Patna High Court
Upendra Pratap Narain Sahi vs Dulhin Ishwarwati Kuer And Anr. on 16 April, 1948
Equivalent citations: AIR1950PAT115, AIR 1950 PATNA 115
JUDGMENT Agarwala, C.J.
1. The questions referred to us for decision are ;
"1. Do the provisions of Section 22 (2), Bihar Tenancy Act as amended in 1907 entitle a co-sharer landlord, who has purchased a non-transferable or a transferable occupancy holding between the years 1907 and 1923 to retain it in his possession as his purchased land on a partition taking place between him and his cosharers ?
2. Were the cases of Jhapsi Sao v. Bibi Aliman, 5 Pat. 281 : (A.I.R. (13) 1926 Pat 263) and Babu Ram Prasad v. Gopal Chand, 2 P. L. T. 163: (A.I.R. (8) 1921 Pat. 341) and Basudeo Narain v. Radha Kishan, 3 P. L. T. 22 : (A.I.R. (9) 1922 Pat. 62) correctly decided, assuming that the acquisitions of the occupancy holding were made after 1907 in those cases?
2. This case again raises the much debated question of the rights, on partition, of a cosharer proprietor who has purchased an occupancy holding. So far as purchases made before 1907 are concerned, it was decided by the Full Bench in Sunder Mall v. Lachhmi Tewari, 19 Pat. 893 : (A.I.R. (27) 1940 Pat. 467 F. B.) that the purchasing co-sharer is not entitled to retain possession after partition. What has now to be decided is whether he is entitled to retain possession after partition if his purchase is subsequent to the amendment of Section 22, Tenancy Act in 1907. There have been a number of decisions in this Court, including those mentioned in the reference, in which it has been held that he is entitled to retain possession. There are other cases of this Court in which, although it has not been held directly that be is not entitled to retain possession after partition, it has been held that he is not entitled to retain possession after he has parted with the proprietary interest, that is to Bay, after he has ceased to be a co-sharer in the proprietary interest. It has also been held, however, that he does not, by partition, cease to be a co-proprietor. The logic of this view I find it extremely difficult to follow.
3. So far as the acquisition of an occupancy holding by a sole landlord, or by the entire body of co-sharer landlords, is concerned, Sub-section (1) is quite clear that the tenancy merges in the proprietary interest with the result that it cases to exist as a separate interest. The difficulty has always been with regard to the position when an occupancy holding is purchased by one of several co-sharers. Sub-section (2) attempts to define his position. In order to understand the scope of that section it is as well to bear in mind what the Privy Council baa held to be the position when a raiyati holding is purchased by a co-sharer proprietor. In the Midnapur Zamindary Co. v. Naresh Narayan Roy, 51 Cal. 631: (A.I.R. (11) 1924 P. C. 144), their Lordships laid down the following propositions :
"(1) Where lands in India are held in common by co-sharers, each co-sharer is entitled to cultivate in his own interest in a proper and husband-like manner any part of the lands which is not being cultivated by another of his co-sharers, but be is liable to pay to his co-sharer compensation in respect of such exclusive use of the lands ;
2. No co-sharer can, as against this co-sharers, obtain any jote right, a right of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them;
3. Even if the Midnapur Company purchased any jote rights in lands held in common by the co-sharers, such a purchase would in law be held to have been a purchase for the benefit of all the co-sharers, and the jote rights so purchased would upon purchase be extinguished."
The suit was for partition of certain lands in which the plaintiffs and the Midnapur Zamindari Company were cosharers proprietors, a declaration that the Company had no jote rights in any of the lands of which partition was Bought, and a decree for possession after partition by ejectment of the Company. The substantial defence of the Company was, (1) that the plaintiffs had not been in possession within 12 years from the date of the institution of the suit which was 8th August 1912, of the lauds in which he claimed jote rights and that his claim to eject the Company, therefore, was barred by limitation; and (2) that the Company had jote rights in the lands in question. It was with regard to the second of these defences that the propositions mentioned above were stated. It is to be noticed that these propositions were laid down in 1924 (i.e., long after the amendment of 1907) and that among the members of the Judicial Committee which stated them were Sit John Edge and Mr. Ameer Ali, both of whom were familiar with the tenancy legislation of Bengal. It cannot be supposed, therefore, that Section 22, Tenancy Act was not considered. There is another reason which negatives any such supposition. In 1868 in Womesh Chunder v. Raj Narayan Roy, 10 W. R. 15, Sir Barnes Peacock, C. J. had expressed a doubt whether the doctrine of merger applies in the mofussal in India. The doubt then expressed was reiterated by the Privy Council in 1921 in Dulhin Lacchanbati Kumari v. Bodhnath Tiwari, 26 C. W. N. 565 : (A.I.R. (9) 1922 P. C. 94). When, therefore, their Lordships stated in the Midnapur Zamindari Company's case, (51 Cal. 631 : A.I.R. (11) 1924 P. C. 144) that even if the Company purchased any jote rights in land held is common by the co-sharers, such purchase would in law be held to have been a purchase for the benefit of all the co-sharers, and the jote tights so purchased would, upon purchase, be extinguished, it was not on the basis of the common law that they so held. The only statutory authority for the application of the doctrine of merger to agricultural lands is Section 22 (1), Tenancy Act, and, therefore, this must be "the law" to which reference is made in the phrase "such a purchase would is law be held to have been a purchase for the benefit of all the co-sharers". The decision of the Board must, therefore, be regarded as a statement of the law as enacted in Section 22. The importance of this case is that it decided, first, that a purchase of jote rights in land, by one co-sharer, is for the benefit of all; secondly, that the effect of such a purchase is to extinguish the jote rights; thirdly, that a co-sharer cannot create in lands held is common, by letting them to cultivators as his tenant, any right of occupancy in the land; and fourthly, that no co-sharer can, as against his co-sharer, obtain a right of permanent occupancy in lands held in common. The first and second of these propositions merely state the effect of Sub-section (1) of Section 22, a purchase by a co-sharer being regarded as a purchase by all the co-sharers with the consequence that all of them hold the subject-matter of the purchase as proprietors, Sub-section 2 deals with two different situations viz., (1) when the purchasing co-sharer does not let the lands and (2) when he does let them. In the first case he is entitled, as against his co-sharers, to retain possession subject to his payment to them of what is due to them. In the second case the person to whom the purchaser lets the land is to be "deemed to be" a tenure-holder or a raiyat, as the case may be although, but for this provision, he would not enjoy this status became, as observed by the Privy Council, a co-sharer cannot create in lands held in common, by letting them to cultivators as his tenants, any right of occupancy in the land.
4. The question before us comes within the first case, namely, when the purchasing co-sharer does not let the land. For how long is he entitled to hold it as against his co-sharers ? He has no right of permanent occupancy in it but the statute confers on him the right to hold it so long as he pays to his co-sharers what is their due. For how long is he entitled to pay his co-sharers their dues and retain possession of the land? The Privy Council answered that question in the same case. They stated that the period for which the co-sharers' dues are payable is "until partition has been effected and possession of the land falling on partition to the plaintiff has been delivered to him." In my view, the privilege accorded to a co-sharer purchaser by Sub-section (2) of holding the land which he has purchased subsists only so long as the land is held in common. If he parts with his interest in the proprietary interest, he loses his right to retain possession of any land held in common which he has purchased. This was expressly held in Bambahadur Lal v. Mt. Gungra Kuer, 7 P. L. T. 87 : (A.I.R. (12) 1925 Pat, 647). In Babu Ram Prasad v. Gopal Chand, 2 P. L. T. 163: (A.I.R. (8) 1921 Pat. 341), Jhapsi Sao v. Mt. Bibi Aliman, 5 Pat. 281: (A.I.R. (13) 1926 Pat. 263), Basudeo Narain v. Radha Kishan, 3 P. L. T. 22 : (A.I.R. (9) 1922 Pat. 62), it was held that a purchasing co-sharer is entitled to retain possession even after the land has been allotted to a former co-sharer on partition. These decisions are consistent with Bambahadur Lal v. Mt. Gungra Kuer, 7 P. L. T. 87 ; (A.I.R. (12) 1925 Pat. 547), only if it be held that the condition imposed by Sub-section (2) ceases to operate on partition. The only argument I have heard in support of this view is that otherwise the purchasing co-sharer would lose the money he had paid for the holding. In Sundermail v. Lachhmi Tewari, 19 Pat. 893 : (A.I.R. (27) 1940 Pat. 467 F. B.), it has been pointed out that this is a risk which the purchasing co-sharer takes and which he may be assumed to allow for when making his purchase.
5. To me it seems that the correct construction of this sub-section has been unnecessarily complicated by describing the position of the purchasing co-sharer as the holder of a "peculiar" or "anomalous" tenancy. An examination of the other provisions of the Act, however, shows clearly that he is neither a tenant nor is the land which he holds as purchaser a holding within the meaning of the Act. Section 3 (3) defines 'tenant' as a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person. In the case of a person holding land under co sharer proprietors, 'tenant' means a person who holds land under the entire body of co-sharers. A co-sharer proprietor in possession of land belonging to all the co-sharers cannot be said to be holding under the entire body of co-sharers, for, so far at least as his own interest is concerned, he cannot hold under himself.
6. Then again, 'holding' has been defined in Section 3 (9) as a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. But a person cannot be both a co-proprietor and a raiyat at the same time in respect of the same land or interest.
7. A consideration of the definition of the words "holding" and "tenant" in the Tenancy Act, therefore, leads to the conclusion that land in the possession of the co-sharer is not a holding and that the co-sharer is not a tenant in respect of it. The true position appears to be as stated by the Privy Council in the case, namely, that on a purchase of an occupancy holding by a co. sharer, the purchase must be regarded as being for the benefit of all the co-sharers. But for Sub-section (2), Sub-section (1) would apply and the land would then be held by the entire body of co-sharers as proprietors and not as tenants. The effect of Sub-section (2) is to give statutory recognition to the other proposition laid down by their Lordships, namely, that the purchasing co-sharer is entitled to retain possession of the land which he has purchased on payment to his co-proprietors of their shares of what is payable for exclusive use of the land. And, as held in Bambahadur Lal v. Mt. Gungra Kuer, 7 P. L. t. 87: (A.I.R. (12) 1925 Pat 547), this right exists only so long as the purchaser remains a cosharer. On partition he ceases to be a cosharer and his right to possession as against the person to whom the land is allotted on partition also cases. The observation of Kulwant Sahay J. to the contrary in the case last mentioned must be attributed to the fact that he was bound by the decisions in Babu Ram Prasad v. Gopal Chand, 2 P. L. T. 163: (A.I.R. (8) 1921 Pat. 341), Jhapsi Sao v. Bibi Aliman, 5 Pat, 281: (A.I.R. (13) 1926 Pat. 263) and Basudeo Narain v. Radha Kishan, 3 P. L. T. 22: (A.I.R. (9) 1922 Pat. 62).
8. In view of the provisions of Section 26N of the Act it makes no difference whether the land in question constitutes a transferable or non-transferable holding provided the purchase was, as in this case, prior to 1st January 1923.
9. I would answer both questions referred, to us in the negative, but as my learned brothers take the contrary view the Court's answer will be in the affirmative.
