Kameshwar Singh and Another vs Jhalak Singh and Others

Bennett, J.—This is an appeal from a preliminary decree in a partition suit in which the plaintiffs, the appellants in this Court, were the applicants for partition. Respondents 6 to 8, defendants 6 to 8 in the suit, did not contest the suit or the appeal, but respondents 1 to 5, defendants 1 to 5 in the suit, whilst admitting the proportion of the appellants'' share and also their right to have partition, denied that, that right extended to the partition of the right to possession of any of the lands in the Tauzi in question on the grounds that the co-sharers, the plaintiffs, defendants 1 to 5 and defendants 6 to 8 were the proprietors each as to one-third in the Tauzi in suit the tenancy right in which was acquired by defendants 1 to 8 at a time when defendants 1 to 5 held the appellants'' share in ijara.

It appears that the method by which the defendants claimed to have acquired possession and the right to retain possession of the land of the tenants was that as to part thereof they had instituted a suit against the tenant for the 16-anna arrears of rent and having obtained a rent decree against the tenants they sold and purchased the tenant''s occupancy holding, the purchase price being set off against the decretal amount. As to the remaining part of the tenancy rights they were acquired by the defendants by a surrender made to them by the tenant, the Co-operative Bank, in consideration for the relinquishment by the defendants of certain 16-anna arrears of rent. By an arrangement between the two sets of defendants, defendants 1 to s obtained possession of a part of the Tauzi in suit, settled a part thereof with tenants, gave a second part in exchange to a third party and took (possession themselves of a third part in accordance with Section 22(2), Bihar Tenancy Act. Defendants 1 to 5 claimed that u/s 22(2), Bihar Tenancy Act they were entitled to hold as their own the land so acquired by them and that the plaintiff was not entitled to obtain partition thereof.

The learned Subordinate Judge in reliance upon the decision of a Division Bench of this Court an Dhaneshwari Kuar v. Chandradhari Singh A.I.R.1936 Pat. 317 decided the point in favour of the defendants.

In my respectful opinion the plaintiffs were prima facie entitled to succeed in their claim upon two separate grounds, firstly, in the particular circumstances of this case, upon the ground that Section 90, Trusts Act, 1882, applies and, secondly, upon the ground that, in any event, Section 22(2), Bihar Tenancy Act does not in such circumstances confer upon the purchasing'' co-owner any right which he is entitled to maintain as against another co-sharer in whose takhta the land or occupancy holding or part thereof is allotted upon partition.

Section 90, Trusts Act, reads as follows:

Where a tenant foe life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.

This section gives statutory form, inter alia, to the English rule of equity that many acquisitions by a mortgagee are treated as accretions to the mortgaged property, or substitutes for it, and, therefore, subject to redemption, the test being, as appears from the judgment of their Lordships of the Privy Council in Rajah Kishendatt Ram v. Bajah Mumtas Ali Khan 6 I.A. 145 whether or not in the particular circumstances of the case the mortgagee can be said to have derived from his mortgagor any peculiar means or facilities for making the acquisition which would not be possessed by a stranger.

In AIR 1932 199 (Privy Council) their Lordships of the Privy Council held that Section 90, Trusts Act, embodied the equitable principle of English Law referred to in the case of Baja Kishendatt Ram v. Rajah Mumtaz Ali Khan 6 I.A. 145 above quoted, and further held that, for this purpose, Section 63, T.P. Act did not carry the matter any further than does Section 90, Trusts Act. In that case it was held that the purchase by a mortgagee in possession of a subordinate tenure in the mortgaged property in circumstances in which it would have been equally open to a stranger to have purchased the same did not prima facie come within the ambit of Section 90, Trusts Act, the more especially as no such case had been set up in the plaintiff''s rejoinder in which the occupancy rights were claimed as accretions to the mortgage, no issues had been framed in regard to it and it had not been considered or decided in the lower Courts.

In my opinion, where a usufructuary mortgagee brings a subordinate tenure or holding to sale in execution of a decree for the rent thereof, which, apart from the mortgage, would be payable to the mortgagor and auction-purchases the same and, equally, where a usufructuary mortgagee takes a surrender of a subordinate tenure in the mortgaged property in consideration of relinquishment of arrears of rent which, apart from the mortgage, would b& payable to the mortgagor, the mortgagee unquestionably derives from his mortgagor and exercises a peculiar means or facility for making the acquisition which would not be possessed by a stranger and such a case, therefore, falls directly within the equitable principle of English Law embodied in Section 90, Trusts Act. As one would expect, the position is the same whether we refer to the equitable principle embodied in the section or to the express provisions of the section itself and I am further of opinion that in such a case the mortgagee has availed himself of his position as such to gain an advantage in derogation of the rights of the mortgagor and also that, in the particular circumstances of this case, the defendants 1 to 8, as representing all the persons interested in the property, gained an advantage and, therefore, both upon principle and upon the express provisions of Section 90, Trusts Act the defendants must hold the advantage so gained for the benefit of all the persons interested in the property, that is to say, in the circumstances of this case, as to one-third of the subordinate tenure or holding for the benefit of the plaintiff-appellant.

In suing and in executing the decree for the 16-anna arrears of rent and in setting off the purchase price against the decretal debt the defendants necessarily availed themselves of their position inter alia as mortgagees of the plaintiff-appellant''s one third share therein and they thereby gained an advantage and that advantage was unquestionably in derogation of the rights which the plaintiff-appellant would himself have possessed and obtained but for the existence of the mortgage. Similarly, in suing and in executing the decree for the 16 anna arrears of rent as well as in setting off the purchase price against the decretal debt the defendants unquestionably represented all the persons interested in the property and they thereby gained an advantage. Similar considerations apply to the surrender of part of the subordinate tenure or holding in relinquishment of arrears of rent.

Mr. Lakshman Saran Sinha for the respondents relied strongly upon the case of Ram Lagan Singh and Others Vs. Mrs. Mary Coffin and Others, the headnote to which runs as follows:

Under Section 63, it the mortgagor desires to have possession of accession, he should on the expiry of the mortgage, tender to the mortgagee the costs incurred by him in making the acquisitions. If the mortgagor never treats the lands as accession or makes any claims and allows the mortgagee to remain in possession of the lands as occupancy raiyat, he cannot subsequently claim the accessions.

The facts in that case, however, were very-different from the facts in the case before us. There a sadhaua pataua lease, which their Lordships held to have been in the nature of a mortgage, was granted by the plaintiff''s pre-decessor-in-title to the defendants in 1902 and; expired in 1912. When the period of the sadhaua-pataua lease had expired the plaintiffs granted the defendants a simple lease from 1912 to 1919 During the currency of the mortgage the defendants had acquired certain subordinate tenures both by execution of rent decrees and following, surrenders by tenants. On the expiration of the mortgage in 1912 the plaintiffs bad made not claim whatsoever to these accretions and it was not until after the expiration of the subsequent lease in 1919 that they put forward any claim thereto and their Lordships on the finding of fact that the plaintiffs had never treated the subordinate tenures in question as accretions-or made any claim thereto until after the expiration of the subsequent lease, rejected their claim. It is not expressly stated in the judgment, whether their Lordships founded their decision, on laches or upon limitation or upon acquiescence or waiver. It is perfectly clear, to my mind however, that their Lordships did not intend, in that case to lay down that either Section 63, T.P. Act or Section 90, Trusts Act must be read as if each section contained a proviso to the effect that the? claim by a mortgagor to any advantage gained-by the mortgagee during the currency of the mortgage must be advanced simultaneously with the redemption of the mortgage. Indeed it would'' be contrary to all canons of construction to read any such proviso into either of these sections. In. this case the mortgage Was redeemed in Jeth 1350 F.S. and the suit was instituted on 16tk, December 1943, and it is, therefore, impossible to say that the suit is barred by limitation or by acquiescence or waiver or that there had been any undue delay on the part of the plaintiffs in putting forward their claim.

Mr. Lakshman Saran Sinha also sought to rely upon the decision of this Court in. Moghab Pande v. Bagho Pande AIR 1929 Pat. 730 the head note to, which runs as follows:

Where the mortgagees in possession purchase certain occupancy holdings which are transferable only by custom and cannot be obtained by strangers, they most-be deemed to have made the acquisitions by reason o�'' their position as mortgagees in possession and there for. such occupancy holdings form an accretion to the mortgaged properties and are liable to redemption along with them.

