MT SAHODRA Vs. BADRI PRASAD

JUDGEMENT

(1.) The plaintiff-appellant brought the suit, which has given rise to this appeal, for recovery of what has been called malikana allowance and interest payable by defendants 1 to 5 (contesting respondents in this Court), as the present holders of village Katia. The Court of first instance decreed the suit but the lower appellate Court dismissed it. The claim has reference to an agreement alleged to have been entered into among five brothers, one of whom was Ragha Singh, plaintiff's deceased husband, at the partition of ancestral property which consisted of shares in several villages, including the village Katia which was allotted to another of the five brothers, namely Umrao Singh with an important reservation to be presently mentioned. Umrao's interests passed to defendants 1 to 5 by private purchase from his heirs. No formal deed of partition or agreement appears to have been drawn up, but the terms of it are clearly stated in the wajib-ul-arz of village Katia prepared at the settlement of 1873. The relevant portion of the wajib-ul-arz is translated below: At the time of partition of zamindari villages regard was had to the profits of each. On the villages (named) being allotted to Ragha Singh cosharer and those (villages named) being allotted to Puran Singh there was deficiency in the profits (of their: shares). It was, therefore, agreed that the cosharers to whom Katia was assigned should pay Rs. 58-11-0 a year as detailed below, that is Rs. 56 to Puran Singh and Rs. 2-11-0 to Ragha Singh, that these sums should be paid by the person in possession of this village (for the time being) and that Puran Singh and Ragha Singh have a right to this profit (is munafia ka ikhtiyar hasil hai), for this reason, the payment is regarded as malikana in this village.

(2.) It should be noted that the village Katia was part of the joint property and was brought into hotchpot. That the entry in the wajib-ul-arz, quoted above, is good prima facie evidence of the agreement recited therein cannot be questioned. Indeed, the lower appellate Court has accepted it as such, but has refused to give effect to it on the ground that malikana was not a charge on the village enforceable against the transferees, as defendants 1 to 5 are. I am clearly of opinion that the malikana reserved to Puran Singh and Ragha Singh amounts to an interest in land and is a much higher right than a mere charge in their favour. The village Katia and other villages belonged jointly to the five brothers. As the effect of partition, exclusive ownership in village Katia (except the right to receive profits to the extent of Rs. 58-11-0 out of the total rental) was assigned to Umrao Singh. Correspondingly, the rights of Puran Singh and Ragha Singh the erstwhile joint owners, were put an end to except so far that they were entitled to receive profits amounting to Rs. 58-11-0 which should be regarded not as a new right conferred on them but as the residue left to them after adjustment at the partition. It is a proprietary interest differing from the ordinary ownership only in that it is a fixed amount and not being the profit of a definite fractional share does not admit of any variation. The position would not have been materially different if a fractional share say one anna had been reserved to Puran and Ragha Singh to make up the deficiency in their shares.

(3.) The judgment of the lower appellate Court proceeds on a variety of grounds some of which, in my opinion, afford no foundation for the view that it has taken. The comment of the learned Judge that the entry in the wajib-ul-arz of 1873 was not "confirmed by the wajib-ul-arz of the last settlement" is difficult to understand. If the wajib-ul-arz of 1873 which is an official record of relations subsisting among the cosharers, is to be used as a piece of evidence, and if its genuineness is not in dispute, the fact that the entry was not repeated in the subsequent wajib-ul-arz cannot detract from its value. As a matter of fact, we do not know whether a wajib-ul-arz was subsequently prepared and if it was prepared the agreement referred to in the earlier wajib-ul-arz was omitted therefrom. The remark of the learned Subordinate Judge is based on the circumstance that the plaintiff made no attempt to produce the wajib-ul-arz which he assumed was prepared at the next settlement.