Meredith, J.
10. The questions which have been referred to this Full Bench are:
1. Do the provisions of Section 22 (2), Bihar Tenancy Act as amended in 1907 entitle a cosharer landlord, who has purchased a non-transferable or a transferable occupancy holding between the yean 1907 and 1923, to retain it in his possession as his purchased land on a partition taking place between him and his cosharers ?
2. Were the cases of Jhapsi Sao, 5 Pat. 281: (A.I.R. (13) 1926 Pat. 263), Babu Ram Prasad, 2 P. L. T, 163: (A.I.R. (8) 1921 Pat. 341) and Basudeo Narain, 3 P. L. T. 22 ; (A.I.R. (9) 1922 Pat. 62), correctly decided assuming that the acquisitions of the occupancy holding were made after 1997 in those cases ?
11. Section 22 (2) as amended in 1907 runs 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."
12. The answer to the first and main question referred to us depends upon the status of the purchasing co-proprietor and the nature of his rights, since the effect of a partition is not to create or extinguish rights, but to distribute them. Unfortunately it is on just this point that the provision 13 silent and incomplete. To quote the learned author of S. C. Sen's Bengal Tenancy Act:
"the alterations made in this sub-section have created a grout anomaly; for it is net laid down anywhere as to what will be the status of a cosharer (to whom an occupancy holding is transferred) in relation to the other cosharers."
13. The question, I think, reduces itself to this. Does the purchaser get by his purchase a tenancy right of some anomalous kind, as has been held in many cases, or is the purchase merely an acquisition to the bakasht of the estate ? In 1943, in Anand Prasad Singh v. Medni Prasad Singh, 23 Pat. 291: (A.I.R. (31) 1944 pat 313), I stated the view on the question which I then held. I have tried, however, in again considering the matter and the arguments addressed to us to keep an open mind, not always an easy thing to do. Whether I have succeeded in doing so or not, I have arrived at the same conclusion as I did then. I summed up my opinion in that case in these words:
"The legal position seems to me to be that pending acceptance or reaction by the co-owners of the right to contribute and share in the benefit, the purchasing co-owner is merely holding the land in trust for all the owners, and during that period it may be that he is not a tenant. To that extent the decision of the Full Bench is, I think, correct. I agree that, having regard to the pre-1907 provisions of Section 22 and the general law as stated by the Privy Council in the Midnapur Zamindari case, 51 C. 631 : (A.I.R. (11) 1924 P. C.
144), a co-proprietor purchasing before 1907 did not thereby become a tenant of his co-proprietors. On the contrary, his purchase gave him merely an equitable lien on the land. But, in my opinion, upon his recognition as a tenant by his co-proprietors either expressly or by necessary implication or upon his taking a fresh settlement from them, a new tenancy is created.
I can find nothing at all either in the Act or in the general law or in the Privy Council decision referred to, inconsistent with this view. The nature of the tenancy, like the tenancy created immediately on purchase under the new section, may be anomalous. Its holder may not be exactly a tenure-holder or exactly a raiyat. But the anomaly is the creation of the statute.
Upon the point of recognition it must not be forgotten that in this country a tenancy is undoubtedly created by use, occupation and recognition. If a man cultivates the zamindar's lands and the zamindar lets him, there is an implied contract between them, creating the relationship of landlord and tenant; Nityananda Ghose v. Kissen Kishore, (1864) W. R. Act 10 Rul. 82, quoted with approval in Azim Sirdar v. Ram Lal, 25 Cal. 324. This has been consistently followed by the Courts. Upon the question of proof of title by evidence of recognition the decision of the Privy Council in Chandra Churdeo v. Laldhari Prasad Singh, 14 P. L. T. 57 : (A. I R. (19) 1932 P. C. 264), may also usefully be referred to".
14. These observations were mainly made in regard to the pre-1907 provisions of Section 22. But one thing, I think, is certain. Whether or not the 1907 amendment strengthened the position of the purchaser, at least it did not weaken it except in so far as it made it clear that the status of the purchaser was not that of a raiyat, Writing now I feel that perhaps I expressed myself ever emphatically or even dogmatically; nevertheless I am of opinion that what I said then was substantially correct.
15. As Section 22 (2) does not define the status of the purchaser, we have to look to the general law, and try and interpret the provisions in the light thereof. In this connection the relevant law will clearly be that of merger and that regarding the rights inter se of tenants in common and joint tenants. In examining the question, therefore, I propose to consider first the law of merger, and second the law relating to co-tenants. After that I shall consider the section in its historical aspect and the circumstances leading to the 1907 modification. Lastly, I shall consider the relevant rulings.
16. I think it can be laid down with some confidence that under the general law no merger will take place. The preponderance of opinion is unquestionably that, apart from statute, there is no law of merger in the mufassal in India. As far back as 1868 in Womesh Chunder v. Raj Narayan Roy, 10 W. R. 15, Sir Barnes Peacock C. J. said :
"My own impression is that the doctrine of merger does not apply to lands in the Mofussal (sic) in this country."
Jackson J. said in the same case:
"I most fully concur in all that has fall an from the Chief Justice in respect of the doctrine of merger. I am not aware of any solid foundation for the opinion that that doctrine is any part of our mofasaal law."
17. Conceding that there may be some doubt upon this point, it is at least clear that, if any law of merger is applicable, it is upon the principle laid down by the Privy Council in Robert Watson v. Ram Chand, 17 I. a. 110 : (18 Cal. 10 (P. C.), that where no specific rule exists, the Courts are to act under the Bengal Regulations according to "justice, equity and good conscience." Therefore, it will not be the English Common law of merger irrespective of intention, but the equitable doctrine that merger depends upon intention, and in the absence of evidence of intention upon benefit. Markby J. in Rushton v. Atkinson, 11 W. R. 485 said :
"Upon the question of merger, what the Judge would have to do, assuming the English law to be applicable, would have been not to apply the dry rule of English Common law, but the rule as modified by all the equities which an English Court of Chancery would import into the consideration of the case."
18. I do not intend to refer to the large number of decisions cited before us on the question of merger in India. It will be enough to cite one Privy Council decision in support of what I have just stated. It is Dulhin Lacchanbati Kumari v. Bodh Nath Tewari, 26 C. W. n. 665: (A.I.R. (9) 1922 P. C. 94). Their Lordships queried whether prior to the Transfer of Property Act there was a law of merger applicable in the mufassal, and went on to say :
"But, it the doctrine of merger is appealed to, that doctrine must be taken as it stands. Merger is not a thing which occurs ipso jure upon the acquisition of what, for the sake of a just generalisation, may be called the superior with the inferior right. There may be many reasons--conveyancing reasons, reasons arising out of the object of the acquisition of the one right being merely for a temporary purpose, family reasons and others--in the course of which the expediency of avoiding the coalescence of interest and preserving the separation of title may be apparent. In short, the question to be settled in the application of the doctrine is, was such a coalescence of right meant to be accomplished as to extinguish that separation of title which the records contain ?"
19. I will quote also one English case, Ingla v. Vaughan Jenkins, (1900) 2 ch. 363 : (69 L. J. ch. 618). Therein it was laid down that:
"The principle applicable to the merger of charges in equity applies also to the merger of leases. The Court is guided by the intention ; and, in the absence of express intention, either in the instrument or by parol, the Court looks to the benefit of the person in whom the two estates become vested."
20. The rule of merger in India in regard to non-agricultural cases is laid down in Section 111 (d), T. P. Act. It his no application to the matter before us, but, if it had, there would be no merger thereunder since the provision is that a lease of immoveable 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.
21. It should now, I think, be apparent that when a cosharer landlord purchases a raiyati lease or interest in his own name for his own benefit there will be no merger under the general law for the conditions necessary to apply the rule of merger do not exist. The entire interests do not coalesce in the same hands and in the same right (unless the purchase can be regarded as a purchase of all the cosharers--a point with which I shall deal later). There is patently in these cases no merger when the purchaser intends to maintain his separate interest, or it is to his benefit that there should not be merger. If, there. fore, merger takes place, it is only by reason of and to the extent created by the provisions enacted in Section 22 itself.
22. Nor is any difficulty created by the fact that if there is no merger the same person will unite in himself the status of landlord and tenant ; for that is a position which is well recognised, and frequently found, where co-tenants are concerned. If there are three co-sharers, two may lease their shares to the third, and the position of the third will then be proprietor as regards one-third and lessee as regards the remaining two-thirds. Similarly, if one co-sharer takes a transfer of a leasehold interest under the three, if merger does not take place, he will become the lessee to the extent of two-thirds under his co-sharers.
23. Upon this point in Anand Prasad Singh v. Medni Prasad Singh, 23 Pat. 291 : (A.I.R. (31) 1944 Pat. 313), I quoted Freeman on Co-Tenancy. At p. 233 para. 156, be says :
"The purchase made by a co-tenant of an outstanding title or encumbrance is not void, nor does the interest so acquired by him, or any part of it, by operation of law, vest in his co-tenants. They may not wish to share in the benefits of his purchase ; for, in their judgment, the title purchased by him may not be paramount to that before held in common. The law gives them a privilege which they may assert. This privilege consists in the right to obtain a conveyance of the title bought in, upon their praying their share of the price at which it was bought. The privilege may be waived by an express refusal to reimburse the co-tenant for his outlay, or by such a course of action as necessarily implies such a refusal. The right of a co-tenant to share in the benefit of a purchase of a an outstanding claim, is always dependent on his having, within a reasonable time, elected to bear his portion of the expense necessarily incurred in the acquisition of the claim."
24. And again at p. 212, Para. 164, he says :
"The co-tenants are at liberty to contract with one another, in relation to all matters, including the subject-matter of the tenancy. One may lease his moiety to the other; and upon such leasing, the parties bear to each other the relations, are subject to the obligations, and entitled to the rights of landlord and tenant."
25. Similarly, in Fawcett's Landlord and Tenant, Edn. 8, p. 63, we find in regard to joint tenants :
"He (one joint tenant) may consequently lease his share either to another joint tenant, so as to create the relationship of landlord and tenant between them, with a right to distrain in respect of rent in arrear, or to a stranger."
26. And, in regard to tenants in common, he says on the same page :
"One tenant in common may demise his share to another .... A demise by all the tenants in common, though joint in its terms, operates as a separate demise by each of his own undivided share, and a confirmation by each of the demise of his companions' shares; and it is the same as to a joint lease by coparceners."
27. With regard to the position in India, I quote from "the Law of Landlord and Tenant in Bengal and Bihar" by Kanjit binba (Calcutta: E. Cambray and Company). The learned author says, at p 87 :
"No doubt a cosharer occupying a portion of an estate larger than his own share in the estate entitled him to hold (sic) may do so by arrangement with his co-proprietors by renting the excess lands, and again it is easy to imagine a case where the property in ft village might be divided amongst a very great number of share-holders, and one share-holder or a few shareholders might cultivate the whole at an agreed rent or rents. In such cases the cultivating share-holders might be treated as having a double character, and might be sued for the rent agreed by them to be paid to the other share-holders for the occupation of the land,"
The author refers to Cowper v. Fletcher, (1865) 34 L. J. Q. B. 187 : (13 W. R. 739) where, he says:
"it was held upon the authority of Lord Coke that joint tenants of land may agree to the creation of the relationship of landlord and tenant between themselves, and the possession held by one under such an agreement involves all the incidents of an ordinary tenancy by him to the others as joint landlords."