and he argued that the exactly contrary proposition was, therefore, necessarily true, that is to say, that where the mortgagee in possession purchases certain occupancy holdings which are transferable apart from custom and can be obtained by strangers, he cannot be deemed to have made the acquisitions by reason of his position as mortgagee in possession. The answer to this contention is that it entirely begs the question both u/s 63, T.P. Act, and Section 90, Trusts Act, namely, as to the manner in which in the particular case the mortgagee in possession in fact acquired the occupancy holdings in question and, therefore, the question as to whether or not he did so by the use of any peculiar means or facility derived from his position as mortgagee. It is to be remarked that in the course of his judgment in that case, Das, J. in reliance upon the decision in Rajah Kishendatt Ram v. Rajah Mumtaz Ali Khan 6 I.A. 145 above quoted, himself stated the test in such a case to be as follows:

In my opinion, if it appears that by reason of his position as mortgagee in possession, he has had peculiar facilities for acquiring the properties in question, such properties should be regarded as an acquisition to the mortgaged property. If, on the other hand, it appears that in regard to such acquisition the mortgagee in possession is in the same position as any third party, then the properties so acquired should not be regarded as an accretion to the mortgaged property.

I agree with this statement of the law and applying it to the facts of this case, I am of opinion that the subordinate tenure acquired by the defendants during the subsistence of the usufructuary mortgage here in question must be deemed prima facie to be accretions to the mortgaged property. This prima facie presumption, however, would, of course, be rebutted by any express agreement to the contrary contained in the mortgage agreement. That agreement was not produced in the appeal to this Court and the principles of law above enunciated must be read as subordinate to any express agreement to the contrary contained in the mortgage agreement.

I am respectfully of opinion that when Section 22(2), Bihar Tenancy Act is considered in relation to the pre-existing and general law as to the relation and rights of co-sharers in land as, between themselves and between them and their tenants its true construction does not raise any great difficulty. As was pointed out by Agarwala J., as he then was, in the Full Bench decision of this Court in Sunder Mall and Others Vs. Lachhmi Tewari and Others, , the relevant principles of the general law governing the rights of co-sharers in land as between themselves and between them and their tenants were laid down. by their Lordships of the Privy Council in Midnapore Zamindary Co., Ltd. v. Naresh Narayan Roy AIR 1924 PC 144. The relevant passages in the judgment of the Judicial Committee read as follows:

Where lands in India are so held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sbarer is not an ouster of his co-sharers from their proprietary right as co-sharers in the. lands. When co-sharers cannot agree as to how any lands held by them in common may be used the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain, a partition of the lands. No co-sharer can, as against his co-sharers, obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as is tenants any right of occupancy of the lands in them. Their Lordships may refer on this subject of separate cultivation by a co-sharer of lands held in common to what Sir Barnes Peacook said in delivering the judgment of the Board in Robert Watson & Co. v. Bam Chunder Dutt 18 Cal. 10, 22. He then said: In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husband like manner, the whole estate may, by means of cross injunctions, have to remain altogether without cultivation until all the share-holders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected--a work which, in ordinary course, in large estates would probably occupy a period including many seasons.

In that case the Board made a declaration that Robert Watson & Co. who were the plaintiffs, should recover from the defendant a sum of money, calculated at a specified rate per bigha per year, as compensation for the exclusive use by the defendant of the bighas which had been occupied by him.

Their Lordships are not certain that the Midnapore Company has in recent years, if at all, been cultivating any part of the lands in question. If the Midnapore Company has been, in fact; cultivating any of these lands it cannot by such separate use of the lands have acquired any cote rights in them. Even if the Midnapore Company purchased any cote rights in lands held in common by the co-sbarers, such a purchase would in law be held to have been a purchase for the benefit of all the co-sharers, and the cote rights so purchased would by the purchase be extinguished. The Midnapore Company alleges as a defence to this suit that tenants of the Midnapore Company, who are not tenants of the co-sharers, have acquired under the Midnapore Company cote rights, rights of occupancy, in the lands in suit. Such rights of occupancy, if they existed, would be raiyati cote rights, but a raiyat cannot acquire u/s 180, Bengal Tenancy Act, 1885, a right of occupancy in her land until he has held the land for twelve continuous years, and no evidence has been brought to the attention of their Lordships that any raiyat had held any of the lands in suit for twelve continuous years before suit as a tenant of the Midnapore Company, even if a holding of lands by a raiyat under the Midnapore Company, and not under the Co-sharers, could confer a right of occupancy on the raiyat as against the co-sharers. In Bengal a co-sharer has no more power to confer a right of occupancy on a raiyat than a middleman would, have, and in Bengal a middleman cannot obtain as a middleman a right of occupancy in himself, much less can he create in his tenant a right of occupancy in lands held by him as a middleman. See the judgment delivered by Lord Dunedin in Midnapore Zamindary Co. v. Naresh Narayan Boy A.I.R.1922 P.C. 241. See also the cases referred to at page 116 of the commentary on the Bengal Tenancy Act, 1885, by W. Finucane and Ameer Ali (Syed), edited by F.G. Wigley, Calcutta, 1904.

