(BABUI) DHANESHWARI KUAR Vs. CHANDRADHARI SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff in a partition suit. The plaintiff's share was four annas, that of defendant 1 eight annas, and that of defendant 2, who was the sister of the plaintiff, the remaining four annas. During the pendency of the appeal defendant 2, who was on the record as respondent 2, died and a question arose between the appellant and the sons of defendant 2 as regards who was to take the place of the deceased respondent for the purposes of this appeal. That matter has been settled between the disputing parties, and the sons of the deceased respondent have now withdrawn their opposition. The result is that the appellant is entitled not only to her original share of four annas but also to the four annas share in respect of which her sister had been impleaded in the suit. As to this, respondent 1, the owner of the other eight annas, raises no objection and the partition will have to be carried out in the light of the altered circumstances.

(2.) The only point urged on behalf of the appellant relates to lands in the possession of defendant 1 on account of purchases made by him in rent executions. The issue was whether these lands were liable to be partitioned, and the lower Court answered it in favour of the defendant. The learned advocate for the appellant does not seriously contend that that particular answer is wrong on the authorities, but he does urge, and urge very strenuously, that the reason given by the lower Court for answering the issue in that particular way will lead to many difficulties in future and is incorrect. This reason is that as defendant 1 purchased raiyati land in execution of rent decrees in presence of the other co- sharers, namely the plaintiff and defendant 2, he is, under Section 22, Clause 2, Ben. Ten. Act, entitled to hold the lands subject to the payment of rent to his co- sharers. Upon this the learned advocate points out two things. He says, in the first place, that the clause in question deals with or provides for payment to co- proprietors, and urges that after the partition there can be no co-proprietors at all He also points out that under Section 158.B, Ben. Ten. Act, under which a holding sold in execution of a decree for arrears of rent is to pass to the purchaser, this effect is expressly subject to the provisions of Section 22. The contention of the learned advocate thus is that Section 22, Clause 2 of the Act does not entitle defendant 1, with his present eight annas in the tauzi, to hold the raiyati lands purchased by him in rent executions subject to the payment of rent as mentioned in Clause (2), Section 22 after he has ceased to be a co-proprietor by reason of the partition. This particular contention has been before the Court on several occasions, some of which are referred to in Jhapsi Sao V/s. Mt. Bibi Aliman 1926 Pat 263. Ross, J., who delivered the judgment of the Court in that case, first dealt with the observations of their Lordships of the Judicial Committee in Midnapore Zamindary Co. Ltd. V/s. Naresh Narayan Roy 1924 PC 144, that: Even if the Midnapore 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, on which the learned advocate for the appellant has laid a good deal of stress. The learned Judge then pointed out that this general statement of the law must be read subject to the provisions of Section 22(2), Ben. Ten. Act. That section, as he observed, confers a privilege on the purchasing co-sharer which is in derogation of the common law right of the other co-sharers, and there does not seem to be anything in a partition to take away that privilege. "On the contrary," said the learned Judge: 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 ordinary provisions of the law.

(3.) The stress laid by the learned advocate on the word "co-proprietors" in the clause under consideration was also noticed by Ross, J., along with the observation in Bambahadur Lal V/s. Gungra Kuar 1925 Pat 547, by Kulwant Sahay, J., that the status created by Section 22, Clause (2) is a peculiar status which attached to the co-sharer so long as he remained a co-sharer, on which also stress has been laid before us. But as Ross, J., pointed out, Kulwant Sahay, J., himself said in the last cited case that in the decisions in which it had been held that on partition the purchasing co-sharer was entitled to retain possession of the land recorded in his name under Section 22, Clause 2, "the interest of the co-sharer who had purchased the holding did not cease. He continued to be the proprietor after the partition and hence it was held that he was entitled to retain possession." That the particular point urged before us by the learned advocate has been decided against him in this Court in a number of cases is not disputed, but he has urged that those decisions overlook the effect of the words subject to the provisions of Section 22" in Section 158-B, and he has laid stress on Stonewigg v. Dwarka Singh 1918 Pat 422 in which Jwala Prasad, J. with whom the late Chief Justice concurred, had observed that a co-proprietor who had purchased certain raiyati lands, was entitled under 01. 2, Section 22, to hold them on payment of rent to the co-proprietors so long as the village was held jointly by all the proprietors, but that on partition of the lands he had no right as co-proprietor to claim possession under the section. But this dictum was explained away by Jwala Prasad, J., himself in Babu Ram Prasad V/s. Munshi Gopal Chand 1921 Pat 341 which he, sitting with Das, J., followed in Nand Kishore Singh V/s. Mathura Sahu 1922 Pat 193, and both these cases were followed in Jhapsi Sao V/s. Mt. Bibi Aliman 1926 Pat 263. The words in Section 158-B, on which the learned advocate has laid so much stress, do not really introduce any new consideration, for they only take us back to Section 22, and as Ross, J., pointed out, undue stress must not be laid on the word "co-proprietors" occurring in Sub-section (2) of this section. 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 01. 2, Section 22, a negative provision that the purchasing co-sharer will have no right at all to the land as soon as he ceases to be a co-sharer by reason of the partition. But it is only as long as there are others interested in the land as co-proprietors that it is necessary to deal specially with the purchasing co-sharer's right to hold the land.