28. Cowper v. Fletcher, ((1865) 34 L. J. Q. B. 187 : 13 W. E. 739) was decided in 1865. The plaintiff and two defendants were co-executors under a will, and were also joint tenants of the property, and as Blackburn J. put it, the plaintiff wrote to the executors, "who, to speak literally, were himself and the defendants," and offered to take a lease of a timber yard and offices, and then the three executors including himself made an agreement for a lease. Blackburn J. said :
"I think it is clear that the parties were agreeing for a lease, and that we ought to give effect to it in this way, that the two defendants who were seised of two-thirds of the land, agreed to let to the plaintiff those two-thirds, and allowed him to have the exclusive possession of the remaining third, which was in him."
29. I have already referred to Ingle v. Vaughan Jenkins, (1900) 2 Ch. 368; (69 L.J. Ch. 618). Farwell J. said :
"In the first place, there was merely an agreement to grant a lease, and I know of no case in which such an agreement, which is specifically enforceable in equity, has been held to be merged or extinguished because the person entitled to the lease subsequently happened to fill the position of a lessor. For example, if a testator having agreed to grant a lease to J. Section . . devises the property to J. S for life with remainders over, J. Section can still enforce the agreement against the estate, although if he is the person in whom the power of leasing is vested he would have to grant the lease to himself."
29A. Another case that may be mentioned is Napier v. Williams, (1911) l Ch. 361 : (80 L. J. Ch. 298). C. R., a trustee and his co-trustees executed a lease in favour of himself with certain covenants. It was held that the lease was not void in law though the covenants by one person with himself and others were void.
30. After all this, it is perhaps unnecessary to draw attention to the fact that the principle in question is recognised in Section 22 itself in the Explanation to Sub-section (3) which runs :
"A person having a right to hold the lands of an occupancy holding as a raiyat does not lose it by subsequently holding the land as a temporary tenure-holder or farmer of rents f ."
This, be it noted, is inserted not as a positive legislation, but as an explanation.
31. It is not, however, enough to consider the position with regard to merger. The question of merger is one thing, and the question of the rights inter se as between co-sharers is another. If the purchase by one co-sharer is to be regarded as a purchase by all, then, generally speaking, the conditions for merger will be satisfied, and, in any event, merger will take place under the provisions of Section 22 (1) which definitely provide for it. The purchaser is to hold the land not as a raiyat but as a proprietor or permanent tenure-holder, as the case may be, Now, there is a recognised principle that a co-tenant, who purchases an outstanding title, will he held to have purchased for the benefit of all the co-tenants. This has been stated by the Privy Council in Midnapur Zamindary Co. v. Naresh Narayan Roy, 51 Cal. 631 : (A.I.R. (11) 1924 P. C. 144). Their Lordships said :
"Even if the Midnapur Company purchased any jote rights in lands held in common by the co-sharers, such a purchase would in law be held to have been a purchase for the benefit of all the co-sharers, and the jote right so purchased would by the purchase be extinguished."
32. That, however, is not the whole position. If it were, there would have been no need to enact Section 22 (2) separately from Section 22 (1), for the cases would have been the same. The statement just made seems to me to indicate the position where the cosharers have opted to participate in the purchase and the rights thereunder by contributing their share of the money expended. The complete position is, I think, as stated by Freeman, p. 232, Para. 154 :
"The purchase, is, notwithstanding his designs to the contrary, for the common benefit of ail the co-tenants. The legal title acquired by him is held in trust for the others, if they choose, within a reasonable time, to claim the benefit of the purchase, by contributing, or offering to contribute, their proportion of the purchase money."
I have already referred to Freeman's statement at p. 233, para. 156 :
"The purchase made by a co-tenant of an outstanding title or incumbrance is not void, nor does the interest so acquired by him or any part of it, by operation of law, vest in his co-tenants. They may not wish to share in the benefits of his purchase; for, in their judgment the title purchased by him may not be paramount to that before held in common. The law gives them a privilege which they may assert. This privilege consists in the right to obtain a conveyance of the title bought in, upon their paying their share of the price at which it was bought. The privilege may be waived by an express refusal to reimburse the co-tenant for his outlay, or by such a course of action as necessarily implies such a refusal. The right of a co-tenant to share in the benefit of a purchase of an outstanding claim is always dependent on his having, within a reasonable time, elected to bear his portion of the expense necessarily incurred in the acquisition of the claim." 33. At page 349, para. 263, Freeman says: "If an outstanding paramount title be purchased by one co-tenant, and the others fail or refuse to pay their share of the purchase price, the purchaser may indemnify himself by asserting the paramount title which he has so accquired "
34. As for Patna cases, in Gopi Singh v. Jagdeo Singh, 8 P. L. T. 69 : (A.I.R. (14) 1927 Pat. 172), Dawson-Miller. C. J. and Foster J. held that even under the old tenancy law prevailing before 1885 the doctrine of merger had no application to the case of a co-sharer proprietor purchasing raiyati jote lands, and in Parmeshwar Singh v. Sureba Kuer, 88 I. C. 495 : (A.I.R. (12) 1926 Pat. 530), Dawson Miller C. J. and Macpherson J. held that where a co-sharer landlord purchases the interest of a tenant, then, unless the purchase is made on behalf of all the co-sharers, the interests of the lessor and the lessee do not become merged in the purchaser. This was a case of a purchase prior to either the Transfer of Property Act, 1882, or the Bengal Tenancy Act, 1885, and Dawson Miller C. J. said :
"The law of merger as it then existed with regard to the interests of landlords and tenants was not the same as exists at the present day under the provisions of the Bengal Tenancy Act. Whether it was the same as was emoted in the Transfer of Property Act is not a matter which we need discuss, for even assuming that the law laid down in Section 111 (d), Transfer of Property Act was the same as that which previously existed, that section only applies to a case where the interests of the lessee and of the lessor in the whole of the property become vested at the same time in one person in the same right."
In the case before him Balgobind, the purchaser, was not the proprietor of the whole property. He merely had a one anna share in it, and the evidence was clear that he purchased for himself and not on behalf of his co-proprietors. On this point see also Imamuddin v. Mohd. Rashidul Haq, 4 P. L. J. 640 : (A.I.R. (6) 1919 Pat. 398). The co-proprietors may leave one of their member as a tenant under them provided he is inducted as such.
35. The true position, therefore, so far as the general law is concerned, seems to be that it will depend upon the attitude of the co-sharers whether merger does or does not take place. They may not want to share in the purchase, and they need not. But if they do not, the consequence will be that there will be no merger, and the title bought in may be asserted against them upon partition. But, if they do wish to participate, the purchaser cannot prevent them. If they offer to pay their share, he cannot assert the title to prevent merger, since the purchase will be regarded as a purchase for all. He can continue to hold the land, but it will be as a co-sharer, and not as a tenant. This will be on the principle that "where land in India is settled and held in common, each co-sharer is entitled, subject to paying compensation to the other co-sharers, to cultivate any part of it not being cultivated by them. The other co-sharers are not thereby ousted; their remedy, if they object, is to obtain a partition. No co-sharer can obtain or create in tenants a jote right or any right of permanent occupancy against the other co-sharers" (Priy Council in Midnapur Zamindari Co. v. Naresh Narayan Roy, 51 Cal. 631: (A.I.R. (11) 1924 P. C. 144).
36. The remedy of any co sharer, who is dissatisfied, is by suing for partition, and upon the partition all the equities will be adjusted. If the purchasing co-sharer has refused contributions to the purchase price, he will no longer be able to assert any title to the purchased lands. The lands will be partitioned as bakasht of the estate, though his right to contribution may be adjusted against his liability to pay compensation for use and occupation. On the other hand, if the co-sharers have refused to contribute, either expressly or by necessary implication, the purchaser at the partition will be able to assert his purchased title and insist upon retaining the land. The refusal to participate in the purchase will amount to a recognition by the co-sharers of the purchaser as their tenant. Even without partition, once the co-sharers have recognised the purchaser as a tenant rather than contribute, they will be able to sue him for their share of the rent.
37. An interesting case where the rights of co-tenants were considered is Leigh v. Dickeson, (1865) 15 Q. B. D. 60 : (54 L. J. Q. B. 18). The defendant, one of the tenants in common, had possession of the whole of a house by victue of a lease from his co-tenant in common. It was held that the defendant must be considered as holding exclusive possession upon the terms of the lease, and having continued in occupation after the expiration of the lease he was liable for rent at the same rate as was reserved by the lease. But having expended money on repairs of the house, he was held to have no right of counter-claim against his co-tenant for contribution. Brett M. R. said :
"Sometimes money hag been expended for the benefit of another person under such circumstances that an option is allowed to him to adopt or decline the benefit: in this case, if he exercises his option to adopt the benefit, he will be liable to repay the money expended ; but if he declines the benefit he will not be liable. But sometimes the money is expended for the benefit of another person under such circumstances, that he cannot help accepting the benefit, in fact that the is bound to accept it: in this case he has no opportunity of exercising any option, and he will be under no liability,"
The case was held to fall under the latter category. But it was pointed out that there was a remedy by way of partition, for, in a suit for partition in the Chancery Division expenditure between tenants in common would be taken into account. Cotton L. J. said;
"There is, therefore, a mode by which money expended by one tenant in common for repairs can be recovered, but the procedure is confined to suits for partition. Tenancy in common is an inconvenient kind of tenure; but if tenants in common disagree, there is always a remedy by a suit for a partition, and in this case it is the only remedy."
I cite there observations to show that when partition does take place there is nothing to prevent the equities between the cosharers being fully adjusted. If one tenant in common has purchased a holding at a heavy cost and has perhaps spent further large sums in improving it in the course of years, it would be highly inequitable that the holding should be assigned to different cosharers as lakasht upon partition without providing for compensation in the general distribution. But there is no reason why that should take place, and, in the circumstances, it would doubtless be held that there were good and sufficient reasons for assigning the purchased property to the share of the purchaser.
38. Now let us consider how the law is to be treated as modified by the provisions of Section 22. Section 22 (2), as originally enacted in 1885, ran 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."
Section 22 (1) was to the same effect:
"When the immediate landlord of an occupancy holding is a proprietor or a permanent tenure-holder and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, the occupancy right shall cease to exist, but nothing in this sub-section shall prejudicially affect the rights of any third person."
This section was enacted to prevent or discourage the acquisition of occupancy rights by land-lords. But it was not fully effective because in 1896 a Full Bench of five Judges of the Calcutta High Court held that the effect of the purchase by one co-owner of land of the occupancy right is not that the holding ceases to exist but only the occupancy right which is an incident of the holding (Jawadul Haq v. Earn Das Saha, 24 Cal. 148: (1 C. W. N. 166)) and in 1905 this decision was affirmed by another Full Bench of five Judges by a majority of four to one, Eampini J., dissenting (Ram Mohan Pal v. Sheikh Kachu, 32 Cal. 386: (1 C. L. J. 1 FB).)
