HANSRAJ Vs. BALDEO SINGH

JUDGEMENT

(1.) Second Appeals Nos. 1337, 1356 and 1357 are connected and have been argued together. They arise out of two suits brought, respectively, by Musammat Sunder Kunwar and one Hansraj for a declaration that a certain sale did not pass the right to receive a 10 per cent, malikana allowance in respect of a Zemindari share and did not convey any interest in certain sir land. The state of the proprietary interest in this village is peculiar and is set out in the judgment of the learned District Judge. There are two bodies interested in it who are known as the muafidars and the Zemindars. In the case of this village the persons who correspond to the proprietors in the ordinary sense, who collect the rents from the tenants, let out the land and pay the Government revenue, are the muafidars. The settlement also has been made with them. The only rights which the so-called Zemindars have, is a right to receive from the muafidars a cash payment of 10 per cent, of the total rental and to hold sir land at a favourable rent which has been fixed by the Settlement Officer. So long as they pay this rent they are not liable to ejectment.

(2.) The appellants in Appeals Nos. 1356 and 1357 are auction-purchasers at a sale held in execution of a decree on a mortgage of the interests of two of the Zemindars, Mula and Kulua. The property sold consisted both of a fractional share in the Zemindari, that is, in the right to receive malikana allowance and of certain sir plots. Musammat Sundar Kunwar, the plaintiff in one of the two suits, is a muafidar. Hansraj and Sri Chand, the plaintiffs in the second suit, are the sons of one of the Zemindars whose interest was sold. The plaintiffs in both suits asked for a perpetual injunction restraining the appellants from realising, the malikana amount payable on the shares, which they had purchased; and Hansraj, and Sri Chand also asked for a declaration) that the plots which had been sold as sir were merely ex-proprietary-tenant holdings and that the plaintiffs might be awarded possession of them. Musammat Sundar Kunwar asked in addition for a declaration that no zemindari right passed by the sale. Both Sundar Kunwar and the father and predecessor-in-interest of the plaintiffs in the other suit, were parties to the suit on the mortgage in connection with which the sale was held. The learned Munsif dismissed both suits. The learned District Judge upheld the Munsif's decision with regard to the sir right but gave the plaintiffs a decree in respect of the malikana. Musammat Sundar Kunwar accepted the decision so far as it was against her. Hansraj and his brother filed Appeal No. 1337 of 1920 against the decision as regards the sir plots, and the defendants-purchasers, Baldeo Singh and others, filed the remaining two appeals in respect of the malikana right.

(3.) We take first the appeals of Baldeo Singh and others. The ground on which the learned District Judge appears to have allowed the appeal was that, in the absence of any clear specification of the nature of the right sold, he must hold that it was a muafidari and not a Zemindari right. We are entirely unable to follow this reasoning and the respondents learned Pleader is not able to support it. The interest which was sold could only be the interest which the judgment-debtors had, and that interest was admittedly the Zemindari interest entitling them to the 10 percent, malikana allowance. The respondents have, however, attempted to support the decision on another ground, namely, that this allowance was a personal right which was not transferable. We are unable to find any reason for holding that this is a non-transferable right. It is a right of a proprietary nature and the decisions which are on the record make it clear that from 1875 onwards these rights have been transferred and the purchasers have realised the malikana dues in place of their vendors. Indeed, as we have already noted, both sets of plaintiffs were actually parties to the proceedings in which the rights had been sold up in this very case. No reason has been shown us on which the judgment of the lower Appellate Court can be supported and we allow appeals Nos. 1356 and 1357 and setting aside the decrees of the Court below, restore the decree of the Munsif with costs in all Courts.