Judgement

Appeal (No. 138 of 1919) from a judgment and decree of the High Court (June 27, 1916) affirming a decree of the Subordinate Judge.

On June 14, 1846, one Mathura Nath Ghosh, the owner of mauza Israin Kalan, granted a mukarrari lease of about 1242 bighas situated within the mauza; those lands were known as Jadua patti. The lessees were Dhir Nath Tiwari and Loke Tiwari, who were members of a joint Hindu family.

The mukarrari lease by its terms was granted for agricultural purposes. On August 31, 1856, Mathura Nath Ghosh granted a patni lease of the whole mauza to Kalit Nath Tiwari (the son of Loke Nath) and one Tej Narayan Tiwari, the latter not being a member of the joint family ; in 1858 Kali Nath bought the rights of Tej Narayan in the patni. In 1907 the appellants purchased the patni at a sale for arrears of rent.

In 1910 the appellants instituted the present suit against the respondents—namely, the heirs of Kalit Nath Tiwari and another defendant not material to the appeal. By their plaint they claimed (1.) a declaration that Jadua patti was part of the patni settlement of August 31, 1856; (2.) a declaration that the defendants had no mukarrari right in Jadua patti; and (3.) khas possession of the patti with mesne profits. The defendants by their written statements relied on the mukarrari lease of 1846.

Among the issues framed were the following (7.) Is the mukarrari lease set up by the defendants genuine? (8.) Was the mukarrari interest merged in the patni interest of the defendants and thereby extinguished ?

The evidence showed that th. Tiwari family had been in possession of the Jadua patti under the mukarrari lease of 1846. As evidence that the mukarrari right had been kept distinct from the patni right they relied on hastbood papers showing that "the mukarrari Jadua patti" was enjoyed by the managing member of the family in 1883, 1885, 1892 and 1908, and upon rent receipts and kabuliats of various dates after 1856 containing references to " Jadua patti mukarrari."

The Subordinate Judge found that the mukarrari lease was genuine. On issue 8, while expressing a doubt whether the principle of merger applied to land in the mofussil before the Transfer of Property Act, 1882, he recorded his finding in favour of the defendants as follows "I therefore hold that the mukarrari right did not merge in the patni right as the patni and the mukarrari rights were not acquired in the same names, and as the mukarrari was kept separate from the patni by keeping separate collection papers for the mukarrari and by granting separate rent receipts to the tenants as mukarraridars." He accordingly dismissed the suit.

On appeal the High Court affirmed the decision of the Subordinate Judge on all points. The learned judges (Roe and Jwala Prasad JJ.) were of opinion, with regard to the question of merger, that they had to consider whether there was any intention to abandon the mukarrari right for the sake of the patni. They said that if such an intention had existed they could see no reason why the patni had not been taken in the names of the mukarraridars who at the time of its grant were the heads of the family. They further expressed the view upon a consideration of the authorities that until the passing of the Transfer of Property Act, 1882, the principle of merger did not apply in the mofussil, and pointed out that in any case that Act did not affect leases for agricultural purposes.

1921. June 9, 10. De Gruyther K.C. and Dube for the appellants. The mukarrari lease became merged in the patni in 1858 when Kalit acquired the interest of Tej Narayan in the patni. It is conceded that the Transfer of Property Act, 1882, does not affect the present case. According to the rule of justice, equity, and good conscience, which the decisions say means the application of English law, a merger took place Kishendatt Ram v. Muntaz Ali. (( 1879) L. R. 6 I. A. 145.) The Indian decisions do not establish that the principles of merger did not apply i