Imambandi Begum vs Kamleswari Pershad

R. Couch, J. 1. By a lease, dated the 1st of March 1866, made by Tasud-duok Hossein Khan, one of the two brothers of Mussummat Fatima Begum, alias Nawab Bahu Begum, deceased, who it is stated in the lease died, leaving a share of 6 annas 12 dams of another share of 15 annas 6 dams of certain mouzas therein named, and a share of 4 annas out of another share of 15 annas 6 dams in other mouzas also named, one half of which devolved on Tasudduck Hossein, and the other half on his brother. Mirza Mahomed Taki Khan, Tasudduck Hossein granted in mokurari (perpetual) lease his half- share, viz., 3 annas 6 dams of the shares of Bahu Begum in the mouzas, with the exception of those which are said to have been sold during her lifetime in execution of a decree, on receipt of Rs. 4,630 as nazrana (premium), and at a fixed annual rent of Rs. 2,912-11-9 (out of which Rs. 2,828-11-9 were to be paid as Government revenue of the mouzas, and Rs. 84 as the lessor''s profits), to Syed Jaffer Ali. The lease contained the following passage :" It is required that the said mokurari-holder should remain in possession of the aforesaid shares of the abovenamed mouzas, and out of the aforesaid fixed amount of rental continue to pay Rs. 2,828-11-9 in the treasury of the Collector of Monghyr, and the remaining Rs. 84, my reserved rent, to me the declarant, instalment by instalment." 2. On the 6th of April 1866 Mirza Mahomed Taki Khan, the other brother, made a similar lease of his 3 annas 6 dams share on receipt of a nazrana of Rs. 2,911 at an annual rent of Rs. 2,888-11-9, out of which Rs. 2,828-1.1-9 were to be paid as Collectorate revenue of the mouzas, and Rs. 60 as reserved rent to Mussummat Nazirunnissa. This lease contained a similar passage as to possession and payment of the Government revenue and rent. 3. On the 13th June 1875 the respondent''s father Babu Ram Pershad bought the entire mehal of Bisthazari, of which the leased shares of the mouzas were parts, at an auction sale for arrears of Government revenue, and by the terms of Section 54 of Act XI of 1859, entitled: "An Act to improve the law relating to sales of land for arrears of revenue," he acquired the mehal, subject to all incumbranees, and with only the rights which were possessed by the previous owner or owners. Syed Jaffer Ali and Mussummat Nazirunnissa were servants of the appellant Imambandi Begum and the leases were made to her in their names. 4. Disputes arose between Imambandi Begum and Ram Pershad, and in 1878. She brought a suit against him and others to establish her rights to the shares in the mouzas comprised in the leases, of part of which shares she said she was absolutely dispossessed, and of the other part that Ram Pershad had denied her mokurari right. The facts of the case were very complicated, the question being what were the shares of Bahu Begum and the other defendants in the mouzas. Judgment was given by the Subordinate Judge on the 15th August 1880. One of the issues settled was whether the grantors of the moku-raris to the plaintiff, or the plaintiff herself, held possession of the disputed shares within twelve years before the institution of the suit, or had been out of possession for upwards of twelve years. The finding of the Subordinate Judge upon this issue was against the plaintiff, and he dismissed the suit. Imambandi appealed to the High Court. One of the Judges of that Court found that within twelve years next before the institution of the suit the plaintiff herself and her lessors were in possession of the disputed property. The other Judge said that Bahu Begum and after her brothers were certainly in possession as late as April 1866. The first lease is dated the 1st March 1866 and the second lease the 6th April 1866. The suit was commenced on the 28th February 1878, just within the twelve years allowed by the law of limitation. Their Lordships think that it must be taken as a fact that Imambandi did not enter into possession under the mokuraris. The High Court found that the share of Taki and Tasudduck Hossein, which they derived from Bahu Begum, was at best one-quarter of her husband''s estate of 6 annas 12 dams, from which 1 anna sold by Bahu Begum should be deducted, leaving 13 dams in respect of some of the villages; that the share was further reduced in respect of some villages by a decree for 7 dams in favour of another person, and there remained a share of 1l 1/4 dams in those villages. The Court also said that the plaintiff having caused a certain number of the villages covered by her leases to be sold on the 30th January 1868 she could not claim to hold them as lessee, and the suit must be dismissed as to them. Then it was said by the Court that if in execution of the decree the plaintiff elected to recover possession of the aforesaid shares, she would be bound to pay annually Rs. 5,801-7-6, the mokurari rent reserved in the mokurari pottas, and the decree was so made. 5. Imambandi appealed to Her Majesty in Council against this decree. Upon the argument of the appeal before this Committee their Lordships were of opinion that the decree of the High Court should be affirmed with two exceptions, viz., that the 1 anna share should not be deducted from the one-fourth share, and that the condition that Imambandi would be bound to pay the whole of the rent reserved by the mokurari pottas should be omitted from the decree, leaving the liability for rent to be determined thereafter, if it should become necessary, as the question whether the rent should be apportioned or not did not appear to have been raised and ought not to be decided in that suit. The decree of the High Court was accordingly by Her Majesty''s Order in Council varied to that effect, and in other respects was affirmed. Earn Pershad having died, his son Kamleswari Pershad was made respondent in his place. Possession of what was decreed was given to Imambandi (between the 18th June and the 13th July 1887). 