39. The effect of these decisions was that the purchaser was regarded in some cases as a non. occupancy raiyat. He could, consequently, again acquire rights of occupancy, and, worse still, if he sub-let, his lessee would merely be an underraiyat with no permanent rights, To prevent this the amendments of 1907 were made, and as this was about the time of the partition of Bengal, amendments were separately made in Bengal and in Eastern Bengal and Assam. The difference in the two is, to my mind, highly significant. In Eastern Bengal the amended provisions were as follows:
"22. (1) When the immediate landlord of an occupancy holding is a proprietor or permanent tenure-holder, and the entire interests of the landlord and the raiyat, in the holding become united in the came person, such person shall have no right to hold the land as a raiyat but shall hold it as a proprietor or permanent tenure-holder (as the case may be); but nothing in this sub-section shall prejudicially affect the rights of any third person.
(2) If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure holder, such person shall have no right to hold the land as a raiyat, but shall hold it as a proprietor or permanent tenure-holder, as the case may be, and shall pay to his cosharers a fair and equitable sum for the use and occupation of the same."
40. The Bengal amended provisions were:
"22. (1) When the immediate landlord of an occupancy holding is a proprietor or permanent tenure-holder, and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, such person shall have no right to hold the land as a tenant, but shall hold it as a proprietor or permanent tenure-holder (as the case may be); but nothing in this sub-section shall prejudicially affect the rights of any third person.
(2) 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.
Illustration; A, a cosharer landlord, purchases as occupancy holding of a raiyat, X, A is entitled himself to hold the land on payment to his cosharers of the shares of the rent payable to them in respect of the holding. A sub-lets the land to Y, who takes it for the purpose of establishing tenants on it; Y becomes a tenure-holder in respect of the land. Or A sub-lets it to Z, who takes it for the purpose of cultivating it himself, Z becomes a raiyat, in respect of the land."
41. As regards Sub-section (1), there is only slight difference between the two. In Eastern Bengal it was stated that such person could have no right to hold the land as a raiyat, whereas in Bengal the words used were "as a tenant", making it even clearer that it was intended that there should be merger and no tenancy, as was indeed clear, in any event, from the expression ''but shall hold it as a proprietor or a permanent tenure-holder, as the case may be".
42. Now consider Sub-section (2). If it was intended that here also there should be no tenancy, but that the purchaser should hold as a cosharer, there would have been nothing easier than to any so and the Legislature would have surely said so in view of the fact that it had said so expressly in Sub-section (1). Moreover, in Eastern Bengal the Legislature did say so. In Sub-section (2), also Eastern Bengal provided that the purchaser would hold the land as proprietor or permanent tenure-holder, as the case may be; that is to say, as a cosharer. When there was no such provision in the Bengal enactment, the omission must have been deliberate. The use of the word "rent" instead of ''compensation" must also have been deliberate; for in Eastern Bengal the wording was "and shall pay to his cosharers a fail and equitable sum for the use and occupation of the same".
But in Bengal the wording was "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."
In these circumstances the omission to provide that the land would be held as a cosharer, and the use of the word "rent" as opposed to the words used in Eastern Bengal can, in my opinion, only mean that it was deliberately intended to provide that the purchaser should hold as a tenant of some sort under his cosharers. the object of the amendment was to ensure that the purchaser could not acquire the status of an occupancy raiyat so as to make his own sub lessees under-raiyats. But it seems to be evident, having regard to the wording employed as opposed to the wording in Eastern Bengal, that it was intended at the same time to secure to the purchaser the benefits of his purchase in some sort of tenancy rights while preventing the reduction of the actual cultivators to the status of under-raiyats. It was intended, in my opinion, that the lands by the purchase should not become bakasht.
43. That this view is correct is, I think, placed beyond doubt by a reference to the notes on clauses of the Bengal Tenancy Amendment Bill, 1906, and the report of the Select Committee. In this report it is stated:
"The amendments made by them in the section will give effect to the intention of the framers of the Act by providing that where a sole landlord acquires an occupancy holding of his raiyat, the interests of such landlord and tenant merge into a landlord's interest; and that where one of the several cosharer landlords or joint tenure-holders acquires an occupancy right of a tenant of all the cosharers or joint tenure-holders, such landlord cannot thereby acquire an occupancy right or by sub-letting bar the acquisition of raiyati rights by the sub-lessees. At the same time under the section, as modified by us, the landlord will not be prevented from cultivating the land himself, though the holding will not become proprietor's private land."
The italics are mine, and I wish to emphasise the statement "the holding will not become proprietor's private land" because I can place only one interpretation on it, namely, that it was intended, that the land by the purchase should not become bakasht of the proprietors, but should remain tenanted land. The words used also show beyond doubt that the intention was to provide for merger in Sub-section (1) but to prevent it in Subsection (2).
44. Commenting on this amendment, Mr. S.C. Sen in his Bengal Tenancy Act says:
"Is such cosharer purchaser a tenant? It seems to be so, for a tenant means a person who holds land under another person and is. ...... Liable to pay rent for that land to that person (Section 3, Clause (3)). Now such cosharer transferee according to Sub-section (2) of Section 22 holds land under his cosharers and is subject to the payment of rent to the latter. Accordingly, he must be a tenant under his cosharers."
45. It is interesting to notice that in 1928 there was a further amendment in Bengal, and this provided:
"Nothing in this section shall prevent the acquisition by transfer, succession or in any other way whatsoever o£ the holding of an occupancy raiyat or share or portion thereof together with the occupancy rights therein by a person who is or who becomes jointly interested in the lands as a proprietor or a permanent tenure-holder:
Provided that a cosharer landlord who purchases a holding of a raiyat at a sale in execution of a rent decree or of a certificate under this Act shall not hold the land comprised in such holding as a raiyat, but shall hold the land as a proprietor or tenure-holder, as the case may be, and shall pay to his cosharer a fair and equitable sum for the use and occupation of the same. The rent payable by the raiyat to the other cosharer landlords at the time of the transfer shall be regarded as the fair and equitable sum until otherwise determined in accordance with the principles of this Act regulating the enhancement or reduction of the rents of occupancy raiyats."
46. That is to say, Bengal has since provided that a cosharer landlord can acquire an occupancy right and set it up against his cosharers except in the case where he has purchased at a sale in execution of a rent decree.
47. There is no word in Section 22 (2), as amend. ed in 1907 in Bengal, to suggest merger, while in Sub-section (1) merger was clearly provided for, and in Sub-section (2), as enacted in Eastern Bengal about the same time, merger was also clearly provided for. I hold, therefore, that the provision of law which we have to interpret not only does not modify the general law in favour of merger, but plainly suggests an intention to the contrary. It must be interpreted, in my view, as providing for the transfer by the purchase of a tenancy right, apart from an occupancy right, to the purchasing cosharer. Its effect upon the general law is to take away the right of the co-sharers to participate in the purchase, so that in effect there will be a tenancy immediately upon the purchase, and not only when the cosharers refuse to participate by contribution, or recognise the tenancy as was the case prior to 1907.
48. It is well settled that a cosharer in possession cannot create a ratyati interest by sub-letting.
"No cosharer can as against his cosharers 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 his tenants any right of occupancy of the lands in them" (Privy Council in Midnapur Zamindary Co. v. Naresh Narayan Roy, 61 Cal. 631 : (A.I.R. (11) 1924 P. C. 144).) But the cosharer purchaser under Section 22 (2) can do so. Surely it follows from this that he is not merely a cosharer proprietor in exclusive possession of bakasht. The section expressly provides that where be sub-lets his lessee shall be deemed to be a tenure-holder or a raiyati as the case may be in respect of the land. Ho can, in other words, create a raiyati right by sub-letting. This, to mind, is only consistent with the existence of some intermediate right, whatever it may be called, between the cosharer proprietors as a body and the sub-lessee. If that sub-lessee becomes a raiyat, he must be regarded as a raiyat of all the cosharers, otherwise the position would be hopelessly anomalous. He has never obtained a lease from all the cosharers, but only from the purchaser, and that, I think, is why the word "deemed" is used, though, inconsistently enough, in the illustration the word is used "becomes."
49. I shall now deal with the rulings. The position is this, that in every single case, and there are many, where the position of the purchasing cosharer upon partition, under the provisions of Section 22 (2). as amended in 1907, has been considered it has been held that his rights do not cease. There is not a single case to the contrary. In Balu Ram Prasad v. Gopal Chand, 2 P.L. T. 163; (A.I.R. (8) 1921 Pat. 341), Jwala Prasad, J. held that a co-proprietor acquiring an occupancy holding by purchase is entitled to retain possession of it on payment of rent to his cosharers. The mere fact that the estate in which the holding is situate is partitioned among the co-proprietors and the holding is allotted to some other co-proprietor would not entitle the latter to eject the co-proprietor who had purchased the holding. The learned Judge says:
"The section clearly empowers a co-proprietor to hold possession of the kashi land purchased by him, the only condition imposed upon him being that he should pay rent therefor to his cosharers. There is no limit of time of his possession, nor is it controlled by any event, such as the partition of the estate. If his possession was to remain only for so long as the estate was not partitioned, it would have been clearly and unmistakably expressed by the Legislature"
He noticed that in the case of Babu Ram Dheng v. Upendra Nath Kotey, 44 I. C. 922 : (A.I.R. (5) 1918 Cal. 968), it was pointed out that the change in Clause (2) by the Amending Act of 1907 did not seem to have altered the position as previously understood that a fractional landlord Who gets a transfer of an occupancy holding still acquires from the raiyat some sort of tenancy or intermediate interest which prevents him from treating the under-raiyat as a trespasser.
50. In Nand Kishore Singh v. Mathura Sahu, 3 P. L. T. 13 : (A.I.R. (9) 1922 Pat. 193). Jwala Prasad A. C. J. and Das J. held that a cosharer landlord who purchases an occupancy holding and becomes liable to pay proportionate rent to the other cosharers under Section 22 (2), Bengal Tenancy Act, cannot be ejected from the purchased holding when it is, upon a subsequent-Collectorate partition, allotted to the takhta of another co- proprietor.
51. Again in Basudeo Narain v. Radha Kishan, 3 P. L. T. 22; (A.I.R. (9) 1922 Pat. 62), Das and Adami JJ. laid down that when a cosharer purchases the holding of an occupancy raiyat, and upon a Collectorate partition the holding is allotted to the takhta of another cosharer, the tenancy right continues, and the holding does not cease to exist. It is true that this case related to the section as it stood prior to 1907, but it is impossible to hold that the amendment of 1907 detracted from the position of a cosharer purchaser except in preventing his acquiring the status of a raiyat, and it has been held by the Calcutta High Court in Babu Ram Dheng v. Upendra Nath Koley, 44 I. C. 922: (A.I.R. (5) 1918 Cal. 968), that the change made in Section 22 (2) by the Amending Act of 1907 has not altered the law as previously understood, in so far as the fractional landlord, who gets a transfer of an occupancy holding, still acquires from the raiyat some sort of tenancy or intermediate interest.
