DURBIJAI SINGH Vs. NAWAB ZOHRA SULTAN BEGAM

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for arrears of rent from Rabi 1338 Fasli to Kharif 1340 Fasli. The suit was resisted by the defendants inter alia on the ground that the plaintiff alone was not entitled to sue and that, in any ease, the plaintiff could not be granted a decree for a sum in excess of her share in the rent of the holding. This contention of the defendants was, in my judgment, rightly overruled by both the Courts below. There is no longer any controversy about the facts and the only question for decision in the appeal is the question of law as to the plaintiff's right to maintain the suit. The facts are as follows: Chandan Singh, the father of the defendant-appellants, was the proprietor of a fractional share in the mahal, to which the suit relates, and he held some sir land also. Chandan Singh sold his entire proprietary rights in the mahal along with his sir land to the plaintiff, respondent in the year 1880. On transfer of his proprietary rights, Chandan Singh acquired exproprietary rights in that sir. It was covenanted in the sale deed that a sum of Rs. 80 a year would be paid by Chandan. Singh as the rent of his exproprietary holding and there was further a clear stipulation contained in the deed that the purchaser, viz. the plaintiff-respondent, would be entitled to collect the whole rent of the holding. In pursuance of this covenant in the deed, if not also in conformity with the usage obtaining in the mahal, the plaintiff- respondent has been realizing, from Chandan Singh and his sons the whole-rent of the exproprietary holding from the-date of the sale deed upto the year 1930. Further, on more occasions than one the plaintiff- respondent realized the entire rent of the exproprietary holding by means of suits and in one of the cases for arrears of rent filed by the plaintiff that came in second appeal to this Court, it was observed by this Court that the custom is for the exproprietary tenant to pay the rent to the purchaser who accounts for it to his co-sharers.

(2.) In short the agreement by the vendor in the sale deed to pay the whole rent of the holding to the purchaser was acted upon for about 50 years. It is also a fact that in the year 1926 by mutual agreement between the parties to the present litigation the annual rental of Rs. 80 was enhanced to Rs. 104 a year.

(3.) The only point that has been argued in. appeal before me is about the right of the plaintiff to realize the entire rent of the exproprietary holding. The learned Counsel for the appellant has contended that as, apart from the plaintiff- respondent, there are other co-sharers in the mahal in which the exproprietary holding of the defendants is situated, the plaintiff alone was not entitled to maintain the suit and in support of this argument he has placed reliance on Section 266, Agra Tenancy Act (Act 3 of 1926) and on a decision of this Court in Manohar Lal V/s. Baldeo Singh . It is provided by Section 266, Agra Tenancy Act, that: ...where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly....