# Rai Brij Raj Krishna and Another v. S.K. Shaw' and BrolhlTs. 19~1 Feb. 5

- **Citation:** [1951] 1 S.C.R. 153
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Case number:** Civil Appeal No. 40 of 1950
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rai-brij-raj-krishna-and-another-v-s-k-shaw-and-brolhlts-19-1-feb-5-171
- **Pages:** 8

## Headnote

S.C.R.
SUPREME COURT REPORTS
153
accordingly allow the appeal, set aside the judgment
and decree of the High Court and restore the decree of
the courts ·below. The appellants will be entitled to
costs throughout.
Appeal allowed.
Agent for the appellant : R. C. Prasad.
Agent for the respondent : S. P. Varma.
BADRI NARAIN JHA AND OTHERS
"·
RAMESHWAR DAYAL SINGH AND OTHERS.
rsAIYID FAZL Au, MEHAR CHAND MAHAJAN,
MuKHERJEA and CHANDRASEKHARA A1YAR JJ.]
Landlord and tenant-Merger-One of several ioint holders
of mokarrari interest acquiring portion of lakhra; interest-No
· merger-Partition amongst lessees
inter sc--lntegrity of lease,
qua lessor, not affected.
If a lessor purchases the whole of the lessee's interest, the
lease is extinguished by merger, but there can be no merger or
extinction where one of several joint holders of the mokarrari
interest purchases portion of the lakhraj interest.
A partition inter se amongst several mokarraridars does not
in any way affect the integrity of the tenancy or make each
holder of an interest in it a separate holder of a different tenancy,
and
notwithstanding
such partition
the mokarraridars remain
liable qua the lessor or the payment of the whole rent as one
tenant.
White v. Tyndall (13 App. Cas. 263) referred to.
CIVIL
APPELLATE
JuRismcnoN : Appeal from
a
judgment and decree of the High Court of Judicature
at Patna dated 14th February, 1946, in Appeal from
Original Decree No. 117 of 1942 arising out of Title
Suit No. 9 -0f 1939 : Civil Appeal No. 40 of 1950.
S. C. Misra for the appellant.
N. C. Chatterjee (P. B. Gangoli, with him) for the
respondent.
1951
Rai Brij Raj
Krishna and
Another
v.
S.K. Shaw'
and BrolhlTs.
19~1
Feb. 5.
1951
Bodri Natayan
.. lo,,,.,,
v.
Ramesluo01
Dayal Singh
arul 01/urs.
Mahajan].
154
SUPREME COURT REPORTS
[1951]
1951. February 5. The judgment of the Court was
delivered by
MAHAJAN J.-Th.is appeal arises out of Suit No. 9 of
1939 instituted in the Court of the Subordinate Judge
of Palamau by the appellants against the respondents
for a number of declarations in respect to the title to
certain lands and for an injunction restraining the
respondents from proceeding with a rent suit.
The
suit was decreed by the Subordinate Judge but on
appeal this decision was reversed by the High Court
of Judicature at Patna and the appellants' suit was
dismissed.
The salient facts of the case are as follows : Village
Darha belonged to a family of Pathaks as their ancestral lakhraj.
Over a hundred years ago the Pathaks
granted the entire village in mokarrari to the ancestors
of the family of Singhas (defendants' first and second
parties) at an annual jama of Rs. 24.
The mokarrari
interest eventually devolved on three branches of the
Singha family, each branch getting in the following
proportions : Parameshwar Dayal and others, defendants' first party, to the extent of six annas ; Bisheswar
Dayal Singh, defendants' second party, to the extent
of eight annas; and Madho Saran Singh, to the extent
of two annas.
Subsequently, the two annas share of
Madho Saran Singh was purchased by Hiranand Jha,
father of the plaintiffs, jointly with Durganand Jha,
and Dharam Dayal. Dharam Dayal was a mere benamidar for Hiranand Jha.
On the 5th June, 1916, Bisheshwar Dayal Singh
purchased six anna share in the lakhraj interest from
Deolal Pathak and others and on the 9th February,
1917, he purchased another two anna share from Mandi! Pathak.
By virtue of these purchases he came to
own the lakhraj interest to the extent of eight anna
share.
He already held the mokarrari interest to the
same extent which had devolved on him by inheritance.
Some time in the year 1917 or 1918 Hiranand Jha
and Durganand Jha, who had acquired by purchase
two anna mokarrari interest of Madho Saran Singh
S.C.R.
SUPREME COURT REPORTS
155
purchased in aecution of a rent decree the raiyati
interest in the whole village and came into possession
of it.
They thus became mokarraridars of two anna
share and raiyats of sixteen annas of t

