Badri Narain Jha And Others vs Rameshwar Dayal Singh And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 40 of 1950

Decision Date: 5 February 1951

Coram: Mehr Chand Mahajan, Saiyid Fazal Ali, B.K. Mukherjea, N. Chandrasekhara Aiyar

In the matter titled Badri Narain Jha and Others versus Rameshwar Dayal Singh and Others, the Supreme Court of India delivered its judgment on the 5th of February, 1951. The opinion was authored by Justice Mehr Chand Mahajan, and the bench on which the case was heard comprised Justices Mehr Chand Mahajan, Saiyid Fazal Ali, B. K. Mukherjea, and N. Chandrasekhara Aiyar. The petitioners are identified as Badri Narain Jha and others, while the respondents are named as Rameshwar Dayal Singh and others. The judgment carries the citation 1951 AIR 186 and 1951 SCR 153, and it has been referenced in later reports such as RF 1985 SC1118 (10), D 1988 SC1365 (6), and RF 1991 SC 899 (6).

The case concerned the operation of the landlord-and-tenant law on the doctrine of merger. Specifically, the issue arose when one of several joint holders of a mokarrari interest acquired a portion of the corresponding lakhraj interest. The Court held that such a transaction does not result in merger of the lease, and that the integrity of the lease as it pertains to the lessor remains unaffected. Moreover, a partition among the lessees inter se does not alter the tenancy’s unity; each lessee continues to be liable to the lessor for the entire rent as a single tenant. The Court referred to the authority White v. Tyndall (13 App. Cas. 263) in support of this principle.

The appeal arose under the civil appellate jurisdiction from a judgment and decree dated the 14th of February, 1946, rendered by the High Court of Judicature at Patna. The appeal challenged the High Court’s reversal of a decree originally passed by the Subordinate Judge of Palamau in Suit No. 9 of 1939. The original suit had been instituted by the appellants seeking several declarations regarding the title to specific lands and an injunction to restrain the respondents from proceeding with a rent suit. While the Subordinate Judge had decreed in favour of the appellants, the High Court set aside that decree and dismissed the suit.

The factual background detailed that the village of Darha formed part of the ancestral lakhraj of a Pathak family. Approximately one hundred years prior, the Pathaks had granted the whole village in mokarrari to the ancestors of the Singha family, who were the first and second parties to the present suit, for an annual jam of twenty-four rupees. Over time, the mokarrari interest descended upon three branches of the Singha family in the following proportions: the first party, Parameshwar Dayal and others, received six annas; the second party, Bisheswar Dayal Singh, received eight annas; and Madho Saran Singh obtained two annas. Subsequently, the two-anna share belonging to Madho Saran Singh was purchased jointly by Hiranand Jha, the father of the plaintiffs, together with Durganand Jha and Dharam Dayal. The latter acted merely as a benamidar for Hiranand Jha. On 5 June 1916, Bisheshwar Dayal Singh acquired a six-anna share in the lakhraj interest from Deolal Pathak and others, and on 9 February 1917 he purchased an additional two-anna share from Mandil Pathak, thereby accumulating an eight-anna share in the lakhraj interest. He already possessed the mokarrari interest to the same extent by inheritance. In the year 1917 or 1918, Hiranand Jha and Durganand Jha, having bought from Madho Saran Singh two annas of mokarrari interest, obtained, by execution of a rent decree, the raiyati interest in the entire village and took possession of it. Consequently, they became mokarraridars of a two-anna share and raiyats of sixteen annas of the village lands.

In this matter, the court recorded that Madho Saran Singh originally held a two-anna share, which was subsequently purchased by Hiranand Jha, the father of the plaintiffs, together with Durganand Jha and Dharam Dayal; Dharam Dayal acted only as a benamidar for Hiranand Jha. On 5 June 1916, Bisheshwar Dayal Singh acquired a six-anna share in the lakhraj interest from Deolal Pathak and others, and on 9 February 1917 he purchased an additional two-anna share from Mandil Pathak, thereby obtaining an eight-anna portion of the lakhraj interest. He already possessed a mokarrari interest to the same extent by inheritance. In the year 1917-1918, Hiranand Jha and Durganand Jha, having bought the two-anna mokarrari interest of Madho Saran Singh, obtained, by execution of a rent decree, the raiyati interest in the whole village and entered into possession, becoming mokarraridars of two annas and raiyats of sixteen annas of the village lands. In 1918, Title Suit No. 59 of 1918 was filed before the Subordinate Judge of Palamau for partition of lands situated in several villages belonging to the families of the first and second defendants. The Jhas were impleaded as defendants as co-sharers of part of the property. The suit was decreed in 1921, and the final partition allotted the Jhas a separate two-anna share in Darha village. The remaining fourteen-anna share, except for khatian 1, 3 and 6, was allotted to the first defendant; those three khatians were allotted to Bisheshwar Dayal Singh, who in exchange for the balance of his interest received property in village Holeya. Consequently, after the partition, the first defendant held a fourteen-anna mokarrari interest in Darha, Bisheshwar Dayal Singh’s interest was limited to the three khatians, and the Jhas possessed their two-anna mokarrari share. Around 1926, the holders of the lakhraj interest, namely the Pathaks and Bisheshwar Dayal Singh, fell into default on government cess. On 17 August 1926, proceedings were instituted for cess recovery, and their interest was sold by execution of a certificate on 18 October 1927 to Bijainandan Sahay. The sale, confirmed on 19 December 1927, resulted in a sale certificate issued on 3 March 1928 and delivery of possession on 15 July 1928. Possession was obtained by Kamta Prasad, who had acquired the interest from Bijainandan Sahay on 20 April 1928. On 1 May 1933, Kamta Prasad transferred his interest in the village to the plaintiffs, thereby making them proprietors of a sixteen-anna share and mokarraridars of two annas, while retaining raiyati rights over the entire sixteen-anna portion.

