Hirday Narain Singh and Others vs Kali Charan Singh and Others

Dawson Miller, C.J.—The plaintiffs in this case sued for a declaration of their title to, and for possession of, two plots of land including a dwelling house and an orchard measuring together between 6 and 7 kathas of land. Their case was that they purchased the property from Babu Sri Narain, the defendant No. 1 in the suit, with whom his sons have also been impleaded as defendants, being members of a joint family. It appears that in the year 1915 Sri Narain was the proprietor of a four-annas share in Mauza Chak Sikandra Sayedpur otherwise known as Mian Chak, Touzi No. 3803 in the Collector''s roll. Within that share was the land in question. The plaintiffs, after their purchase in 1915, took possession of the four-annas share as proprietors but they did not get actual possession of these two plots which are the subject of the present suit. Within 12 years, however, they have sued for possession and for a declaration of their title relying upon the sale of 1915.

Although various defences were raised in the suit all of which were decided against the defendants in both the lower Courts, the only question with which we are concerned in this second appeal is one of merger It was contended by the defendants that the property in suit was subject to a leasehold interest held by them and that the right to direct possession had not passed to the plaintiffs in 1915 by the transfer of the proprietary interest. Their case was that the leasehold interest never became merged in the proprietary interest and remained with the vendor. The plaintiffs, on the other hand, contended that although there had been originally a lease-hold interest of this particular property, it had in fact became merged in the proprietary interest in the time of Sri ''Narain''s father, Gopi Lal. This question IS ONE which had to be considered both in the trial Court and in the lower Appellate Court and in both those Courts it was found that the leasehold interest of this house and orchard had become merged in the proprietary interest of Gopi Lal before the defendant Sri Narain acquired by partition his four annas share in the estate. It appears'' that Gopi Lal during his lifetime, being the sixteen annas proprietor of the mauza in question, purchased from the then tenant his leasehold interest in the two plots in suit and subsequently upon Gopi''s death these two plots fell to the share of Sri Narain upon partition between him and his brothers.

The point raised in the lower Courts was that Gopi Lal at the time of his purchase of the house and orchard from the tenant was not in fact the sixteen annas proprietor but had a share only, amounting to fourteen annas, and, therefore, if he acquired an interest as a co-sharer proprietor, then u/s 22, Sub-section (2) of the Bengal Tenancy Act the interest did not become entirely merged in the larger proprietary (interest "but continued alive, the proprietor having the use and occupation and paying rent to his co-sharers according to their proportion, and that after his death when his son, acquired the four annas share in his interest including these two plots the same state of affairs continued and, therefore, the transfer of the proprietary interest did not transfer the leasehold interest. That was the only point which was raised in the lower Courts with regard to this part of the case. Both the lower Courts found that in fact Gopi Lal was the sixteen annas proprietor when he purchased the interest in the orchard and the house, and, therefore, the case fell within Sub-section (1) and not Sub-section (2) of Section 22 of the Bengal Tenancy Act and hence the leasehold interest became merged in the proprietary interest.

On second appeal to this Court a new point has been raised which was not taken in either of the lower Courts. It is contended to-day for the first time that this orchard and house'' were not in fact agricultural land and were not governed by the Bengal Tenancy Act but by the Transfer of Property Act and, therefore, in considering the question of merger it is contended that we must apply the general doctrine of merger as it prevails according to the English Law as administered in this can. try and we must see whether at the time of the transaction whereby Gopi Lal acquired this interest, there was any intention on the part of the purchaser to keep alive the subordinate interest. In support of that proposition we have been referred to the decision of the Privy Council in the case of Dulhin Lachhanbati Kumri v. Bodnath Tiwari 66 Ind. Cas. 551 : 26 C.W.N. 565 : (1922) M.W. N. 58 : 15 L.W. 343 : 30 M.L.T. 216 : 3 P.L.T. 383 : 4 U.P.L.R. (P.C.) 42 : AIR 1922 P.C. 94 : 48 I.A. 483 (P.C.). That case was one which dealt with the general law of merger in the mofussil before the Transfer of Property Act came into force in 1882 and has nothing whatever to do with the law as it now exists under that Act. The law that we have to apply if the case is not governed by the Bengal Tenancy Act is the law laid down in Section III of the Transfer of Property Act. It is interesting to notice that under that Act there are two sections which deal with matters of this sort. The first is Section 101 which provides for the case where the owner of a charge or other incumbrance on Immovable property is or becomes absolutely entitled to that property and the section provides that the charge or incumbrance shall be extinguished unless he declares, by express words or necessary implication, that it shall continue to subsist, or such continuance would be for his benefit. When we come, however, to the acquisition of a leasehold interest by the lessor Section III applies and it will be noticed that in that section there is no reference whatever to any declaration either express or by implication, or to the case where the continuance of the interest would be for the benefit of the person acquiring. By Section III Clause (d) it is provided that a lease of Immovable 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. Now that to my mind is a very clear exposition of the law on the subject and applies absolutely to the present case where the proprietor purchases the inferior right of his lessee. In such a case the transaction comes directly within the four corners of Section III Clause (d). Therefore it does not make any difference whether the property is governed by Section 22, Sub-section (1) of the Bengal Tenancy Act or by Section III (d) of the Transfer of Property Act. In either case it is clearly provided that the inferior interest shall merge in that of the superior interest.

In my opinion, therefore, this appeal must be dismissed with costs.

Mullick, J.

I agree.