## Text

S.C.R.
SUPREME COURT REPORTS
153
accordingly allow the appeal, set aside the judgment
and decree of the High Court and restore the decree of
the courts ·below. The appellants will be entitled to
costs throughout.
Appeal allowed.
Agent for the appellant : R. C. Prasad.
Agent for the respondent : S. P. Varma.
BADRI NARAIN JHA AND OTHERS
"·
RAMESHWAR DAYAL SINGH AND OTHERS.
rsAIYID FAZL Au, MEHAR CHAND MAHAJAN,
MuKHERJEA and CHANDRASEKHARA A1YAR JJ.]
Landlord and tenant-Merger-One of several ioint holders
of mokarrari interest acquiring portion of lakhra; interest-No
· merger-Partition amongst lessees
inter sc--lntegrity of lease,
qua lessor, not affected.
If a lessor purchases the whole of the lessee's interest, the
lease is extinguished by merger, but there can be no merger or
extinction where one of several joint holders of the mokarrari
interest purchases portion of the lakhraj interest.
A partition inter se amongst several mokarraridars does not
in any way affect the integrity of the tenancy or make each
holder of an interest in it a separate holder of a different tenancy,
and
notwithstanding
such partition
the mokarraridars remain
liable qua the lessor or the payment of the whole rent as one
tenant.
White v. Tyndall (13 App. Cas. 263) referred to.
CIVIL
APPELLATE
JuRismcnoN : Appeal from
a
judgment and decree of the High Court of Judicature
at Patna dated 14th February, 1946, in Appeal from
Original Decree No. 117 of 1942 arising out of Title
Suit No. 9 -0f 1939 : Civil Appeal No. 40 of 1950.
S. C. Misra for the appellant.
N. C. Chatterjee (P. B. Gangoli, with him) for the
respondent.
1951
Rai Brij Raj
Krishna and
Another
v.
S.K. Shaw'
and BrolhlTs.
19~1
Feb. 5.
1951
Bodri Natayan
.. lo,,,.,,
v.
Ramesluo01
Dayal Singh
arul 01/urs.
Mahajan].
154
SUPREME COURT REPORTS
[1951]
1951. February 5. The judgment of the Court was
delivered by
MAHAJAN J.-Th.is appeal arises out of Suit No. 9 of
1939 instituted in the Court of the Subordinate Judge
of Palamau by the appellants against the respondents
for a number of declarations in respect to the title to
certain lands and for an injunction restraining the
respondents from proceeding with a rent suit.
The
suit was decreed by the Subordinate Judge but on
appeal this decision was reversed by the High Court
of Judicature at Patna and the appellants' suit was
dismissed.
The salient facts of the case are as follows : Village
Darha belonged to a family of Pathaks as their ancestral lakhraj.
Over a hundred years ago the Pathaks
granted the entire village in mokarrari to the ancestors
of the family of Singhas (defendants' first and second
parties) at an annual jama of Rs. 24.
The mokarrari
interest eventually devolved on three branches of the
Singha family, each branch getting in the following
proportions : Parameshwar Dayal and others, defendants' first party, to the extent of six annas ; Bisheswar
Dayal Singh, defendants' second party, to the extent
of eight annas; and Madho Saran Singh, to the extent
of two annas.
Subsequently, the two annas share of
Madho Saran Singh was purchased by Hiranand Jha,
father of the plaintiffs, jointly with Durganand Jha,
and Dharam Dayal. Dharam Dayal was a mere benamidar for Hiranand Jha.
On the 5th June, 1916, Bisheshwar Dayal Singh
purchased six anna share in the lakhraj interest from
Deolal Pathak and others and on the 9th February,
1917, he purchased another two anna share from Mandi! Pathak.
By virtue of these purchases he came to
own the lakhraj interest to the extent of eight anna
share.
He already held the mokarrari interest to the
same extent which had devolved on him by inheritance.
Some time in the year 1917 or 1918 Hiranand Jha
and Durganand Jha, who had acquired by purchase
two anna mokarrari interest of Madho Saran Singh
S.C.R.
SUPREME COURT REPORTS
155
purchased in aecution of a rent decree the raiyati
interest in the whole village and came into possession
of it.
They thus became mokarraridars of two anna
share and raiyats of sixteen annas of the village lands.
In the year 1918, Title Suit No. 59 of 1918 was instituted in the court of the Subordinate Judge of Palamau
for partition of the lands situate in several villages and
belonging to the family of the defendants' first and
second parties.
The Jhas were impleaded as defendants
in the suit, being co-sharers in part of the property in
suit.
This suit was decreed in the year 1921, and in
the final partition an allotment of two annas share in
Darha village was made in their favour.
The remaining fourteen anna share excluding khatian 1, 3 and 6
was allotted to the defendants' first party. These three
khatians were allotted to Bisheshwar Dayal Singh and
in exchap.ge for the remaining portions of his interest
in that village he was given some property in village
Holeya.
The result of the partition proceedings was
that the defendants' first party came to hold fourteen
anna mokarrari interest in village Darha, Bisheshwar
Dayal Singh's interest was limited to three khatians
only, and the Jhas got a separate allotment for their
two anna share in the mokarrari.
It appears
that
some time about the year