According to the record, the plaintiffs received the transferred interest on 1 May 1933, thereby becoming owners of a sixteen-anna share in the village and also assuming the role of mokarraridars for a two-anna share, while the raiyats held the entire sixteen-anna estate throughout the village. On 21 September 1934, the defendants’ first party, acting as mokarraridars, instituted a suit against the plaintiffs demanding arrears of raiyati rent for the fiscal year 1338-39 F. to the extent of a six-anna share and for the year 1340-41 F. to the extent of a fourteen-anna share. The defendants asserted that a partition decree had granted them a fourteen-anna share in the mokarrari interest of the village. The plaintiffs contested the suit by claiming that Bisheshwar Dayal Singh’s mokarrari interest had merged with the lakhraj interest he had purchased from the Pathaks in 1916-17, and that the sale under the Government’s certificate had transferred his entire eight-anna interest—both lakhraj and mokarrari—to the plaintiffs. Consequently, the plaintiffs argued that the defendants’ first party could only claim rent for the six-anna share in the mokarrari. The trial judge rejected the plaintiffs’ plea, and the defendants’ first party’s claim for rent was awarded in full. The decree was affirmed on appeal and again on a second appeal, although the court expressly left the question of title unresolved.

In 1938, the defendants’ first party, still acting as mokarraridars, filed another suit for rent seeking to recover the fourteen-anna share of rent for periods after Fasli 1341. In response, the plaintiffs instituted the present suit seeking a declaration of title and an injunction. Their pleadings alleged that the eight-anna mokarrari interest of Bisheshwar Dayal Singh had merged into his lakhraj interest, and that the certificate sale consequently extinguished all of his village interests, both lakhraj and mokarrari, by virtue of that merger. The plaintiffs further contended that the partition decree dated 1921 was illegal, and even if it were valid, it conferred only a six-anna mokarrari interest on the defendants’ first party, limiting the defendants’ entitlement to rent from the tenants to that extent. An injunction was also sought to restrain the defendants from pursuing the rent suit. The plaint asserted that a private partition among the mokarraridars had divided the lands of village Darha into three distinct sets, each set occupying separate, defined shares in exclusive possession. Additionally, the plaint claimed that a separate partition had occurred among the proprietors of the lakhraj interest, namely between Bisheshwar Dayal Singh on one side and Deolal Pathak, Neman Pathak and Surajnath Pathak on the other. Under this alleged partition, the lands that formed the mokarrari patties of Parmeshwar Dayal Singh, others, Hiranand Jha and Durganand Jha were allotted to the patti of Deolal Pathak and associates, whereas the lands forming the mokarrari patti of the defendants’ second party were placed in his proprietary lakhraj patti, resulting in the merger of the second party’s mokarrari interest into his lakhraj interest and its subsequent conveyance to the plaintiffs by the certificate sale.

The trial Judge found that the interest of the defendants’ second party had merged into his lakhraj interest and that, by virtue of a certificate sale, the entire merged interest had passed to the plaintiffs. He concluded that both partitions alleged by the plaintiffs in paragraphs five and eight of their plaint were proved. Accordingly, he held that the mokarrari interest of Bisheshwar Dayal Singh merged into his lakhraj interest, and that at the certificate sale the purchaser acquired the complete combined interest, comprising both the lakhraj and mokarrari portions, together with the eight-anna lakhraj interest held by the Pathaks. The Judge further observed that the defendants’ first party were mokarraridars of a six-anna interest in the village and, therefore, were entitled only to a decree for rent corresponding to that six-anna share, and could not claim a decree for rent on the basis of a fourteen-anna share.