6. On the 28th May 1888 Imambandi brought a suit against Kamleswari Pershad in the Court of the Additional Subordinate Judge of Monghyr to recover Rs. 14,693-2-7 as mesne profits for three years of the share of which she had been decreed possession, her claim to mesne profits for a longer period being barred by the law of limitation. Kamleswari Pershad in his written statement claimed to set-off against the plaintiff''s claim the whole rent reserved by the mokurari leases for the three years, his claim to rent beyond that period being also barred. And on the 30th July 1888 he brought a suit against Imambandi in which he claimed payment of the full amount of the rent so reserved. Imambandi by her written statement offered to pay such an amount of the rent reserved as was proportionate to the share of which she had obtained possession. The suits were heard together, and on the 20th May 1889. the Additional Subordinate Judge gave judgment in them. Upon the issue as to set-off he found that Imatnbandi was entitled to an apportionment of rent, the annual amount of which he fixed at Rs. 1,227-12-2 1/2, and deducting that amount for three years with interest from the mesne profits allowed, he gave a decree in favour of imambandi for Rs. 10,126-7 with interest. In the suit by the respondent he awarded an annual rent of Rs. 1,243-1-10. The difference between that and the amount fixed in the other suit is not explained. Kamleswari Pershad appealed in both suits to the High Court, which gave judgment on the 9th June 1891. On all the points raised except the question of apportionment the two Judges agreed with the lower Court. On that point they differed, the senior Judge being in favour of apportionment and the junior against it. The matter was accordingly referred to the Chief Justice to be decided according to Section 575 of the Civil Procedure Code. The Chief Justice agreed with the junior Judge. Imambandi''s suit was dismissed with costs, and in the suit of Kamleswari Pershad it was declared that Imambandi should pay the full sum of Rs. 5,801-7-6 reserved by the leases. The reference under Section 575 being only allowed on a point of law, if two or more Judges differ upon a question of fact the decree appealed against is to be affirmed. Therefore in this case the facts must be taken according to the findings in the judgment of the Subordinate Judge. 7. Imambandi has appealed to Her Majesty in Council against the decision of the High Court, and the question to be determined is whether the rents reserved by the mokurari leases should be apportioned. As Imambandi did not prove that she entered into possession under the leases and was then dispossessed, there was not an eviction in the proper sense of the word. But when Imambandi was obliged to bring a suit to obtain possession, and succeeded in obtaining only a part of what was granted in mokurari, and was precluded by the result of the suit from having possession of a substantial and the larger part, she was in a similar position to having been evicted from that part, and there is the same equity for an apportionment as in a case of eviction. Indeed this was not disputed by the learned Counsel for the respondent. It was submitted to their Lordships that Imambandi knew that the lessors were not entitled to the whole of the shares leased, and a paragraph in the respondent''s written statement in the first suit was referred to. In that he said that though the extent of the share in the leases was ostensibly 6 annas 12 dams the rent was fixed in consideration of a one-fourth share, No such question as this was raised by the issues in either of the suits, nor apparently was any evidence offered upon it. The Subordinate Judge says in his judgment: "It is contended by Kamleswari that the plaintiff took the mokurari knowing that the lessors, i.e., the two brothers of Bahu Begum, had only a one-fourth share in the disputed properties; but that assertion is not supported by any evidence. On the other hand, we find that Bahu Bagum, the wife of Abdur Rahman, was considered in documents the sole owner of the properties; and after the death of Bahu Begum, her two brothers obtained two certificates * * * for collecting her debts under Act XXVII of 1860. * * * Therefore it is probable that the plaintiff was under a mistake of fact regarding the right of Bahu Begum." This is in the part of the judgment upon the issue whether the defendant was entitled to any and what set-off. Their Lordships do not regard the question of the lessors'' knowledge as being put in issue by the question of the amount of the set-off. If it was, there is a finding upon it which stands affirmed by the High Court. But they think that no issue upon that question having been tried by the Subordinate Judge, it ought not to be allowed to be raised in this appeal. In the grounds of appeal to the High Court in the respondent''s suit it is said that the Court below ought to have held that the mokurari leases were of a speculative character, and that Imambandi was fully aware at the time of the execution thereof that her lessor''s title was under litigation. It might possibly be an answer to the claim for apportionment of the rents that the leases were taken as a speculation, and that Imambandi intended to take the risk of the result of the litigation, but such a case would require to be very clearly proved, and upon the evidence before the Subordinate Judge it would have been plainly wrong to have found that the leases were speculative. Their Lordships are of opinion that the rent was rightly apportioned by his decree, and that the appeals to the High Court ought to have been dismissed. They will humbly advise Her Majesty to reverse the decrees of the High Court and to order the appeals to it to be dismissed with costs, the decrees of the Subordinate Court being thus affirmed. The respondent will pay the costs of these appeals.