52. In Bam Bahadur v. Gungra Kuer, 7 P. L. T. 87 : (A.I.R. (12) 1925 Pat. 547), Ross and Kulwant Sahay JJ. said that the status of the cosharer purchaser under Section 22 (2) is a peculiar status which attaches to the cosharer as long as be remains a cosharer. If he ceases to be a cosharer and his proprietary interest is lost, he has no right to retain possession of the land, and it would be passed on to the person who acquires the interest of that cosharer. In my view that is wrong. If I am right in the interpretation of the section, the interest is cot dependent upon retaining the status of a cosharer, because it is an anomalous tenancy interest. However that may be, in this case the position of the purchaser upon partition was distinguished upon the ground that after partition the interest of the cosharer did not cease. He continued to he a proprietor after the partition, and hence it was held that he is entitled to retain possession. This reasoning, in my opinion, is again wrong, but the fact remains that the Bench apparently agreed with the decisions in Babu Ram Prasad v. Gopal Chand, 2 P. L. T. 163 : (A.I.R. (8) 1921 Pat. 341) and Nand Kishore Singh v. Mathura Sahu, 3 P. L. T. 13 : (A.I.R. (9) 1922 Pat. 193).
53. In Japsi Sao v. Bibi Aliman, 7 P. L. T. 170 : (A.I.R. (13) 1926 pat, 263), Das and Rosa JJ. held that the allotment of certain lands by the revenue authorities as bakasht lands does not estop the cosharer holding direct possession of the said lands under Section 22 (2), Bihar Tenancy Act from continuing to keep them in his khas occupation on payment of rent to the cosharer to whose takkia they have been allotted. Section 22 (2), Bihar Tenancy Act, confers a privilege on the purchasing cosharer which is in derogation to the common law right of the other cosharers, and that privilege subsists and is not taken away by a partition amongst the cosharers and the allotment of the purchased land to the takhta of one of the other proprietors. Section 22 (2) imposes a limitation upon the rights of the cosharers for the benefit of the purchasing cosharer, and there is no reason why this limitation should be removed by reason only of a partition taking place. With this decision I respectfully agree.
54. In Dhaneshwari Kuer v. Chandradhari Singh, 17 P. L. T. 97: (A.I.R. (23) 1936 Pat. 317), Courtney-Terrell C. J. and Dhavle J. held that Section 22 (2), Bengal Tenancy Act entitled a co-proprietor to hold the raiyati lands purchased by him subject to the payment of rent as mentioned in Clause (2) after he has ceased to be a co-proprietor by reason of partition. 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 raiyat whose place is taken by the purchasing co-proprietor. With this decision also I respectfully agree.
55. In Naga Rai v. Buchi Rai, 18 P. L. T. 173, Courtney-Terrell C. J. and James J., confirmed in Letters Patent Appeal a decision, of Wort J. in which he had held inter alia that the purchaser under Section 22 (2) was entitled to maintain his purchased rights after partition.
56. In Sukhdeo Pandey v. Rameshwar Prasad, A.I.R. (26) 1939 Pat. 522 : (185 I. C. 557), Rowland J. sitting with Chatterji J., said :
"Undoubtedly it is a correct proposition of law that when a cosharer proprietor acquires a holding of an occupancy raiyat, the holding does not cease to exist."
Basudeo Narain v. Radha Kishan, 3 P. L. T. 22 : (A.I.R. (9) 1922 Pat. 62) was referred to, and not dissented from, but the learned Judge went on to say that the question before him was different. He had to consider the position where the purchaser had parted by sale with his proprietary interest in the tauzi, and the question was whether the purchased right would pass to the purchaser along with the share in the tauzi. He followed Bam Bahadur Lal v. Mt. Gungra Kuer, 7 P. L. T. 87 : (A.I.R. (12) 1925 Pat. 547) and held that the status was a peculiar status which attached to a cosharer as long as he remained a cosharer, and on sale the interest would pass on to the person who acquired the interest of the cosharer. Here, in my opinion, he wag wrong, If there are independent rights co-existing in the purchaser, there seems no reason in principle why upon the sale of one the other should pass with it.
57. I now turn to cases which do not directly decide what happens on partition, but nevertheless have an indirect bearing upon the question. Miss G.B. Solano v. Maharaj Kumari Umeshwari Kuer, 16 Pat. 603 : (A.I.R. (24) 1937 Pat. 506) was a case where the cosharer purchaser had inducted certain tenants upon the purchased holding, and it was held that he was liable to pay to his co-sharer the share of the rent of the original occupancy holding, and not the rent payable in respect of the tenancies that might have been created by him. It was argued that the use of the words "which may be from to time payable to them" was an indication to the contrary, but Dhavle J., in his judgment thought that these words were intended to go not with the rent, but with the shares, and the reference was not to possible variations in the rent, but possible variations in the shares. It was also considered that the words might have been used because rent is always payable periodically.
58. I now come to two unreported cases, the first Second Appeal 124 of 1945, decided on 1st April 1947, Suraj Pal v. Ramgati, (reported in A.I.R. (35) 1948 Pat. 239). One co-sharer aged the purchasing co-sharer for rent. The purchaser had again settled the land. The defence was that the rent had been reduced by the Rent Reduction Officer, and he was liable to pay rent at that rate to the plaintiff for his proportionate share, and not at the original rate. It was held that the sub lessee was not a necessary party, and Imam J. said that his impression of the section was that, no matter what the purchasing cosharer does by way of sub letting the land to a third person vis-a-vis himself and his cosharers, his liability to pay the shares of rent to his cosharers remains unaffected, and the rent payable was the share of the original rent.
59. The second case is Second Appeal 1865 of 1945 decided by Manohar Lall and Bamaswami JJ. on 29th August 1947, Jadupravamitra v. Rai Bato Behari, (reported in A.I.R. (35) 1948 Pat. 202). Here the cosharer purchasers, defendants 1 to 8, had settled portion of the land with defendants 10 and 11. The claim was for produce rent. Defendants 10 and 11 urged that the plaintiffs were not entitled to realise rents from them, and that they had already divided the produce with defendants 1 to 8. A money decree was given against defendants 1 to 8. It was argued that the phrase, "shall be deemed to be a raiyat" ought to be construed as "shall be deemed to be a raiyat vis a vis the purchasing proprietor, but not vis a vis the remaining proprietors." Ramaswami J. said that such a construction would be unreasonable and not in accordance with the policy and object of the statute, and this restrictive meaning should not be given to the word 'raiyat.' The sub-lessee must be held to be a raiyat under the whole body of landlords; but, though this was so, it was farther held that defendants 10 and 11 having paid rent to defendants 1 to 8 could not be required to pay rent again to the plaintiffs. The purchasing cosharers were liable to pay the entire compensation to the plaintiffs. (The word ''compensation" was used because of the decision of the Full Bench in Sunder Mull v. Lachmi Tewari, A.I.R. (27) 1940 Pat. 467: (19 Pat. 893 F. B.). Manohar Lall J., referred to the use of the word "deemed," and he said:
"We must assume that the sub-lessee must be treated as if he were a raiyat, but the other cosharer landlord could not look to him for payment of rent. The sub-lessee was bound to pay the entire rent to the cosharer who had settled the land with him, and could not be heard to say that the person who settled the land with him was only a cosharer, and so entitled to receive his share of the rent only."
60. Surya Mohan Thakur v. Arjun Rai, A.I.R. (35) 1948 Pat. 38 : (1948 P. W. N. 22), was decided by Bennett and Beevor JJ. The plaintiff, a cosharer landlord, had purchased the holdings of defendants l and 2 in execution of decree for arrears of rent, and subsequently he settled part of the land with defendant 3 who thereby became a raiyat. This was the position when the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938 (Bihar Act IX [9] of 1938) came into force. Defendants l and 2 made an application under that Act for restoration of possession over the entire holding, and were given delivery of possession. Defendant 3 objected. The order was revised, and the portion settled with defendant 3 was excluded. The plaintiff then sued defendants 1 and 2 for the entire rent. Defendant 3 intervened. The question was raised whether the plaintiff was entitled to recover from defendants 1 and 2 the 16 annas of their rent or only a share proportionate to his landlord's interest which was 6 aunas and odd. It was held that defendant 3 had become a raiyat in the full sense with a separate holding, and thereafter defendants 1 and 2 had nothing to do with his holding. What was restored to them would form a separate holding. After restoration defendants 1 and 2 became raiyats of that holding. The plaintiff was entitled to a decree for rent against defendants 1 and 2 for their restored lands, and he was entitled to 16 annas of that rent as sole landlord, the defendant not being liable to pay to his cosharers. The same principle was held to apply in the case, of a raiyat restored to possession of his entire holding after restoration. It was decided that he should pay rent to the purchasing cosharer and not to the entire body of landlords.
61. We get two things from these cases: (1) that, when the purchasing cosharer sub-lets, his sub-lessee gets the full rights and status of a raiyat and, with respect, I think that is the only possible view. Anything else would destroy the whole effect intended by the Legislative and reduce the sub-lessee to a mere trespasser vis a vis the remaining cosharers; and (2) that though a sub-lessee has the rights of a raiyat, he is liable to pay rent only to the purchasing co-sharer. The remaining cosharers cannot sue him for rent, nor can they sue the purchasing co-sharer for their proportionate share of the sub-lessee's rent, but only for their share of the original rent of the holding. That also seems to be the correct view.
62. To me it seems that these two positions are only consistent with the existence of some intermediate interest in the bands of the purchasing cosharer, otherwise the sub-lease being a raiyat vis a vis all the landlords, all the landlords will be entitled to sue him for rent, and each will be entitled to the proportionate share of the new rent, I consider, therefore, that these four rulings afford authority for the view that there is an intermediate tenancy of some sort.
63. This view is further supported by the fact that the purchasing cosharer can, under the section, create a fresh raiyati interest, which as a mere cosharer he could not do. (See Midnapur Zamindari Co. v. Naresh Narain Roy, 51 I. A. 293: (A.I.R. [11] 1924 P. C. 144) and Kaniz Fatma Bibi v. Hussainuddin Ahmed, 22 Pat. 382: A.I.R. (30) 1943 Pat. 194 F. B.). ) ("No co-sharer can as against his co-sharers obtain any jote rights or rights of permanent occupancy in the lands held in common nor can be create by leasing the lands to cultivators as his tenants any right of occupancy in the lands in them"). The purchaser can do a thing which only the entire body of landlords can ordinarily do. His position is therefore not merely that of a cosharer in exclusive possession, but rather that of one having the entire landlord's powers in himself in this regard. This must, I consider, mean that he holds some sort of intermediate landlord's interest. It is undoubtedly an anomalous status. It is certainly not that of a temporary tenure-holder under the other co-sharers, because a temporary thikadar has no such right. ("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 the lands held by him as a middleman". Midnapur Zamindari Co. v. Naresh Narayan Roy, 48 I. A. 49 at p. 55: (A.I.R. (9) 1922 P. C. 241) and also Midnapur Zamindary Co. v. Naresh Narayan Roy 61 I. A. 293: (A.I.R. (11) 1924 P. C. 144) ). If, however, the view be adopted that it was intended by the section to confer, some sort of permanent rights upon the purchasing cosharer, the anomaly largely disappears for there is nothing violently opposed to principle if a person with permanent rights of tenure creates a raiyati interest below him.