It is, therefore, clear that every co-sharer has a right to enter upon and use and cultivate any part of the land held in common not already in the possession of another co-sharer, but, unless he does so under some arrangement with the other cosharers inconsistent therewith, he is bound to pay them reasonable compensation for his resulting exclusive use or cultivation and, once he has so entered, he can only be disturbed in his possession as a result of a partition. No suit for his ejectment will lie at the instance of another co-sharer merely by reason of the co-ownership but he cannot as against his co-sharers either acquire or grant any cote rights in the land.

The decision of the Judicial Committee in Midnapore Zamindari Co. Ltd. v. Naresh Narayan Roy AIR 1924 P.C. 144 was given in 1924 in a suit for partition which was instituted in 1912. In the course of the judgment, their Lordships, as we have seen, specifically referred to Section 180, Ben. Ten. Act, 1885, and although there is no specific reference to Section 22(2) thereof which both before and after the amendment of 1907 was in exactly the same terms as Section 22(2), Bihar Tenancy Act, the prima facie presumption, having regard to the long possession and course of dealing by the Midnapore Zamindary Company is that their Lordships considered that the general principles laid down by them were unaffected by the provisions of the Sub-section either before or after the 1907 amendment. If that is so, then the decision of the Judicial Committee settled the law in a manner which is quite inconsistent with the decision of the Division Bench of this Court in Dhaneshwari Kuar v. Ghandradari Singh AIR 1936 Pat. 817 relied upon by the learned Subordinate Judge and by the respondents to this appeal. But, even if we assume that the Judicial Committee were only stating the general law of India on the subject without reference to the effect thereon of Section 22(2), Bihar Tenancy Act, as it stood either before or after the 1907 amendment, the result is the same, because, in my respectful opinion, it is perfectly clear that, except in one respect after the 1907 amendment with which I shall deal later and which does not in any event affect the circumstances of this case, Section 22(2), Bihar Tenancy Act, both before and after the 1907 amendment, did not affect or change the general law as enunciated by the Judicial Committee. Prior to the 1907 amendment, Section 39(2), Bihar Tenancy Act, read as follows:

If the occupancy-right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, it shall cease to exist; but nothing in this Sub-section shall prejudicially affect the rights of any third person.

Under the general law, as we have seen, where a co-sharer purchases any cote right the purchase is deemed to be for the benefit of all the co-shares and the pre-existing cote right is there by extinguished. If by the term "occupancy-right" in Section 22(2) is meant, as suggested by Agarwala J., in Sunder Mall and Others Vs. Lachhmi Tewari and Others,

the whole of that fascicule or bundle of rights and statutory incidents appertaining to the tenancy of an occupancy raiyat,

then, in enacting that upon the transfer thereof to a co-sharer proprietor the occupancy right should cease to exist, the Legislature were merely making it clear that, in such an event, the fact that the fascicule of rights in question included the statutory incidents enacted in the Bihar Tenancy Act would not operate to affect or alter the general law. If, on the other hand, by the term, "occupancy right" in Section 22(2) is meant, as was held by the Special Bench of the Calcutta High Court in Jawadul Huq v. Ram Das Saha 24 Cal. 143, merely "the occupancy right which is an incident of the holding," then, the Legislature was dealing solely with the occupancy right as such leaving the remaining rights and incidents to fall under the provisions of the general! law, so that in that case, union a transfer thereof to a co-sharer proprietor the occupancy right as such ceased to exist under the provisions of the Sub-section and, in so far as they also were transferred, the remaining rights and incidents of the holding would be extinguished under the general law, Whatever view, therefore, is taken of the meaning of Section 22(2), Bihar Tenancy Act, as it stood before 1907, the result is exactly the same and it is exactly the same result as flows from the provisions of the general law as enunciated by the} Judicial Committee.

Section 22(2), Bihar Tenancy Act, after the 1907 amendment, reads as follows:

If the occupancy-right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holders of the shares of the rent which may be from time to time payable to them; and if such transferee sub-lets the land to a third person, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land.

The alteration in the wording of the Sub-section in no way altered the law; it merely enunciated the law from a different angle. Prior to the amendment the Legislature decreed in effect that upon the transfer of an occupancy right to a co-sharer proprietor the occupancy right should cease to exist and left the resultant position to be determined according to the general law. By the amendment the Legislature, with the exception with which I shall deal later, defined the resultant'' position in such an event in the terms of the general law and at the same time fixed the compensation payable by the purchasing co-proprietor under the general law at the respective shares of the rent "from time to time payable to the other co-proprietors." Under the general law a co-proprietor entering into possession of the co-owned land either following a purchase by him of a subordinate tenure or raiyati holding or otherwise does so on behalf of all co-proprietors and is entitled to hold the land subject to his liability to pay his co-sharers compensation for his exclusive possession. The remedy of the co-proprietors if they wish to put an end to this state of affairs is a suit for partition. The effect of Section 22(2), Bihar Tenancy Act, after the 1907 amendment is exactly the same except that the compensation payable is fixed at the respective shares of the rent from time to time payable. The word ''rent'' in its context in Section 22(2), Bihar Tenancy Act is clearly used solely as a measure of the payment to be made by the co-owner in possession and is in no sense descriptive of the nature of that payment. See the judgment of Agarwala J. (as his Lordship then was) to this effect in Sunder Mall and Others Vs. Lachhmi Tewari and Others, . The only alteration in the general law effected by the Sub-section as amended in 1907 is that contained in the concluding phrase which provides that upon a sub-letting by the transferee co-sharer in possession to a third person that person shall be deemed to be a tenure-holder or a raiyat as the case may be. In this respect the rule of the general law that a co-sharer in possession cannot create any cote right in the land without the consent of the other co-sharers is abrogated.

It has been suggested that if a co-sharer transferee of a subordinate tenure is not entitled to retain possession thereof upon partition where the same is allotted to the patti of some other co-sharer it would lead to injustice in that he will lose the money he spent in the acquisition thereof. In his judgment in the Full Bench decision in Sunder Mall and Others Vs. Lachhmi Tewari and Others, Agarwala J., in regard to this contention said:

It may be presumed that where a co-owner purchases an occupancy right he takes into consideration, in deciding what price to pay for it, (a) the risk that his co-sharers may apply for partition, (b) the compensation payable to his co-sharers until partition and (c) the salami which he may expect to receive if be settles the land with another tenant.

With'' the greatest respect, I feel bound to state my view that that does not represent the true position. In their application of the principles of justice, equity and good conscience, the Courts in India may be described as being as much Courts of Equity as of Law and in a suit for partition the Courts are bound to adjust all the equities between the parties. Thus, upon partition, it is the duty of the Court, other things being equal, to allot to the co-sharer in question any particular portion of the lands of the co-tenancy upon which that co-sharer has ''been located and whose value he has enhanced by making improvements thereon.

The law will not compel one co-tenant to pay for improvements made without his authorization; but it will not, if it can avoid so inequitable a result, enable a co-tenant to take advantage of the improvements for which he has contributed nothing" (Freeman on Co-Tenancy, paragraph 510).

On the point as to the position where the property is not susceptible of partition so as to enable the respective co-sharers to retain the benefit of improvements made by them, the learned author in the same paragraph states the following rule:

Where one tenant in common lays out money in improvements on the estate, although the money so paid does not, in strictness, constitute a lien on the estate, yet a Court of equity will not grant a partition without first directing an account and a suitable compensation. To entitle the tenant in common to an allowance on a partition in equity, for the improvements made on the premises, it does not appear to be necessary for him to show the assent of his co-tenants to such improvements, or a promise, on their part, to contribute their share of the expense; nor is it necessary for them to show a previous request to join in the improvements, and their refusal.

The only good faith required in such improvements is that they should be made honestly for the purpose of improving the property, and not for embarrassing his co-tenants or encumbering their estate, or hindering partition." But "if one joint tenant, or tenant-in-common, covers the whole of the estate with valuable improvements, so that it is impossible for his co-tenant to obtain his share of the estate without including a part of the improvements so made the tenant making the improvements would not be entitled to compensation there for, notwithstanding they may have added greatly to the value of the land; because it would be the improver''s own folly to extend his own improvements over the whole estate, and because it would be unjust to permit a co-tenant, at his pleasure, to charge another co-tenant with improvements he may not have desired. In such a case, the improver stands as a mere volunteer, and cannot without the consent of his co-tenant, lay the, foundation for charging him with improvements.

