An implied contract cannot override the requirement of Section 246(1) of the U. P. Tenancy Act, which mandates joint action by co-sharers in matters related to their rights and interests.

( 1 ) THIS is a defendants appeal arising out of a suit for arrears of rent under Section 148 of the U. P. Tenancy Act. The suit was filed by one of the co-sharers only, i. e. Hem Chandra Mukerji, against Mst. Batool Begum for recovery of arrears of rent in respect of three plots detailed in the plaint. The plaintiff alleged that the plots were the exproprietary tenancy of the defendant, who had Rot possession over the plots after the death of her husband Fida Husain, who was the original sir-holder of the plots.

( 2 ) THE defendant contested the suit and one of her pleas in defence was that the suit could not be decreed, inasmuch as, an area of 83 bighas of Sir appertained to a -/5/2 share of the proprietary interest owned by her predecessor, and that as such she had acquired exproprietary rights in the village and the entire exproprietary tenancy had thereafter became her sir. She further pleaded that the suit was bad for non-joinder of all the co-sharers as required by the provisions of Section 240 of the U. P. Tenancy Act. At a preliminary stage in the trial of the suit it was decided between the parties that the defendant was an exrtroprietary tenant in Khata No. 1 only, which comprised of 47 bighas 14 biswas, while in respect of Khatas Nos. 2 and 3 which comprised of 3 bighas 1 biswa and 5 bighas 5 biswas 12 dhurs respectively she had become a sir-holder and there-fore was not liable to pay any rent to the plaintiff The suit was dismissed by the trial court on a finding that the suit was bad for non-joinder of not only causes of action but also of necessary parties.

( 3 ) AN appeal was preferred by the plaintiff and the lower appellate Court allowed the appeal and granted the plaintiff a decree for the recovery of Rs. 355/5/- as rent in respect of khata No. 1. It also allowed Rs. 39/7/- on account of interest, the total decree granted in plaintiffs favour being rs. 394/12/ -. Future and pendente life interests were allowed at 3 per cent per annum. The parties were directed to bear their own costs throughout, in proportion to their success and failure,

( 4 ) IN second appeal the decree passed by the lower appellate Court has been challenged on the ground that the decree was bad having been made in the teeth of the provisions contained in section 246 of the U. P. Tenancy Act. Section 246 is in these words:

"246. (1) Except as otherwise provided in Sub-section (3) or in Section 245, 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 con-jointly, unless they have appointed an agent to act on behalf of all of them. (2) Nothing in. Sub-section (1) shall affect any local usage or special contract by which a co-sharer in an undivided property is entitled to receive separately the whole or his share of the rent payable by a tenant. (3) When one or two or more co-sharers is not entitled to sue alone and the remaining co-sharers refuse to join as plaintiffs in a suit for money recoverable by them jointly such co-sharer may sue separately for his share, joining the remaining co-sharers ns defendants. (4) Where the tenant of a holding or the illegal transferee of such tenant is also a co-sharer in the proprietary right in such holding, nothing in this section shall require him to be joined as plaintiff in any suit or application brought or made against him as such tenant or illegal transferee under the provisions of this Act.

( 5 ) THE court below came to the _ conclusion from the circumstance that the plaintiff had on previous occasions obtained decrees for arrears of rent, that there must have been an implied contract between the co-sharers under which Hem Chandra Mukerji was entitled to sue for the recovery of arrears without the necessity of having to implead the other co-sharers. It may be here stated that it was admitted on all hands that there were, other co-sharers in this Khata and that Hem Chandr