64. I shall now deal with two arguments put forward as objections to the view which I hold. The first is baaed en the use of the words in Section 22 (2) "shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holders etc". It is suggested that the use of these words suggests that the status was only intended to last until partition because after partition there will be no co-proprietors or joint tenure-holders.
65. The answer to this argument is, I think, that in the contest these are the only words that could have been used. They relate to the payment of the cosharers' shares of the rents to them. This state of affairs can only exist while there are cosharers. After partition there will be no question of any further such payments irrespective of whether the purchasing cosharer continues to hold the land or not; because if the land is allotted to him upon partition, as, I think was what the Legislature intended should be done then there is no question of his paying any further rent to any one; while, if it is allotted to some of the cosharers, then though he may continue to hold the land as a tenant, the rent payable by him will not be any shares, but the whole rent--a different matter--for then the entire proprietary interest including his own share therein will have passed at the partition to some one else, and what that person will be entitled to is clearly the whole rent of the original holding.
66. The other difficulty is the Midnapur Zamindari case, 511. A. 293: (A.I.R. (11) 1924 P. C. 144), to which I have already referred BO many times. In the course of their judgment their Lordships said:
"Even if the Midnapur Company purchased any jote rights in lands held in common by the cosharers, such a purchase would in law be held to have been a purchase for the benefit of all the cosharers, and the jote right so purchased would by the purchase be extinguished."
67. The question is, is there anything here inconsistent with the view that the rights of the purchasing cosharer under Section 22 (2), as amended in 1907, are not terminated by partition ? The first thing to notice is that, if their Lordships were referring to Section 22 (2) at all, it must have been to the section as it stood be. fore 1907, because it is clear from the statement of facts, that in so far as the Midnapur Company claimed any jote rights by purchase, they were purchases long before 1907, since the plea of jote rights was one which the Midnapur Company had originally raised in the previous suit of 1902; and indeed the case was decided upon the view that the absence of any jote right was res judicata by the decision of 1902.
68. The position, therefore, is this. The Privy Council must undoubtedly have been aware that two Fall Benches of five Judges each in the Calcutta High Court held that on the purchase only the occupancy rights cease to exist, and the holding divested of that incident subsists. Is it conceivable that the Privy Council could have intended to overrule these decisions without even referring to them? Surely not. Therefore, when the Privy Council said that the jote rights so purchased would by the purchase be extinguished, their Lordships can only have been referring to the extinction of the occupancy rights for which the pre-1907 section provided. Then, with regard to their statement that the purchase would be held to have been a purchase for the benefit of all the cosharers that, in my opinion, was merely a statement of the general law, which was to that effect. But their Lordships did not say that the cosharers would be entitled to this benefit without contribution, or that they would be forced to participate in the purchase and would have no option to refuse. The Privy Council in this judgment quoted with approval from Eobert Watson v. Ram Chander Dutt, 17 I. A. 110: (8 Cal. 10 P C.). In that case the Privy Council through the mouth of Sir Barnes Peacock had said ''Nor can one tenant in common be allowed to appropriate to himself the fruits of another's. ...... capital". Is it conceivable that the Privy Council meant to overrule this without expressly saying so ? Again, surely not. I feel confident that the Privy Council in the Midnapur Zamindary case, (51 Cal. 631: A. I. R (11) 1924 P. C. 144) did not intend to say anything with regard to the rights of a purchasing cosharer under the 1907 amendment, with which they were not concerned in the case before them.
69. In the question referred to us we have been asked to state the position not only with regard to purchase of transferable holdings, but also of non-transferable holdings. In a number of rulings, it has been laid down that Section 22 (2) has no application to the purchase of non transferable holdings. It will suffice to refer to one, Lachmi Narain v. Ram Saran, 10 P. L. T. 204: (A.I.R. (16) 1929 Pat. 185) where Ross and Chatterji JJ. held that Section 22 (2), Bengal Tenancy Act has no application to non-transferable holdings, and that the language of this sub section has not been altered in this respect by the amendment of 1907. They further held that where a cosharer landlord purchases a non-transferable occupancy holding, his purchase is valid to the extent of his interest, but he cannot force the purchase on his cosharers who are entitled to joint possession with him to the extent of their shares.
70. There can be no doubt that Section 26N was intended to be retrospective and applied to purchases by cosharer landlords (see Miss G.B. Solano v. Maharaj Kumari Umeshwari Kuer, 16 Pat. 500: (A.I.R. (24) 1937 Pat. 506)., So the question probably will not arise in the case in which this reference has been made. Nevertheless, I shall state my opinion. In the case of a non-transferable holding, the sale by the raiyat will be equivalent to abandonment; but, where the purchase is by a cosharer landlord, consent must be deemed to have been given to the extant of his share. To the extent of their own shares the cosharer landlords will undoubtedly be entitled to treat the holding as abandoned and, consequently bakasht. It will be bakasht in the possession of the purchasing cosharer, and the latter will be merely a cosharer in exclusive possession. The cosharers, however, will have no right to oust him. Their remedy will be by a suit for partition, and at a partition the purchasing cosharer will be able to set up no special rights in regard to their shares of the land. But once the cosharers do anything which can be interpreted as a recognition of the purchase, they must be deemed to have consented to the transfer, and in that case the purchaser will get the full rights conferred by Section 22 (2); for example, if they accept their shares of the rent from him, that would be an assent to the transfer. Mere refusal on their part to participate in the purchase by declining to contribute their share of the purchase price would in this case not be a recognition of the purchase as it would be quite consistent with an intention not to treat the purchaser as their tenant but to insist on their rights to trust their shares of the holding as bakasht upon abandonment.
71. To sum up, ray answer to the first question is an unqualified affirmative in the case of purchase of transferable holdings, and an affirmative only in the circumstances I have indicated where the purchase is of a non-transferable holding. As for the second question, it is merely consequential upon the first, and I do not think any separate answer is needed, as the answer to the first question answers the second also, in the affirmative.
Narayan, J.
72. I have had the advantage of reading the judgments of my Lord the Chief Justice and my learned brother Meredith J. and it appears to me that the question referred to us has become very complicated for two reasons, the first reason being that the Legislature failed to consider when it amended Section 22 as to what will be the position of a purchasing co-owner of an occupancy right or holding in the event of partition of the proprietary interest or in the event of his losing the proprietary interest and the second reason being the divergence of judicial opinion on this point. Though on the exact point which I have to determine the rulings of our own Court appear to be consistent, there is ample force in the contention that "a person cannot be co-proprietor and raiyat at the same time in respect of the same land" and that "the law does not recognise a person as a tenant of himself". Because of the difficult problem with which we are faced I tried to take help from authoritative books relating to the law of land-lord and tenant and I find from Woodfall's "Law of Landlord and Tenent" that a relationship of landlord and tenant can be created in a variety of ways one of which is by the operation of statute irrespective of the intention of the parties. A sort of relationship of landlord and tenant is created between the cosharer purchaser and his co-proprietor a because the former has to pay rent to the latter and this is certainly a creature of the statute. It is well known that a plain construction of the statute sometime leads to an absurdity or an anomaly. As a general proposition it is correct to say that the law does not recognise a person as a tenant of himself but a statute on its plain construction may lead to anomaly and the relationship of landlord and tenant can be created by means of a statute. It therefore follows that there can be such a thing as an anomalous tenancy. The first and the most elementary rule of construction is that in cases where the language is plain, precise, clear, unequivocal and unambiguous words should be understood in their technical sense if they have acquired one and otherwise in their ordinary and grammatical sense. Where the language is such as not to admit of more meaning than one, no question of interpretation arises. Absolute sententia expositore non indiget. There is no necessity to explain that which requires no explanation. In the case of Warbuton v. Loveland, (1832) 2 Eow. & Clause 480: (98 R.R. 844), it was laid down by Tindal C.J. that where the language is clear and explicit effect should be given to it whatever may be the consequences. The same view was taken by Coleridge J. in Peacock v. Pietring, (1852) 18 Q. B. 790), wherein he says that once the mind of the Legislature is ascertained through the words employed "nothing is more dangerous than to flinch from that conclusion because we think the enactment is less wise or efficacious than it might have been made or wholly fails of its object; perhaps the most efficacious mode of procuring good laws, certainly the only one allowable to a Court of Justice is to act fully up to the spirit and language of bad ones and to let their inconvenience be fully felt by giving them their full effect."
Lord Brougham observed in Crawford v. Spooner, 4 M.L.A. 179 : (6 MOO. p C. 1) as follows:
"The construction of an Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature. We cannot aid the Legislature's defective phrasing of the statute. We cannot add and mend and by construction make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly, much more if the Legislature intended something very different, if the Legislature intended pretty nearly the opposite of what it said it is not for Judges to invent something which they do not meet with in the words of the text .... It is not for them to so supply a meaning for in reality it would be supplying it. The true way in these cases is to take the words as the Legislature has given them and to take the meaning which the words given naturally imply unless where the construction of those words is either by the preamble or by the context of the words in question controlled or altered. And, therefore, if any other meaning was Intended than that which the words purport plainly to import, then let another Act supply the meaning and supply the defect in the previous Act."
73. Therefore, if the Legislature has used the word ''rent" we cannot interpret it to mean compensation for use and occupation. The language of Section 22 (2), as it stands after amendment is 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."
While commenting on the use of the word ''rent" in this section, Shearer J. observed in Anand Prasad Singh v. Medni Prasad Singh, 33 Pat. 291: A.I.R. (31) 1944 Pat. 313) as follows:
"The other ground, on which the theory of an anomalous tenancy is based, is the use of the word "rent" instead of the word "compensation" in Section 22 (2). In the Eastern Bengal and Assam Tenancy Act, in the Orissa Tenancy Act and in Section 22 (2), Bengal Tenaney Act itself, as amended in 1928, the word "compensation" and not "rent" is used. The use of the word "rent" may, perhaps have been due to an overflight on the part of the draftsman. More probably, the word was, I think, used advisedly in order to make the special period of limitation applicable to suits by the other co-sharers to recover anything due by the purchasing co-sharers."
With the greatest respect for his Lordship's views I may point out that it would offend against the canons of interpretation to read the word "rent" as "compensation" and to draw any inference on the assumption that the use of the word "rent" is due to an oversight on the part of the draftsman. The words of the statute best declare the intention of the Legislature and there is no need for reading into the context words not found there. We should not speculate that the word 'rent' was used advisedly in order to make the special period of limitation applicable by the other co-sharers to recover the amount payable to them by the purchasing co-sharer. If the statute is defective it should be amended and till it is done its plain meaning cannot be set at naught on an assumption, however, well founded it may appear to be. But if really the word "rent" was used in order to make the special period of limitation applicable, the suits instituted by the other co-sharers against the purchasing co-sharer then that supports the view that the amount payable by the purchasing co-sharer is really not compensation. Moreover, if we proceed to consider the existing Section 22 (2) in the light of the amendment that was made in East Bengal at about the same time when the amendment was made in Bengal we would feel convinced that the intention of the Legislature in making the amendment of 1907 was to create a sort of tenancy in favour of the purchasing co-sharer. The amended Section 22 (2) as it prevails in East Bengal is AS follows:
"If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, such person shall have no right to hold it as a proprietor or permanent tenure-holder, as the case may be, and shall pay to his co-sharers a fair and equitable sum for use and occupation of the same."
