RAM RANJAN RAY Vs. HAHU MIAN

JUDGEMENT

(1.) ONE Kasim Ali had a holding, the rent of which was Rs. 2-4-0 and cesses. The landlord's interest belonged as to eight annas to Sindhubala and as to the remaining eight annas to four brothers (Gurus) three of whom are pro forma defendants. The fourth brother is dead and his widow is Mt. Bhanumati. It appears that by arrangement with the holders of the landlord's interest Kasim Ali paid half of the rent and cesses to Sindhubala and the other half to the Gurus. On 3rd January 1930, he entered into two transactions which have given rise to this litigation. By one of these transactions he borrowed Rs. 750 from the plaintiff to clear off the encumbrances on his holding. It is not disputed that the money so borrowed was used for this purpose. He next transferred to his wife and son, defendant 2, half of the holding and then surrendered the other half to the Gurus. The latter settled this half with the plaintiff. Kasim Ali being dead, his wife and son resisted the plaintiff's attempt to obtain possession of his half share of the holding. Hence this present suit for possession by the plaintiff which was decreed in the trial Court. The Court of appeal below has reversed the trial Court's decision.

(2.) THE question that arises is whether the plaintiff has a good title to the half share of the holding settled with him by defendants 3 to 6. It may be mentioned that Kasim Ali's transfer to his wife and son of half of the holding was with the permission of the Deputy Commissioner so that the fact that the transfer was only of a part of the holding does not invalidate that transfer. THE document by which the transfer was made recited that the rent for the portion of the holding transferred was payable to Sindhubala. Half of the holding having therefore been thus validly transferred to Kasim Ali's wife and son, the question of law is whether the surrender of the remainder to defendants 3 to 6 was valid. One objection that was raised with respect to this may be dealt with at once. It was said that with regard to eight annas of the landlord's interest owned by the Gurus it was not only defendants 3 to 6 who were interested but also the wife of their deceased brother and that no surrender had been made to her, so that it was argued that the surrender, even of the half portion which remained after the other half had been transferred to Kasim Ali's wife and son, was a surrender to only some of the holders of the half share. It was admitted however in the trial Court that one of these brothers acted as a manager for the family so that he would represent the widow who was living jointly with the family in the transaction. Furthermore, the objection is raised not by defendants 3 to 6 who are merely pro forma defendants or by the widow of their deceased brother who is not a party to the suit, but by the son and wife of Kasim Ali. As the validity of their own title depends on the legality of the transactions entered into by Kasim Ali it is not open to them to challenge those transactions while maintaining the advantages which they gained under them. With regard to the validity of the surrender of the half share, it was contended that there can be no surrender of a portion of the holding to some of the landlords. Although. Section 257, Chota Nagpur Tenancy Act requires that when two or more persons are joint landlords, they must act jointly in respect to acts required or authorized under the Act, the section cannot apply to the circumstances of this case where by arrangement between the parties each of the two sets of landlords was in receipt of his own share of rent, so that their possession in law was that of co-owners. THE fifth sub-section of Section 72, contemplates cases of partial surrender of a holding by arrangement between a raiyat and his landlord. In so far as the portion of the holding surrendered is concerned, the landlords were the Gurus and the widow who were holding their eight annas interest separately from the eight annas interest in which Sindhubala was interested, and as has already been indicated the whole of the Gurus interest was represented by the member of the family who was the manager and who accepted this transfer from Kasim Ali. THEre does not appear therefore to be anyobjection in law to the surrender which was made to the Gurus or to the settlement which they subsequently made with the plaintiff. THE only persons who object to the plaintiff obtaining possessions under the settlement are the wife and son of Kasim Ali who, as I have already said, are retaining the benefit of the transactions which he entered into and under which the encumbrances on the holding were cleared off with Rupees 750 which Kasim Ali borrowed from the plaintiff. Neither in law nor in equity does there seem to be any reason for keeping the plaintiff out of the fruits of these transactions. In the result the appeal succeeds and the appellant is entitled to his costs. Leave to appeal is refused.