SHEOMURAT SINGH Vs. DIP NARAIN SINGH

JUDGEMENT

(1.) THIS is a second appeal by seven defendants who are mortgagees of specific plots from a cosharer. The plaintiff is the owner of a share of two annas nine pies in a village and he brought a suit for profits against certain cosharers and the mortgagees of specific plots of those cosharers and the Courts below have decreed the suit of the plaintiff for profits. One of the points argued in appeal is ground No. 3 that the appellants are only transferees oil specific plots of land and cannot be legally regarded as cosharers and no decree under Section 227, Agra Tenancy Act, of 1926 can be passed against them. THIS point has been the subject of a decision of a Bench of this Court reported in Jadunath Singh V/s. Hanuman Singh (1913) 18 A.I.R. All. 668 and the Bench of which I was a member held) that when a cosharer makes a usufructuary mortgage of part of his share or of specific plots of which he is in exclusive possession, a Court in a suit for profits should regard the cosharer and his mortgagee as a single unit. It would indeed be impossible to do otherwise as the calculation should not be made on any other grounds in any other manner. If a cosharer transferred the whole of his share to mortgagees of specific plots, it is obvious that the cosharer could not alone be sued for collecting excess profits and that he must be joined with the mortgagees. In the Transfer of Property Act, Section 76(c) provides that in the absence of a contract to the contrary, a mortgagee must pay the Government revenue or other charges of a public nature and all rent. In the Agra Tenancy Act of 1926 it is provided that the word "cosharer" in. eludes the assignees or mortgagees of a cosharer and therefore they are included in the term "cosharer" for the purposes of that chapter; but as they have not chosen to take a mortgage of a portion of the share but only of specific numbers, there, fore they must be included with the cosharer who mortgaged to them the plots in suit. The next point which was argued is expressed in ground No. 5 of the appeal: Because the sir owned by the predecessors-in-interest of the plaintiff respondent having become the subject of ex-proprietary tenancy, the plaintiff respondent cannot claim proportionate share in the remaining area owned by other cosharers.

(2.) NOW there are a number of fallacies in this argument. In the first place when an exproprietary tenancy is created, the exproprietary tenant becomes a tenant of all the cosharers and not merely of his vendor. The proposition therefore fails on this ground alone. Moreover it is not shown that there was any decrease in the profits of the village as a result of the ex-proprietary tenancy being created. Learned Counsel assumed that the income from sir must always be greater than the income from exproprietary tenancy. It is no doubt true that the person who holds sir as a cosharer derives a greater benefit from doing so than the amount of the exproprietary rent but that benefit goes to the cosharer who is cultivating the sir and he does not share that benefit with the other cosharers. In general, cosharers among themselves in arrangements for profits assess their sir cultivation at a low rate, lower than the exproprietary rate, and therefore by creating an exproprietary tenancy the general profits of the mahal would be raised and not lowered. I find no merits in this second appeal and dismiss it with costs. No ground has been shown for a Letters Patent appeal and therefore permission is refused.