There was no difficulty in making a similar amendment in Bengal it being a very simple matter to use the words ''fair and equitable sum for the use and occupation" instead of the word "rent". There is a good deal of difference between "compensation for use and occupation" and "rent" because "rent" according to the statute means "whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant". The use of the word "rent" presupposes that there is the relationship of the landlord and tenant and, therefore, if in Bengal the word 'rent' was used and in East Bengal the words "equitable sum for the use and occupation" were used this must be taken to be a deliberate act of the Legislature. In 1928, the Tenancy Act in Bengal was amend, ed by Act of 1928 and the amended sub Section 2 in Bengal now stands, as follows:
"Nothing in this section shall prevent the acquisition by transfer succession or in any other way whatsoever, of the holding of an occupancy raiyat or share or portion thereof, together with the occupancy rights therein by a person who is, or becomes, jointly interested in the lands as a proprietor 01 a permanent tenure-holder. Provided that a co-sharer landlord who purchases a holding of a raiyat at a sale in execution of a rent decree or of a certificate under this Act shall not hold the land comprised in such holding as a raiyat but shall hold the land as a proprietor or tenure holder as the case may be and shall pay to his cosharers a fair and equitable sum for the use and occupation of the same. The rent payable by the raiyat to the other cosharer landlords at the time of the transfer shall be regarded as the fair and equitable sum until otherwise determined in accordance with the principles of this Act regulating the enhancement or reduction of the rents of occupancy-raiyats".
This is a significant amendment. The object of the amendment of Section 22 in 1907 was to counteract the ruling in Jawadul Haq v. Ram Das Saha, 24 Cal. 143: (1 C. W. N. 166) and the Full Bench ruling of the Calcutta High Court in Ram Mohan Pal v. Sheikh Kachu, 32 Cal, 386: (1 C. L. J. l F. B.) and the select Committee observed in their report as follows:
"The amendments made by them in the section will give effect to the Intention of the framers of the Act, by providing that, where a sole landlord acquires an occupancy holding of his raiyat, the interests of such landlord and tenant merge into a landlord's interest; and that where one of several cosharer landlords or joint tenure-holders acquires an occupancy right of a tenant of all the cosharers or joint tenure holders, such landlord cannot thereby acquire an occupancy right, or by sub-letting, bar the acquisition of raiyati rights by the sub-lessees. At the same time, under the section as modified by us, the landlord will not be prevented from cultivating the land himself, though the holding will not become proprietor's private land. We have inserted an illustration to make the meaning of the section quite clear '.
It is also necessary in this connection to note that if really the intention of the Legislature would have been that the interest of the purchasing co-sharer should not be regarded as a tenancy it would have made the same sort of amendment in Sub-section 2 as it has made in Sub-section 1 and would have expressly said as it has said in case of Sub-section l that the two interests would coalesce. My opinion is that on a careful reading of the amendments it seems obvious that the word 'rent' was deliberately used by the Legislature and that the intention was to create a tenancy in favour of the purchasing co-shares, there being such a thing as an anomalous tenancy which the law can recognise.
74. The second important consideration is that quite in derogation of the right under the common law the purchasing cosharer is in a position to create a tenancy by sub-letting the jote land purchased by him. Sub-section 2 says that if such transferee sub-lets the land to a third parson such third person shall be deemed to be a tenure-holder or raiyat as the case may be in respect of the land. An illustration has been given in the Act and it runs as follows:
"A, a cosharer landlord, purchases the occupancy holding of a raiyat X. A is entitled himself to hold the land, on payment to his cosharers of the shares of the rent payable to them in respect of the holding. A sublets the land to Y, who takes it for the purposes of establishing tenants on it; Y becomes a tenure-holder in respect of the land. Or A sublets it to Z, who takes it for the purpose of cultivating it himself, 2 becomes a raiyat in respect of the land".
The word ''rent" has been used in this illustration as well.
75. In Radha Proshad Wasti v. Esuf, 1 Cal. 414: (9 C. L. R. 76) Sir Richard Garth C. J. observed as follows:
"When a tenant has been put into possession of ijmali property with the consent of all the sharers, or what is the same thing, has been placed there by the managing share-bolder, who has authority to act for the rest, no one or more of the cosharers, can turn the tenant out without the consent of the others. But no man has a right to intrude upon ijmali property against the will of the cosharers or of any of them. If be does so, he may be ejected without notice, either, altogether, if all the co-sharers join in the suit, or partially, if only some of the cosharers wish to eject him; and the legal means by which such a partial ejectment is effected, is by giving the plaintiffs possessions of their shares jointly with the intruder".
The Judicial Committee of the Privy Council in Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, 51 Cal. 631: (A.I.R. [11] 1924 P. C. 144) observed as follows:
"In Bengal a cosharer 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 Roy, (48 I. A. 40: A.I.R. (9) 1922 P. C. 241). See also the cases referred to at p. 116 of the commentary on the Bengal Tenancy Act, 1885, by W. Finucane and Ameer Ali (Syed) edited by F. G. Wigley, Calcutta, 1904".
The same question arose in our own Court in the case Bibi Kaniz Fatma v. Hussainuddin. Ahmad, 22 Pat. 382: (A.I.R. [30] 1943 Pat. 194 F. B.) and the questions of law referred to Full Bench were formulated as follows:
"Whether a person inducted by one co-sharer only on lands belonging to all the cosharers is a raiyat under the Bihar Tenancy Act and whether such a person can acquire occupancy right by being in possession of such land for 12 years or upward. Whether the mere fact that a cosharer landlord has been in sole possession of certain land for convenience or by mutual arrangement amongst the cosharer landlords is sufficient to raise an inference that he has implied authority to settle tenants upon the land for convenience of cultivation".
These two questions were answered in the negative and Sinha J. made the following observations:
"Unless there has been a complete partition, dividing not only possessions but title also, the law cannot assume such an arrangement between the cosharers as would vest one cosharer with the rights of all the cosharers. If the cosharers completely divest themselves of their rights as such, it amounts to a complete cessation of community of interest, that is to say, they cease to be tenants in common and each erstwhile cosharer then became the owner of the entire land in respect of which he was clothed with those rights. Hence in my opinion, there is no half-way house between estates in severalty and estates held in tenancy in common. I am fortified in this view by the observations of the Judicial Committee in the case of Basiram Saha v. Ram Ratan, 54 Cal. 586: (A.I.R. (14) 1927 P. C. 117), in which their Lordships observed as follows : 'It is a view that there is some tertium quid between common tenancy and several holding, and that when this tertium qui dexists, if any formal partition supervene, it does not affect or interfere with the arrangement under which land-owners who are in some respects still tenants in common may yet have specific shares of the estate allotted to their exclusive enjoyment. The Act does not apparently contemplate any such cases as being possible.' That being the position, if there hag been no complete partition of the estate amongst the co-sharer proprietors, the private arrangement by which the co-sharers are allowed to possess specific plots of bakashi lands would not operate to clothe the co-sharer in possession with the full rights of the sole proprietor and divest the other co-sharers of their rights as such. Hence, in my opinion, on general principles, the first two questions referred to the Full Bench should be answered in the negative."
I have cited these cases containing the forceful observations referred to above with a view to show that a co-sharer landlord as such has as right to induct a person upon a land belonging to the entire body of the co-sharers without the consent or authority express or implied of the other co-sharers. If, therefore, the Legislature has authorised the co-sharer purchaser of the occupancy right to sub-let the land to a third person and had further laid down that such third person shall be deemed to be a tenure-holder or raiyat as the case may be in respect of the land, the conclusion is irresistible that the law contemplates that because of the purchase of the occupancy right of the land by the co-sharer purchaser an intermediate interest is created in his favour, The argument is advanced that because of the purchase of the Occupancy right by the co-sharer landlord a constructive trust is created and that the co-sharer purchaser on being paid by his other co-sharers the expenditure for which they can be liable in proportion to their shares is bound to return the lands to them. Sherer J. in the case Anand Prasad Singh v. Medni Prasad Singh, 23 Pat. 291: (A.I.R. (31) 1944 Pat. 313) took this view and his observation runs as follows:
"I can see no distinction between the case of one of a number of co-lessees, who obtains in his own name a renewal of a lease, and the case of a number of co-lessors, who obtains in his own name and for his own benefit a surrender of a lease. In each case, there arises a constructive trust. If a co-sharer landlord purchases an occupancy holding, which is transferable by custom without the consent of the landlord, the true ground, on which, in my opinion, he is entitled to resist a claim by the other co-sharers to be put in joint possession along with him, is that, as a condition precedent, they are bound to contribute to the expenditure, which he has incurred in purchasing it. If at a subsequent partition, the occupancy holding has, for any reason, to be allotted to the estate formed for another co-sharer, the latter can surely be required to reimburse the purchaser. Partition is an equitable remedy, and at a partition, all equities that may arise as between one co-owner and another can and ought to be adjusted. But the right of the purchasing co-sharer to be re-imbursed is an equitable right, and must be put forward and established in the proceedings in the revenue Court, if the estate is partitioned under the Estates Partition Act."
With the greatest respect for his Lordship's views, I have to point out that there is no provision in law under which such sort of adjustment based on reimbursement can be made. If really, on account of the purchase by the co-sharer landlord of an occupancy right or holding a constructive trust is created with the result that on a partition the entire body of landlords would be entitled to treat the purchased land as an ordinary bakasht land, then there is no reason why such a right cannot be enforced by the other co-sharers before a partition is effected. The statute can very well create an anomaly but we should not do that by means of our judicial interpretation and if we accept the theory of constructive trust then there is no escape from the position that even before the partition the other co-sharers can enforce their right by calling upon the purchasing co-sharer to make over the land to them after making contribution to the expenditure. Certainly this cannot be permitted that if any suit is instituted by the other co-sharers for the possession of the land on payment of the price or the expenditure that suit is bound to be thrown out. Does it stand to reason that while this so-called constructive trust cannot be effective so long as there is no partition the position changes and changes suddenly as soon as a suit for partition is instituted or as soon as an application for partition is filed before the Collector ? In my opinion, the argument based on the theory of constructive trust would lead us to reasoning, absolutely fallacious, and to a conclusion, which will be insupportable in law. I can find no justification for the view that the right would remain dormant so long as there is no question of partition and would suddenly assume a shape as soon as the question of partition is raised. Shearer J. agreed with the views of Jwala Prasad J. as put forward in the case, Bam Prasad v. Gopal Chand, 2 P. L. t. 163 : (A.I.R. (8) 1921 Pat. 341) :
"It will be anomalous and indeed, unjust to permit a co proprietor, after the kashi lands in the estate have been purchased by another co-proprietor at great expense, to go to the Collectorate partition and to claim the same as bakasht and to share in the acquisition, to which he has not contributed a single farthing."
