Chamier, C.J:— The is an application for leave to appeal to His Majesty in Council. The plaintiffs in the case are purchasers of a patni tenure granted by a zamindar in 1856 to two persons, Kalitnath Tewari and Tejnath Tewari. The last named in 1858 transferred his interest in the tenure to Kalitnath Tewari. The plaintiffs claim to be entitle to khas possession of all the lands included in the patni tenure. The Tewari defendants claim to be entitled to retain possession of 1,242 bighas lying within the patni tenure on the strength of a permanent mokarrari lease granted by the zamindar to their ancestors in 1846. Both the Subordinate Judge, and this Court held that the mokarrari lease was granted to the defendants' ancestors in 1846 as alleged. On this question of fact there are, therefore concurrent findings which will probably be accepted by their Lordships of the Privy Council, and we must deal with this application on that footing. The plaintiffs contend that the mokarrari merged in the patni when both become, as has been found, vested in the same persons. Both Courts held that no merger took place.
2. The Subordinate Judge said:
“I hold, therefore that the makarrari right did not merge in the patni right as the patni and the mokarrari rights were not acquired in the same names and as the mokarrari right was kept separate from the patni right by keeping separate collection papers for the mokarrari and by granting separate rent receipts to the tenants as mokarraridare.”
3. This Court said:
“The last point argued by Mr. Pugh is that there was a merger of the patni and mokarrari rights upon the purchase of Tejnath's interest or if not from that date, then from the date of the death of Kalitnath. Upon the question of merger modern case law in India is conflicting, but ancient case law is clear that there was no law of merger in the mufassal prior to the passing of the Transfer of Property Act. We agree with Teunon, J., in Abdul Karim v. Ahammad Ali Meaji(1) that prior to the year 1882 when the Transfer of Property Act was passed, there was no merger in the mufassal.”
4. It may be that what the learned Judge meant by saying that there was no merger or law of merger in force in the mufassal prior to 1882, was that there did not prevail in the mufassal any rule of merger such as was in force as law in England prior to the passing of the Judicature Act. In a Court of Equity the question of merger or no merger has always been considered to depend upon the express or implied intention, of the parties. It appears to me that the learned Judges of this Court ought to have considered the question whether the evidence showed an intention to keep the two interests apart or it was to the interest of the mokarraridars to keep them apart. They seem to have decided against the alleged merger merely on the ground that previous to 1882 there was no law of merger in the mufassald.
5. On the whole, though I confess, not without some hesitation, I have come to the conclusion that the proposed appeal does inrolve a substantial question of law. I would, therefore direct that a certificate be issued that as regards value and nature, the case fulfils the requirements of Section 110 of the CPC.
6. Sharfuddin, J.:— I agree.
V.S/R.K
7. Certificate granted.