Judgement

Appeal (No. 12 of 1930) from a decree of the Chief Court of Oudh (December 15, 1927) reversing a decree of the Subordinate Judge of Mohanlalganj, Lucknow, which affirmed a decree of the Second Munsif, Lucknow.

The suit was instituted by the appellant for an account of his share of the rents and profits of certain property in Lucknow, of which he had acquired a 2 anna, 1 pie, 11 kirant share by purchase in 1921, the defendants being owners of the remaining share under an earlier purchase. The question arising was whether in taking the accounts the appellant was chargeable in respect of three shops in his occupation, and forming part of the property, with the rent reserved by a lease granted to him before his purchase, or the estimated rental value apart from the lease. The Chief Court (reversing the lower Courts) had taken the latter view.

The facts appear from the judgment of the Judicial Committee.

Law Rep. 58 Ind. App. 75 ( 1930- 1931)

Faqir Bakhsh V. Murli Dhar 7

1930. Nov. 27. Wallach for the appellant. The respondents did not appear.

Jan. 13. The judgment of their Lordships was delivered by

LORD MACMILLAN. The plaintiff in this suit, Shaikh Faqir Bakhsh, and the defendant Murli Dhar, are joint proprietors pro indiviso of a property in the city of Lucknow known as Rahimganj, on which a large block of shops has been erected. The entire property was formerly owned by one Khuda Bakhsh, but it is now held in the proportions roughly of one-eighth and seven-eighths by the parties mentioned, who acquired their respective shares in it by purchase. When the plaintiff bought his one-eighth share on April 1, 1921, the defendant Murli Dhar had already acquired his seven-eighths share. At the time when the latter purchased his share of the entire property, a portion of it, consisting of three shops, was in the occupation of the plaintiff as tenant under a lease at a monthly rent of Rs.14.8, and this lease was current when the plaintiff himself purchased the remaining one-eighth share of the entire property.

In the present proceedings the plaintiff, now the appellant, asks that an account be taken of the income of the entire property for the period from October 1, 1922, to the end of February, 1925 (or 1926—the date is variously stated), in order that his share thereof may be ascertained and paid to him. He claims that in the account the revenue from the portion of the property in his own occupation, being the subjects comprised in his lease, should be entered at the monthly rent of Rs.14.8 payable under the lease. The defendant Murli Dhar contends that the plaintiff, having become a pro indiviso proprietor of one-eighth of the entire property and suing as a co-sharer for an account of the revenue of the entire property, is not entitled to found upon the lease in question and must bring into the account as the return on the subjects comprised in the lease and occupied by him, not the stipulated rent of Rs.14.8, but the reasonable profits of these subjects, which he estimates at not less than Rs.35O per month. The real issue in the case is raised by these rival contentions.

The Second Munsif, Lucknow, before whom the matter came in the first instance, found in favour of the plaintiff by a judgment dated November 29, 1926, which on appeal was affirmed by the Subordinate Judge, Mohanlalganj, on March 29, 1927. In both Courts the view was taken that the acquisition by the plaintiff of a one-eighth share of the entire property did not operate an extinction of his rights as a tenant of a portion of the property, and that the plaintiff was accordingly entitled to continue to claim the benefit of the lease and to bring into the account as the income of that portion the rent payable under the lease.

On an appeal being taken to the Chief Court of Oudh the decision of the Courts below was reversed and the case was remitted to the Court of first instance " for a determination of the true profits of the whole property, including the three sh