MT HAIDARI BEGUM Vs. THAKUR LAKSHMI NARAINJI MAHARAJ

JUDGEMENT

(1.) This is a suit under Section 164, Tenancy Act, for profits by a cosharer against the heirs of a lambardar. It has been found not merely that there were no reliable accounts of actual collections, but affirmatively, that the accounts furnished by the defendants are false and misleading; and the lower appellate Court has, therefore, given the plaintiff a decree based on the full amount of the jamabandi. This decree has not been limited to the assets of the deceased lambardar which may have come into the hands of the defendants, as his heirs. No argument was addressed to us on behalf of the appellant that the decree ought in any event to have beep so limited; but, for reasons to which we will refer later, we are of opinion that the decree should have been so limited.

(2.) First, it has been contended that no decree should have been given against the defendants beyond such amount as may have been found proved to have been actually collected; but; in face of the finding that the accounts furnished are false and misleading, and that there is no reliable evidence of actual collections, no such decree would in any case be possible, Next, it has been contended that no decree of any sort can be given against the defendants based on the negligence or misconduct of the deceased lambardar in carrying out his duty to make collections. This argument is, we think, based on an entire misconception of the rulings upon which reliance has been placed. It is argued that Sub-section (2) of Section 164 has no application at all where it is not the lambardar himself who is being sued, but where the suit has been, brought in the first place, as in this case, against the heirs of the lambardar. The argument for the appellant has been entirely founded on certain remarks in the case of Dip Singh V/s. Ram Charan [1902] 29 All. 15 and Bharath Singh V/s. Tej Singh [1918] 40 All. 246. At page 17 of the report in the former case there is the following passage: At first sight it might appear that the heir or representative of the lambardar would be so liable in respect of the negligence or misconduct of his predecessor-in-title, but if this had been the intention of the legislature, we should expect to find in Sub-section (2) instead of the word defendant the word lambardar, That word does not occur in Sub- section (2), of Section 164. We are therefore, of opinion that the successor-in title of a deceased lambardar is not liable to account for profits which his predecessor may have failed to collect or which he permitted to remain uncollected owing to negligence or misconduct,

(3.) To appreciate the meaning of this passage it is only necessary to consider what were the facts of that case. The defendants were the son and two brothers of the deceased lambardar. With the deceased they constituted a joint Hindu family. This (we have examined the original record) was actually pleaded by the plaintiff and not controverted by the defendants. They were also joint lambardars in succession to the deceased lambardar. The plaint further alleged that the joint family property had benefited by the collections made by the deceased lambardar who had also been negligent. The suit was against the defendants as present lambardars in regard to their own conduct and also sought to hold them responsible for the liabilities of the deceased lambardar and asked for a decree against the defendants for a lump sum of the total amount due on both accounts.