Mt. Shakal Kuer and Others vs Parmanand and Others

Courtney-Terrell, C.J.—These matters arise out of a suit by the plaintiffs to recover 9 annas 1 dam 7 cowries odd share in mauza Maulangar, alleging that this share which was ijmal had been sold on 23rd March 1925 u/s 13, Revenue Sale Law, for arrears of revenue in respect of that share and had been purchased by plaintiff 1 who had in turn sold 8 annas out of it to plaintiffs 2--4. The plaintiffs say that when they went to take khas possession they were resisted by the defendants on the allegation that they (the defendants) held mukarrari interest in the share. The lower Court granted a decree evicting the defendants who now appeal. Appeal No. 135 of 1930 is that of defendants 5--22, 24--26, 31,36--49and 52--54, who claim 8 annas 16 dams 18 cowries odd mukarrari interest in the ijmali share, and the decision of this matter will govern all the others.

Minor circumstances affecting the other matters will be dealt with at the conclusion of this judgment. The following facts are material for this decision: The whole tauzi originally belonged as to 12 annas to one Saif Ali and as to 4 annas to another person, which latter share was made the subject of a separate account with which we are not concerned. Out of his 12 annas share, Saif Ali in 1867 granted what the defendants contend to be a mukarrari lease of 9 annas in favour of seven persons, a share being allotted to each.

These persons are the predecessors of certain of the defendants. At the same time Saif Ali made a similar grant of one anna share to another person who is the predecessor of the other defendants. As to the remaining two annas in his possession Saif Ali sold them to his two sons who also on Saif Alis death inherited the proprietary interest in the other 10 annas remaining in him after his mukarrari grants.

Upon certain defendants shares in the proprietary right have devolved, upon some others of share in the mukarrari right has devolved, and yet others seem to be interested as proprietors and also as mukarraridars. Several separate accounts were opened for the payment of revenue, and a 9 annas 1 dam odd share was left in ijmal, of which 8 annas 16 dams odd share was subject to the mukarrari and 4 dams, 9 cowries was free from mukarrari. This ijmali share fell into arrears of Government revenue and was put up for sale when it fetched Rs. 710 from plaintiff 1. The defendants interested in the mukarrari originally granted by Saif Ali refer to Section 54, Revenue Sale Law, and contend that the purchaser must take the share purchased subject to the encumbrance of the mukarrari and that the mukarraridars could not therefore be disturbed in their possession.

To this the plaintiffs reply that the mukarrari was one in name only; that it was in fact a transfer of the proprietary right with the object of defeating the provisions of the Revenue Sale Law, that its effect and intention was to deprive Saif Ali of his entire proprietary right, and that the circumstances were analogous to an attempt to defeat the law of pre-emption by a transfer of interest under the guise of a lease. This contention was accepted by the Subordinate Judge, but in my opinion it cannot be sustained. It is admitted that no evidence of the events contemporary with the mukarrari patta of 1867 other than its contents is available.

It recites that Saif Ali bad a decree against him of Rs. 7,514 and then goes on to say that he granted 9 annas of the 12 annas previously purchased by him in the mauza

owned and possessed by me together with malwajhat, all hububs, jalkar, bankar, ahar, pokkar, reservoirs, tanks, pucca and kachcha wells, palm and date tree''s, orchards of mango, mahua and other fruit bearing and non-fruit bearing trees excepting minhai lands, khairat lands, bishunprit, brahmottor, shibottor, neaz dargah lands, etc., which are rent-free under the law (here follow the names of the seven lessees) at a uniform annual jama of Rs. 243-15-0 fixed from all sources without dispute or contention, with effect from 1275 Rs., on receipt of Rs. 8,500 as nazrana, from them, for payment of decretal money to the said decree-holder and land revenue and for defraying other necessary expenses. I have received the nazrana in full from the said mukarraridars, in the manner following, viz. I had taken Rs. 500 from them previously, and on payment of the decretal money to the decree-holder, got the mauzas Gauharpur Kosadhi and Babhandiha exempted from sale, and having now received Rs. 8,000 in cash brought it to my possession and use and put the said mukarraridars in possession and occupation of the mukarrari property. The said mukarraridars should, whilst holding possession of the mukarrari property, make proper cultivation, pay Rs. 242-15-0 as revenue of the mukarrari share into the treasury at Gaya and the balance of rupee one as reserved rent to me at the end of each year.

Now follows a clause which was not correctly translated in the paper book, and we called for the original. The clause correctly translated is as follows:

And except for the mukarrari rent aforesaid the executant shall not on any account or under any circumstance claim annulment of the mukarrari or demand enhancement of the mukarrari jama.

It is clear therefore that the grantor retains the proprietary rights together with such incidents as for example mineral rights and that ha may re-enter for failure of the mukarridars to pay the rent reserved. The rent reserved (the uniform annual jama) is Rs. 243-15-0 notwithstanding that out of this sum Rs. 242-15-0 is to be paid into the Government treasury to satisfy the Government''s claim to revenue and the

balance of only one rupee to the grantor.

It is quite immaterial that the grantor stipulates that a large or any proportion

of the annual jama shall be paid to any

person designated by him, whether or

not that person happens to be the Revenue Officer or indeed whether that parson may have any legal claim on the grantor.