In equity, similar considerations must, in my opinion, apply to the case where a purchase by one co-sharer has resulted in an accretion to the joint property and this is illustrated by the rule of equity embodied in Section 90, Trusts Act, under which a co-sharer who, by the use of his position as such, has gained an advantage in derogation of the rights of the other co-sharers is bound to hold that advantage for the benefit of all the co-sharers subject to his being indemnified there for by the other co-sharers in their respective shares. Equally, it is obviously not open to the co-owner transferee to deprive his co-sharers of their fair share of rent by accepting a large salami and an inadequate rent and there is nothing in Section 22(2), Bihar Tenancy Act, to support any such inequitable result. The true position as above enunciated, namely, that upon partition it is the duty of the Court to adjust the various equities arising between the parties as may be right and just, also, as it seems to me, necessarily flows from the earlier observations of Agarwala J. in the same case at p. 904 of the report as follows:

The amendment should be construed in the light of the fact that in 1891 the Privy Council had considered the rights of co-sharers inter se when one of them cultivates a part of the land belonging to all of there, in Robert Watson and Co. v. Ramchund Dutt 18 Cal. 10 and had observed that it would be inconsistent with the rule of justice, equity and good conscience to allow any of the other co-sharers (the plaintiffs in that suit) to appropriate the fruits of the labour or capital of the defendant co-owner who had cultivated the land. By enacting in 1907 that the purchasing co-owner of an occupancy right shall be entitled ''to hold the land'' subject to the payment to his co-proprietors ''of their shares of the rent which may be from time to time payable to them'' the Legislature gave effect to the rule of equity, justice and good conscience referred to by their Lordships and should not be taken to have intended to go any further than that.

The observations read with the reference in the Lordship''s judgment at p. 905 of the report to the decision of the Judicial Committee in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy A.I.R.1924 P.C. 144 and the conclusion drawn by their Lordships there from at p. 906 of the report, namely:

There is nothing in Sub-section (2) to suggest that a co-owner who purchases an occupancy right is entitled to retain possession after the land which he has purchased has been allotted to the patti of any other co-sharer by partition. Indeed, the decision of Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy A.I.R.1924 P.C. 144 negatives the plaintiffs'' right of permanent occupancy by the purchasing co-owner.

appear to me to constitute ample authority for the opinions which I have above expressed as to the effect upon the general pre-existing law of Section 22(2), Bihar Tenancy Act both before and after the amendment of 1907. Indeed the observations of and conclusion drawn by Agarwala J., in the Pull Bench case are the source of those opinions and I have only, I think, re-stated them in my own words. If that is so, then the ratip of the decision in the Full Bench case is entirely inconsistent with the decision of the Division Bench of this Court in (Babui) Dhaneshwari Kuar Vs. Chandradhari Singh and Another, and although the former deals with the position prior to the 1907 amendment and the latter with the position after that amendment, I think that the former must be taken to have overruled the latter. The material decision of the Division Bench in Dhaneshwari Kuar v. Chandradhari Singh AIR 1936 Pat. 817 is stated in the first item of the placitum as follows:

Section 22(2) of the Bengal Tenancy Act confers a privilege on the purchasing co-sharer which is in derogation of the common law right of the other co-sharers and there does not seem to be anything in a partition to take away that privilege." Apart from the authorities relied upon in the judgment to which I shall refer hereafter, the only reason given by Dhavle J., with whom Courtney-Terrell C.J. agreed, in support of the proposition in the first placitum is contained in the following passage:

As my Lord the Chief Justice pointed during the course of argument, what the learned Advocate for the appellant has endeavoured to do is to read into the affirmative proposition contained in Clause (2) of Section 22 a negative provision that the purchasing co-sharer will have no right at all to the land as soon as he ceases to be a co-sharer by reason of the partition. But it is only as long as there are others interested in the land as co-proprietors that it is necessary to deal specially with the purchasing co sharer''s right to hold the land. The partition does not put an end to that right or make a present of it to the co-proprietors who purchased nothing. What is really available for partition is not the land itself but the rent that would have been paid for the land by the occupancy raiyats whose place has now been taken by the purchasing co-proprietor, with the result that he becomes liable until partition to pay a proportionate share of the rent to the other co-proprietor or co-proprietors. These rents would be taken into account in the partition, but not the land purchased by the respondents.

