the different villages as specified in the schedule to the plaint; they will be entitled to their costs of both Courts.