That is a matter for the grantor alone and if the grantee has contracted to pay to the person or persons designated the sum to be so paid it is none the less rent than if it is to be paid to the grantor alone. The rent is not merely the balance of Re. 1 payable to the grantor but the entire annual jama of Rs. 243-15-0. It was further contended that the provision for the payment to the mukarraridars of the excess proceeds of a sale for arrears of revenue is an indication of an intention to defeat the Revenue Sale Law and moreover indicates that the entire proprietary right was to pass to the mukarraridars. But it must be remembered that a nazrana of Rs. 8,500 was paid and the grantor may well have considered that this was ample consideration for the loss of the chance of a balance of the purchase price in the event of such a sale being held in the future. The plaintiffs relied on an old case before the Calcutta High Court in Monohur Mookerjee v. Joykishen Mookerjee (1866) 5 WRI, where the purchaser of a share sold under the Revenue Sale Law was met with resistance to possession by one who alleged a mukarrari lease. The purchaser sued the grantor of the lease and his son (the resisting tenant) alleging that the sale was collusive and fraudulent.

The first Court agreed with this contention. The lower appellate Court held that the lease had already been executed but held that it was for the plaintiff to prove collusion and fraud and reversed the decree. The report does not indicate the terms of the alleged lease. The High Court held that the burden of proof had been shifted and remitted the case to the lower appellate Court to decide four issues, i.e. (1), Was the lease executed by the defendant grantor; (2) Was it executed at the time stated, bona fide, with the intention of immediately passing a substantial interest to the lessee, his son; (3) Was this assignment intended to operate in fraud of a foreseen possible auction purchaser: (4) To what extent, looking at the grantor defendant''s relations with his cosharers, could this lease constitute an encumbrance on the plaintiff''s purchase within the meaning of the Act.

It will be seen that the suit was against the alleged transferor and the transfer must have been comparatively recent. In the case before us the lease was executed many years ago and the parties to it are all dead and have long parted with such interests as they had and no evidence is or could be produced as to their bona fides, or their intentions. Moreover there is no indication of an intention to decide that a bona fide lease, however small the proprietary interest reserved to the grantor could be impugned. This case does not assist the plaintiffs in the least.

The series of cases upon transactions liable to pre-emption have little or no bearing. The object of the law of preemption is to keep out strangers and any transaction -whether of sale, mortgage or lease may be pre-empted if it offends against the local conditions of that law. This is well explained in the case of Lalji Missir v. Jaggu Tiwari (1910) 33 All 104 before the Allahabad High Court and the authorities dealt with in the judgment in that case, No such general principle applies to sales under the Revenue Sale Law nor is there any section which gives a right to the Court to go behind the document of incumbrance if the legal effect of it is clear. Lastly it was urged that the conduct of those upon whom the mukarrari interest devolved must be taken into account in inferring the intention of the parties to the lease.

It is said that whereas they never paid to the grantor or to those succeeding to his interest the Rs. 1-8-0 out of the annual jama of Rs. 243-15-0, this justified the conclusion that it was never originally intended that rent should be paid. Even if the fact had been established, that some mukarraridars did not pay their shares of this sum it would be quite irrelevant to the construction of the document. For these reasons, I am of opinion that the mukarrai patta of 1367 cannot be impugned and the purchaser of the ijmali share has bought it subject to the rights of the mukarraridars who cannot be ejected. I would therefore reverse the decision of the Subordinate Judge in First Appeal No. 115 of 1930 and dismiss the suit.

First Appeal No. 172 of 1930 is by defendants 57 to 59. It appears that the decree as originally made was subsequently amended on 12th July 1930 whereby these defendants, it is alleged, were exempted from the liability to pay cost to the plaintiffs. It is stated that the plaintiffs however have executed a decree for cost against these defendants. Defendants 57 and 58 have no mukarrari interest in the ijmali share nor have they got any proprietary interest in that share. Defendant 59 had some proprietary interest in the ijmali share but it has now passed to other persons; he has no mukarrari interest in that share Having regard to the fact that the decree of the Subordinate Judge has been set aside in First Appeal No. 135, it is not necessary to deal with this appeal any further.

The whole decree of the Subordinate Judge must be set aside and these defendants cannot be made liable to pay costs to the plaintiffs.

Appeal from Order No. 24 of 1931 was also filed by defendants 57 to 59 and it is directed against an order of the Sub-ordinate Judge passed on review of his order of 12th July 1930 under which it is contended that these defendants have been made liable for mesne profits; and Civil Revision No. 366 of 1930 has been filed in the alternative against the same order, as these defendants were doubtful whether an appeal lay against the order of the Subordinate Judge. These two matters also need no consideration as the order of the Subordinate Judge passed on review must also be set aside as a necessary consequence of the setting aside of the original decree.

The result is that all these appeals succeed and the orders of the Subordinate Judge challenged in these matters must also be set aside. The appellants are entitled to their costs in this Court as well as in the Court below. In First Appeal No. 172 of 1930, in Appeal from original Order No. 24 of 1931, and in Civil Revision No. 366 of 1930 one set of costs only will be allowed.

Kulwant Sahay, J.

I agree.