It is impossible to reconcile this passage with the judgment of Agarwala J. in the Full Bench case as quoted above from p. 904 of the report. The first sentence in this passage from the judgment of Dhavle J., clearly shows that his Lordship was either construing (Section 22(2) without reference to the pre-existing general law or that he was under a misapprehension to the relevant principles of that law as laid down by the Judicial Committee in Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy AIR 1924 PC 144. It is a fundamental canon of construction that a statute lis not to be interpreted as modifying the pre-existing law to an extent greater than the (language used and the object of the statute pearly necessitate. There is nothing in the language of Section 22(2) viewed in the light of the pre-existing law which in any way necessitates the (construction that it is concerned with the rights of the co-sharers upon or after partition. On the contrary, on the face of it; it is concerned only with the relation between the transferee co-sharer as such with his co-sharers as such. The (object of the Bihar Tenancy Act, as pointed out by Agarwala J. in the Pull Bench case, was to prevent landlords from encroaching upon the raiyati land of the province and there is nothing in that object to compel the straining of the wording of Section 22(2) so as to confer some privilege upon the transferee co-sharer upon partition which he would not possess under the general taw. The remaining sentences in the passage above quoted from the judgment of Dhavle J. appear to rest upon the assumption that the occupancy rights purchased by the transferee co-sharer were not accretions to the property held in co-tenancy. As appears from the judgment of the Judicial Committee in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy. AIR 1924 PC 144 this assumption is erroneous.

The authority expressly relied upon by Dhavle J. in support of the proposition contained in the first plaeitum as above quoted in the case of (Babui) Dhaneshwari Kuar Vs. Chandradhari Singh and Another, was the case of Jhapsi Sao and Others Vs. Musammat Bibi Aliman and Others, . As to this, it is sufficient to say that in the Pull Bench decision Agarwala J. at the conclusion of his judgment stated:

As I have already mentioned, the purchase in Jhapsi Sao and Others Vs. Musammat Bibi Aliman and Others, was not shown to have made before the amendment of 1907, and in my opinion it can no longer be held to be a good law in view of the decision of the Judicial Committee of the Privy Council in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy A.I.R.1924 P.C. 144).

For these reasons, I am respectfully of opinion that the decision in Dhaneshwari Kuar v. Chandradhari Singh AIR 1936 Pat. 317 is not good law and must be taken to have been overruled in the Pull Bench decision of this Court in Sunder Mall and Others Vs. Lachhmi Tewari and Others, .

If, therefore, after settling an issue and recording a finding thereon, the learned Subordinate Judge, as he ought to have done, had embodied the finding in his preliminary decree, we should have been bound to set it aside. Since he has not done so and since the matter in question can properly be decided in the course of the further proceedings in the suit, it is not necessary for this Court to set aside the preliminary decree or otherwise to interfere with the further proceedings in the suit except to direct that in the course of those further proceedings the working out of the rights of and the equities between the parties shall be done in accordance with the principles contained in the judgments of this Court and not in accordance with the finding of the learned Subordinate Judge on issue 3 before him.

It is only necessary to add that the principles of law above enunciated in regard to Section 22(2), Bihar Tenancy Act, are as much subordinate to any express agreement between the parties contained in the mortgage agreement as are the principles of law embodied in Section 90 of Trusts Act.

In the result, I would dismiss this appeal, but, since I agree with the appellants'' contentions upon the matter argued before us and since there may, but for the appeal, have been some danger of the finding of the learned Subordinate Judge upon issue 3 before him being res judicata, without costs.

Shearer J.