But he said that he was not satisfied that the law as it stood was powerless to prevent such an injustice. Most respectfully I differ from His Lordship's view that the injustice can be avoided by means of a partition. As Jwala Prasad J. had pointed out, there is no limit of time to the possession of the co-sharer nor is his possession controlled by any event such as the partition of the estate. If really the intention of the Legislature would have been that the co-sharer would remain in possession only so long as the estate is not partitioned it would have clearly said so and it wag very easy to add a clause that in the event of partition the land purchased by the co-sharer would be treated as bakasht and would be partitioned as such. Apart from what His Lordship Jwala Prasad J. had said as to the injustice to which the co-sharer purchaser will be subjected if his laud is partitioned after he has cultivated it for a number of years and spent much capital or labour over it, there is the well-known observation of the Privy Council in Rovert Watson & Co. v. Ram Chand Dutt, 17 I. A. 110 : (8 Cal 10 P. C.) which runs as follows:
"In Bengal the Courts of justice, in cases where no specific rule exists are to act according to justice, equity, and good conscience, and if in a case of shareholders holding lands in common, it should be found that one share-holder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other share-holder to appropriate to himself the fruits of the other's labour or capital."
We get two things from this important observation of their Lordships, the first being that in oases where no specific rule of law exists we are to act according to justice, equity and good conscience and the second being that we are not to allow the share-holders to appropriate to themselves the fruit of others' labour or capital. Both these considerations are absolutely relevant in this case and should help us in deciding the points referred to us, when there is no specific rule of law by which on a partition the cosharer purchaser is bound to part with his lands for which he has paid a good price and which ha had cultivated for a number of years after spending labour and capital over it.
76. These are the main grounds on which I am inclined to answer the questions referred to us in the affirmative.
77. It remains to be considered how far the observations of their Lordships of the Judicial Committee, in the case of Midnapore Zamindary v. Naresh Narayan Roy, 61 Cal. 631 : (A.I.R. (11) 1924 P. C. 144) can be of help to us in deciding the questions raised. The observations on which reliance can be placed are as follows:
"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 his tenants any right of occupancy of the lands in them.
Even if the Midnapore Company purchased any jote rights in lands held in common by the cosharers, such a purchase would in law be held to have been a purchase for the benefit of all the cosharers and the jote rights so purchased would by the purchase be extinguished."
78. My Lord the Chief Justice, who as a Judge of this Court delivered the judgment of the Full Bench Case in Sunder Mail v. Lachhmi Tewari, 19 Pat. 833 : (A.I.R. (27) 1940 Pat 467 F.B.) when referring to the dictum laid down by their Lordships observed as follows :
"In the Midnapore Zamindary Co. Ltd v. Naresh Narayan Ray, (51 Cal 631 : A.I.R. (11) 1924 P. C. 144) the Midnapur Co had not in fact purchased any occupancy holding, so it may be said that the dictum of their Lordships referred to above was obiter,"
Shearer J. pointed out in the case of Anand Prasad Singh v. Medni Prasad Singh, (23 Pat. 291 : A.I.R. (31) 1944 Pat. 313) that there can be no doubt that their Lordships were not construing the provisions of Section 22 (2) as stands after the amendment, but he was of opinion that they bad the section in mind, as it stood prior to 1907. Ross J. with whom Das J. agreed, in the case of Jhapsi Sao v. Mt. Bibi Aliman, 7 P. L. T 170 : (A.I.R. (13) 1926 Pat. 263) while referring to the observation of their Lordships of the Judicial Committee observed as follows:
"This general statement of the law must be read subject to the provisions of Section 22 (2), Bengal Tenancy Act, where the consequences of the purchase of an occupancy holding by a person jointly interested in the land as proprietor are enacted."
With this observation I respectfully agree. I have read their Lordships' judgment with the greatest care and in my opinion, it is quite clear that their Lordships stated the law only generally and had not in mind Section 22 (2), Bengal Tenancy Act. They could not at any rate think of the section as it stands after the amendment o* 1907. Even Shearer J. has said that their Lordships were not construing the provisions of Section 22 (2) and that even if they had this section in mind it was the section as it stood prior to 1907. That their Lordships could not think of the section as it stands after the amendment of 1907 would be further clear from the following observation of their Lordships :
"the possession which the plaintiff got in 1902 was within 12 years on 8th August 1912 and the suit was not barred by the law of limitation."
If the plaints had got the possession in the year 1902 there cannot be any question of their Lordships having in mind the amended section and, therefore, their Lordships' observation, towards the end of the judgment "until the partition has been effected and possession of land falling on partition to the plaintiff has been delivered to plaintiff" cannot be the deciding factor. I am therefore of the opinion that the Privy Council decision does not at all help us in determining the question raised.
79. My learned brother Meredith J. has discussed the rulings of this Court which have either directly decided the point raised or which have an indirect bearing upon the question and there is not a single case of this Court in which the view has been taken that the purchasing cosharer loses his rights upon partition. The important cases are those which have been referred in the order of reference and the case of Babui Dhaneshwari Kuer v. Chandradhari Singh, 17 P. L. T 97 : (A.I.R. (23) 1936 Pat. 317). In Babu Ram Prasad v. Munshi Gopal Chand, a P. L. T. 163 : (A.I.R. (11) 1924 Pat. 341), Jwala Prasad J. held that the mere fact that the estate in which the holding is situated is partitioned among the co-proprietors and the holding is allotted to some other co-proprietor would not entitle the latter to eject the co-proprietor who had purchased the holding. His Lordship during the course of the discussion observed that there was no limit of time to the possession of the purchasing co-proprietor; nor was it controlled by any event such as the partition of the estate. He further observed that neither law nor equity would make his position worse than that of a stranger. This case has been followed in sub-sequent decisions and was noticed even in the Full Bench cage, Sunder Mall v. Lachhmi Tewari, 19 Pat. 893: (A.I.R. (27) 1940 Pat. 467) and his Lordship Agarwala J. while referring to this case observed that it was not clear whether the purchase had been made before or after 1907. Of course, if the purchase had been made before 1907 then this decision would be taken to have been overruled by the decision in Sunder Mall v. Lachhmi Tewari, (19 Pat. 893 : (A.I.R. (27) 1940 Pat. 467 F. B.); but if the purchase had been made after 1907 then the decision cannot be taken as overruled. A similar view was taken in Nand Kishore v. Mathura Sahu, 3 P. L. t. 13: (A.I.R. (9) 1922 Pat. 193) and it was further pointed out in this case that the terms 'kasht' or 'bakasht' are words of art introduced for the purpose of understanding the possession of lands by the proprietors and the tenants. In Basudeo Narayan v. Radha Kishun, 3 P. l. T. 22: (A.I.R. (9) 1922 Pat. 62) the purchase no doubt had taken place prior to 1907. In Jhapsi Sao v. Mt. Aliman, 5 Pat. 281 : (A.I.R. (13) 1926 Pat. 263) it was held that the allotment of certain lands by the Revenue authorities as bakasht lands does not estop the co-sharer holding direct possession of the said lands under Section 22 (2), Bengal Tenancy Act from continuing to keep them in his khas possession on payment of rent to the co-sharer to whose takhta it has been allotted. The following observations of Ross J. in this case appear to me to be important:
"He argues that as from the moment of partition there are no longer any co proprietors, the sub-section ceases to have any operation ; and the land must be treated as ordinary bakasht land falling to the direct possession of the proprietor of the takhta, to which it is allotted. In principle I do not see why this consequence should ensue. Section 22 (2) confers a privilege on the purchasing co-sharer which is in derogation of the common law right of the other co-sharers as stated in the judgment of the Judicial Committee quoted above. I do not see what there is in partition to take away that privilege. On the contrary, it would appear that the partition only removes the necessity for the limitation on the effect of the purchase and would set free the holding to be operated upon by the oridinary provisions of the law. In other words, Section 22 (2) imposes a limitation on the rights of the co sharers for the benefit of the purchasing co-sharer; and there is no reason why this limitation should be removed by reason only of a partition taking place."
An important observation has also been made in the case reported in Dhaneshwari Kuer v. Chandradhari Singh, 17 P. L. t. 97 : (A.I.R. (23) 1936 Pat. 317) in which the same view was taken and the observation is as follows:
"As my Lord the Chief Justice pointed out during the course of the 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 cosharer 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 pat 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 bean 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 respondent."
I need not refer to the other authorities which have a direct or indirect bearing on the question, especially when almost all the cases have been referred in the judgment of my learned brother. I think if we act according to the principle of stare decisis we cannot depart from the principles which have been laid down in the several decisions of this Court and specially when there is no direct ruling to the contrary.
80. I think I ought to refer to the case of Bambahadur Lal v. Mt. Gungora, Kuer, 7 P. L. T. 87: (A.I.R. (12) 1925 Pat. 347) a decision which in the opinion of my learned brother is wrong. With the greatest respect for his Lordship's views I am not able to go so far as to say that this decision is absolutely wrong. After all an anomalous position has been created and when there is an anomaly such results can follow. It is to my mind not incorrect to say, in view of the provision of law as it stands, that the anomalous tenancy can last only so long as the proprietor continues to possess his proprietary interest. After the partition, as has been pointed out in several rulings, the interest of the co-sharer purchaser does not cease, but it does cease after his proprietary interest is sold and therefore the question arises whether he can retain the land after he has parted with the proprietary interest.
81. In the case of Ram Krishna Jha v. Jainandan Jha, 14 Pat. 672 : (A.I.R. (22) 1935 Pat. 291 F. B.) a Full Bench of this Court discussed the principle of cursus curias and his Lordship Wort J. quoted the following observations made by Lard Cottenham and Lord Westbury. Lord Cottenham:
"If there has been a course of decision and the decision first made has been adhered to and confirmed by other decisions, that is, what is called a current of authorities too strong to be resisted."
Lord Westbury:
"If we find a uniform interpretation of a statute upon a question materially affecting property, and perpetually recurring, and which has bean adhered to without interruption, it would be impossible for us to introduce the precedent of disregarding that interpretation."
After quoting these authorities Wort J. observed as follows:
"I gathered from these authorities that the principle cursus curias or the rule of practice, in the sense of the practice of the Court to decide the construction in a certain way, can only be applied when, first, the statute is ambiguous, secondly, when the decisions are consistent throughout ; thirdly, when titles are dependent upon those decisions."
These principles are, to my mind fully applicable in this case. There can be no doubt that the decisions of this Court have been consistent throughout and that titles have been dependent on those decisions. It appears to me to be a bit hard that we should now depart from the view which we have consistently held so long and I have already said that the use of the word "rent" in the sub-section which we ace considering should alone lead us to answer the question referred to us in the affirmative,
82. In the question 1 we find a mention of "non-transferable occupancy holding" as well, but a question about non-transferable occupancy holdings now will be purely an academic question. According to Section 26N, Bihar Tenancy Act, it makes no difference whether the lands in question are transferable or non-transferable holdings provided the purchase was made prior to 1st January 1923 as in this present case. Of course though the existing law is that a transfer made before 1st January 1923 would be binding upon the landlord and no notice shall be necessary and no landlord's registration fee shall be payable, the old law was that Section 23 (2) had no application in the case of non-transferable occupancy holding.
83. My conclusion therefore is that both the question referred us should be answered in the affirmative.