The High Court on appeal held that none of the partitions pleaded by the plaintiffs were proved, and that the eight-anna mokarrari interest could not merge into the sixteen-anna lakhraj interest that was held jointly by Bisheshwar Dayal Singh and the Pathaks. As a result of that finding, the High Court dismissed the plaintiffs’ suit. In the present appeal, counsel for the appellants submitted that the High Court had erred in concluding that the two partitions set out in paragraphs five and eight were not proved. They argued that the documentary and oral evidence on record fully established the existence of both partitions. Accordingly, they maintained that Bisheshwar Dayal Singh should have been regarded as the separate owner of an eight-anna lakhraj interest, that his mokarrari interest of eight annas merged into that lakhraj interest, and that the certificate sale transferred the entire merged interest to the purchaser in execution. On that basis, they contended that the defendants’ first party could maintain a rent-recovery suit only to the extent of their six-anna mokarrari interest. The Court, however, stated that the appeal could be disposed of on a short point without addressing the detailed contentions raised before the lower courts. It observed that the plaintiffs’ case rested solely on the allegation that the eight-anna lakhraj interest of Bisheshwar Dayal Singh merged with his mokarrari interest to the same extent. The Court found that the doctrine of merger could not be applied to the facts disclosed in the plaint. It explained that when a lessor purchases the lessee’s entire interest, the lease is extinguished because one person cannot simultaneously be landlord and tenant, but such extinction does not occur when a lessee purchases only a part of the lessor’s interest. In those circumstances, the leasehold and the reversion do not coincide. The Court noted that the plaintiffs had claimed that mauza Darha was originally granted in mokarrari under a single contract.

In the case, the Court observed that the original lease had been granted in mokarrari under a single contract and, by inheritance, the lessee’s interest had passed to three branches of the family. Among those branches, Bisheshwar Dayal Singh had received an eight-anna interest in the entire leasehold. Subsequently, he purchased a six-anna interest in the whole reversion in the year 1916 and an additional two-anna interest in the year 1917. By making these purchases, he became a joint owner of the entire lakhraj holding to the extent of a half share. However, he never acquired the whole lakhraj interest in the village nor the complete mokarrari interest that belonged to that estate. Because of this, the Court held that there was no merging of the lessor’s and the lessee’s interests throughout the estate that was subject to both lakhraj and mokarrari rights, and consequently Bisheshwar Dayal Singh’s mokarrari interest did not merge into his lakhraj interest. The Court further explained that the mere purchase by Bisheshwar of portions of the lakhraj interest could not extinguish the lease or disturb its continuity, since he was only one among several joint holders of the mokarrari interest. The Court also considered the plaintiffs’ allegation that an inter-se partition of the mokarrari interest among the mokarrari-dars could affect liability for rent. It ruled that such a partition could not alter the liability of the lessee as a whole because, under law, several tenants together constitute a single tenant. All of them share common rights over the whole and are jointly responsible for the entire obligation, a principle illustrated by Lord Halsbury’s statement in White v. Tyndall that tenants in common owe one rent, not separate rents. The Court emphasized that there is a privity of estate between the tenant and the landlord for the entire leasehold, making the tenant liable for every covenant that runs with the land. Therefore, an internal partition of the mokarrari interest could not affect the integrity of the lease, nor could it be said that Bisheshwar Dayal Singh, because of the alleged partition, became a mokarraridar under a new lease contract. The Court noted that partitions among several lessees are typically carried out for the convenience of enjoying the leasehold, but they do not, in any way, disturb the continuity of the tenancy or convert each holder into a separate tenant. In the present matter, there was no allegation that the tenancy had been severed or that new tenancies had arisen as a result of the partition with respect to the landlord. Likewise, the Court observed that the claim of a partition among the several owners of the lakhraj holding could not affect the lease’s integrity absent any allegation of a fresh contract between the divided owners of the holding.

The Court noted that the various owners of the mokarrari interest remained entitled together, and that the lakhraj holding in the village continued to exist as a single undivided holding; no allegation was made that this holding had been split into separate portions. All owners, as identified in citation (1) 13 App. Cas. 263 of the lakhraj interest, were jointly liable for the payment of the cess to the Government, and their collective failure to pay that cess resulted in the entire lakhraj interest being sold in the certificate sale. In this circumstance, none of the conditions required for the application of the doctrine of merger could be said to be satisfied by the allegations set out in the plaint. According to the plaintiffs’ own case, the lease remained in force with respect to the six-anna interest of the defendants’ first party, and consequently the lease could not be held to have become extinguished with respect to the eight-anna interest of Bisheshwar Dayal Singh, absent any allegation that a new contract, whether express or implied, had been concluded between the parties. The leasehold had not been absorbed into the reversion, and both the lakhraj and mokarrari interests continued to exist intact.

For these reasons, the Court agreed with the decision of the High Court that Bisheshwar Dayal Singh’s interest in the mokarrari did not merge into his lakhraj interest and therefore did not pass to the execution purchaser under the certificate sale. Instead, that interest vested in the defendants’ first party by virtue of the family partition, making the defendants entitled as mokarraridars to recover rent from the plaintiffs’ raiyats to the extent of a fourteen-anna share. The certificate sale transferred solely the lakhraj interest of the Pathaks and of Bisheshwar Dayal Singh, and it could not be held that, in that sale, a larger interest passed to the execution purchaser with respect to one judgment-debtor than with respect to the other. Because the doctrine of merger was found inapplicable to the facts of the case, the plaintiffs’ claim could not succeed. Accordingly, the Court held that the appeal possessed no merit and dismissed it with costs. The appeal was dismissed. Agent for the appellant: S.P. Varma. Agent for the respondent: P.K. Chatterjee.