In 1929 when the plain, tiffs mortgaged their interest in this estate to defendants 1 to 5, the whole of the land comprised in the estate, with the exception of a quite inconsiderable area which was gairmazrua or waste, was in the possession of occupancy raiyats. Before the'' mortgage was redeemed every one of these occupancy raiyats had been bought out and the greater part of the land comprised in their holdings had been settled with one Mohan Singh. According to defendants 1 to 5, this Mohan Singh has acquired a right of occupancy in this land, he, presumably, being already a settled raiyat of the village. If I understand the judgment of the learned Subordinate Judge correctly, the pleader-commissioner is to assume that the income from the estate is the aggregate of the rents which were paid by the Original occupancy raiyats and the rents which are paid by those raiyats who have been settled on the land which in 1929, was gairmazrua or waste. The plaintiffs are not to be given khas possession of a single dhur of land in the takhta to be formed for them. Moreover, no raiyat in possession of land in this takhta will pay rent direct to the plaintiffs, unless he is a raiyat in possession if the land which was gairmazrua in 1929 and has since been brought under cultivation. If, as may well be the case, most of the Land is in the possession of Mohan Singh, Mohan Singh'' will pay the rent he has contracted to pay to defendants 1 to 5, and defendants 1 to 5 will pay to the plaintiffs the rent which was paid by the original occupancy raiyats whose place Mohan Singh has taken. In directing that the partition should be made in this way the lower Court relied on the observation of Dhavle J. in (Babui) Dhaneshwari Kuar Vs. Chandradhari Singh and Another, that

what is really available for partition is not the land itself but the rent that would have been paid for the land by the occupancy raiyat whose place has been taken by the purchasing co-proprietor.

That, of course, is the logical result of the theory that when a co-proprietor purchases an occupancy holding, a tenancy of an anomalous or peculiar kind is at once created as between the other co-proprietors and himself. For the reasons which I have given in my judgment in Anand Prasad Singh Vs. Medni Prasad Singh and Others, that theory is, in my opinion, an untenable one. If the plaintiffs had mortgaged their interest to a stranger and if that stranger and the other co-proprietors had purchased occupancy holdings and then, in the ordinary course of management, had settled the land with other settled raiyats of the village, the plaintiffs, on redeeming the mortgage, would indisputably have been entitled to recover from the latter their share of the rent they had contracted to pay. Why, merely because they mortgaged their interest to one of their co-proprietors, should or can their income be altered and perhaps largely reduced and why should or can they be deprived of their security for it That consequences so manifestly inequitable should ensue from applying it is, I consider, a strong reason for sup. posing that the dictum of Dhavle J. is wrong. If any land in the takhta to be formed for the plaintiffs is in the possession of Mohan Singh or any one else who has a right of occupancy in it, the plaintiffs are entitled to the rent payable by them. As regards the bakasht land other considerations will apply. It is usual when milkiat property is mortgaged with pos. session to insert in the mortgage deed a provision as to what is to be done, if during the pendency of the mortgage, the mortgagee purchases an occupancy holding in execution of a rent decree and is in possession of it when the mortgage is redeemed. The mortgage deed executed by the plaintiffs must be examined to see if it contains any such clause. If it does not, then it must be considered whether Section 68, T.P. Act applies. As my learned brother has pointed out, the question will be whether, in acquiring these occupancy holdings, defendants 1 to S took advantage of their position as mortgagees. ;I agree that prima facie they did so, if they obtained surrenders of the holdings in consideration of foregoing their claim to rent or if they purchased the holdings in execution of rent decrees and for the amount due under these decrees. If they purchased them at execution sales at which strangers competed and, bid more than the amount due under the decrees the position may, perhaps, be otherwise and until the facts have been fully ascertained it is impossible to express an opinion.

The decree, as it stands, is correct and the plaintiffs do not seek to set it aside or vary or modify it in any way. That being so, the appeal is really incompetent and must be dismissed but, in the circumstances, without costs. If the learned Subordinate Judge was purporting; to give "further directions" and that I think, is what he was doing, the "further directions'' ought to have been set out in the decree as-required by Order 20, Rule 18(2), Civil P.C. This not having been done the order is not binding on the parties or on the successor in office of the learned Subordinate Judge who has since been transferred. It is not, however, enough for us to point this out. It is desirable that any confusion that may have been caused by the order of the Court below should be removed. I take this opportunity of deprecating the course taken by the learned Subordinate Judge, which was a most unusual one. If one of the parties in a partition suit claims that certain land should be allotted to his takhta or that, if certain land is allotted to the takhta of another party, he should, nevertheless, be permitted to remain in occupation of it on payment of rent,, the claim usually is, and I think myself in-variably ought to be, put forward in the proceedings before the Commissioner. If it is allowed to be put forward at an earlier stage and is decided by the preliminary decree, the proceedings may be unduly prolonged, as there may be an appeal, which would not otherwise have been preferred, against the preliminary decree, and then an appeal, on some other point,, against the final decree.