Narayanprasad v. Laxmanprasad

JUDGMENT

1. This is a second appeal by Narayan Prasad, the defendant, to set aside the order dated 5th December 1941, passed by the Second Additional District Judge, Bilaspur, in civil Appeal No. 1-B of 1941. The appeal arises out of a suit for profits from the villages mouza Korbi, mouza Bhurrakunda, mouza Chhindpur, and mouza Mouhadih, Ilaqa zamindari Korba, tahsil Katghora, district Bilaspur. The parties are related. Nandram, Jagatram, Bhagatram and Parasram were four brothers, sons of Sadai. Narayan Prasad is the grandson of Nandram. Lachhman Prasad is the grandson of Jagatram. They are thus cousins.

2. The plaintiff's case in the lower Court was that the four brothers, Nandram and others, acquired the thekadari malguzari right of mouza Korbi and of the other mouzas in the year 1890 out of joint family funds.

3. In the year 1911 protected status was conferred on Nandram, the eldest brother, as manager of the joint Hindu family. Nandram died in 1920 and on his death his son Sakram was recorded as a protected thekedar. He died on 2nd August 1938 and after his death the defendant is now the protected thekedar of mouza Korbi. Similarly, Sakram was declared a protected headman of Bhurrakunda, Moahadih, and Chhindpur in 1925. Copies of reports and orders have been filed as D-6, D-7 and D-8. The Court of the Additional Judicial Commissioner, by the decrees dated 22nd December 1928 in Second Appeal Nos. 648, 649 and 650 of 1927, decreed the claim for possession of the protected thekedar against three members of the family, Parasram, Dhaniram and Lachhman Prasad, the present defendants. The decision was based on 24 N.L.R 179,1 but there was no decision whether the members of the family were entitled either to maintenance or a share in the theka. The plaintiff claimed Rs. 500 on account of the profits for the year 1937–1938. The defendant denied the claim and stated that the plaintiff was not entitled to claim a share of the profits either of mouza Korbi or the other villages of which he was the sole and exclusive protected headman, and the suit as framed was not maintainable. The Court of the first Subordinate Judge, Second Class, Bilaspur, by the decree dated 4th December 1940, dismissed the suit holding that the plaintiff was not entitled to a definite share out of the income from village Korbi and that his remedy is by a suit for maintenance. This decree was set aside by the Court of the Second Additional District Judge, Bilaspur, under O. 41, R. 23 of the CPC, and the case has been remanded for a fresh decision. It is against this order that the present appeal has been filed.

4. The first Court dismissed the suit in limine on a preliminary point. The facts have not yet been ascertained and it was not possible to determine the rights of the parties unless the case was tried on merits. Their Lordships of the Privy Council in a series of cases have deprecated these fragmentary decisions. The order of the appellate Court remanding the case for a decision on merits was a proper order in the circumstances of the case.

5. If the thekedari right in respect of mouza Korbi was acquired by the joint family out of joint family funds it will be joint family property and the plaintiff as a member of the joint family, would be entitled to a share in the theka and to be maintained out of its income. The protected status was conferred on Nandram in the year 1911. According to the plaintiff he was then the manager, and that this status was conferred on him as the head of the family. The conferral of the protected status on Nandram did not affect the rights of the members of the joint family to be maintained out of the income. The incidents of protected thekedari tenure are given in Section 109 of the C.P Land Revenue Act. One of the incidents is that it is impartible; another, that it is inalienable. But the proviso recognizes that this does not prevent a protected thekedar, or any member or members of his family who would be entitled to a share in the thekha or be maintained out of its income, from making any arrangement binding on themselves only, for the joint or divided management and enjoyment of the village or part thereof. This presupposes that the members entering into an arrangement had certain pre-existing rights. Similarly, in case of succession where there are persons bearing the same degree of relationship to the deceased thekedar, one who was joint in estate with him at the time of his death is preferred to one who was not so joint: see proviso to S. 109(1)(b)(ii). A cosharer in the theka is entitled to be put in possession of the village in case a protected thekedar transfers it save as provided in sub-s. (1), cl. (a) proviso (ii): S. 109(3) of the Act. Explanation II to S. 109 states that a cosharer means any person joint with the protected thekedar and entitled to a share in the profits of the lease. The several provisions in the Act recognise the pre-existing right of a cosharer and the power to enforce the right if it is infringed. One of the rights which he can enforce is by an application under Section 112 of the Land Revenue Act, for removal of the protected thekedar if he commits a breach of the conditions of the lease. But the right of a cosharer is not restricted to an application under S. 112 of the Act. If he has a share in the theka or a right to be maintained out of its income, he is entitled to a share in the profits of the lease and can enforce his rights in a civil Court in case of denial and the jurisdiction of the civil Court is not barred. The decision in 24 N.L.R 179 cannot be treated as an authority for the proposition that a member of a joint Hindu family is restricted to an application under Section 112 of the C.P Land Revenue Act, and cannot enforce his rights in a civil Court by a suit either for maintenance or for a share of profits.

6. The trial Court recognised that the plaintiff is entitled to maintenance. The plaintiff has claimed profits on the basis that he is entitled to ¼th share of the income. If, however, he is found not entitled to ¼th share he would be entitled to get a decree for maintenance for an amount which the Court might consider suitable to his status and position in life. The plaintiff has asked for the greater relief and that will not prevent the Court trying the case from giving such relief as the plaintiff may be entitled. The learned counsel for the appellant contended that the suit has not been framed as one for maintenance and as such it was not maintainable. The suit may not have been framed as one for maintenance, but if the plaintiff is entitled to be maintained out of the profits the lower Court will be justified to grant him such relief as he will be entitled to. Another argument of the learned counsel for the appellant was that under the Hindu law a coparcener is not entitled to ask the manager to render account or to give a share of the income from the joint family property and that the only remedy which a coparcener has is to sue for partition and as the protected tenure is impartible the member of the joint family cannot sue for a definite share. As the case has been remanded for a fresh decision, it will not be proper for me to express my opinion on a hypothetical case as the facts have not been ascertained, and I refrain from discussing these questions as it might prejudice the parties in the trial of the case.

7. The learned counsel for the appellant pointed out that there is no corresponding proviso in Section 117, as it is in Section 109, sub-Section (1) of the Land Revenue Act. The incidents of a protected headman are the same as those of a protected thekedar but there is no provision recognising the rights of the members of the family entitled to a share in the theka, or to be maintained out of its income, for making any arrangement binding on themselves only, for the joint or divided management and enjoyment of the village or part thereof. The reports D-6, D-7 and D-8 state that the thekedari rights in the three villages Bhurrakunda, Mouhadih and Chhindpur had been in the possession of the family for over 20 years and that they had effected improvements in the village. If the thekedari rights were acquired by the joint family out of joint family funds and if the improvements were effected from the joint funds, there is no reason why the members of the family should not be maintained out of its income. I do not decide whether they would be entitled to a definite share of the income. Whether the plaintiff is entitled to a definite share or is entitled to mere maintenance are matters which do not arise at this stage and this judgment should not be taken as a decision on that point. The absence of proviso in Section 117 of the Land Revenue Act, would not, in anyway, affect the pre-existing right which the members of the family had in the theka subject to such statutory modification as may have been introduced by the conferral of that status. Subject to that reservation their previous rights are not affected. The order of the appellate Court remanding the case for a decision on merits is proper and is upheld. The appeal is dismissed with costs.

8. Appeal dismissed.