1926 the lakhraj interest
holders, i.e., the Pathaks and Bisheshwar Dayal Singh,
were in default
in
payment of
the cess
due to
Government. On the 17th August, 1926, proceedings
were taken against them for recovery of the cess and
their interest was sold in execution of a certificate on
the 18th October, 1927, to one Bijainandan Sahay. The
sale obviously was of the lakhraj interest.
This was
confirmed on the 19th December, 1927; and a sale certificate was issued on the 10th March, 1928.
This was
followed by delivery of possession on 15th July, 1928.
Possession was obtained by one Kamta Prasad
who
had acquired this interest from Bijainandan Sahay on
the 20th April, 1928.
On the 1st May, 1933, Kamta
Prasad transferred his interest in the village
to
the
plaintiffs who thus became proprietors of sixteen anna
share in the village and mokarraridars as to two anna
3-1 S.C. India/68
!951
Badri Naral•
'
:Jha
and Oth"s
v.
Rameslrwar
DayalSingi
alid Olhlrs.
Mahajan].
•
!95!
Batfri Naraiw.
]ha
and Others
v.
Ramtshwar
Dayal Singh
and Others.
MallajanJ.
156
SUPREME COURT REPORTS
[1951]
share and raiyats of the entire sixteen annas in the
whole village.
On the 21st September, 1934, the defendants' first
party as mokarraridars brought a suit against the
plaintiffs for arrears of raiyati rent for the years 133839 F. to the extent of six annas share and for the years
1340-41 F. to the extent of fourteen anna share claiming that under the partition decree they got . a fourteen
anna share in the mokarrari interest in the village.
Plaintiffs contested the
suit alleging that Bisheshwar's
mokarrari interest had merged in the lakhraj interest
that was purchased by him from the Pathaks in the
years 1916-17, and that by the sale under the Government's certificate his whole eight anna interest in the
village including both the lakhraj and the mokarrari,
had passed on to the plaintiffs and that the defendants'
first party could only claim rent from them to the
extent of the six anna share in the mokarrari.
This
plea was disallowed and the defendants' first party's
claim for rent was decreed in full. The decree was upheld on appeal and second appeal. The question of
title was, however, left open. In the year 1938 another
suit for rent was filed by the defendants' first party as
mokarraridars to recover fourteen anna share of the
rent for the years subsequent to fasli 1341. As a result
of this suit, the plaintiffs brought the present suit for
declaration and injunction on the allegation that the
eight anna mokarrari interest of Bisheshwar Dayal
Singh had merged in his lakhraj interest, that by the
certificate sale Bisheshwar Dayal Singh lost all his
interest in the village both lakhraj and mokarrari by
reason of merger, that the partition decree of the year
1921 was illegal and in any case, under that decree the
defendants' first party got only six anna mokarrari
interest and were entitled to realize rents from the tenants only to that extent. An injunction was also claimed restraining the defendants from proceeding with the
rent suit.
In the plaint, it was alleged that there was
a private partition between the mokarraridars by virtue
of which the lands of village Darha were divided between the three sets of mokarraridars, each set being
S.C.R.
SUPREME COURT REPORTS
157
in separate possession of its own separate and defined
shares. It was also pleaded that there was · another
partition between the ·proprietors of the lakhraj interest, that is, between Bisheshwar Dayal Singh, on the
one hand and Deolal Pathak, Neman Pathak and
Surajnath Pathak on the ·other, by virtue of which the
lands that were in mokarrari patties of Parmeshwar
Dayal Singh and others and Hiranand Jha and Durganand Jha fell in the patti of Dcolal Pathak and others,
while the lands that were in the mokarrari patti of the
defendants' second party fell in his proprietary lakhraj
patti and that as a result of these partitions the
mokarrari interest of the
defendants'
second
party
merged in his lakhraj interest and under a certificate
sale the whole of his interest passed to the plaintiffs.
The trial Judge held that both the partitions alleged
by the plaintiffs in paragraphs 5 and 8 of their plaint
were proved
and that the mokarrari interest of
Bisheshwar Dayal Singh merged in his lakhraj interest
and that at the certificate sale the purchaser acquired
his complete interest both lakhraj and mokarrari along
with the eight anha lakhraj interest of the
Pathaks
and that the defendants' first party were mokarraridars of six anna interest in the · village and to that
extent were entitled to a decree in their rent suit and
could not claim a decree for rent to the extent of
fourteen anna share. The High Court in · api>cal held
that none of the partitions alleged by the plaintiffs
were proved and that the mokarrari interest of eight
annas could not merge in the lakhraj interest of sixteen
annas held jointly by Bisheshwar Dayal Singh with the
Pathaks. As a result of this decision the plaintiffs' suit
was dismissed.
In this appeal it· was contended by the learned
counsel for the appellants that the High Coiirt had
erroneously held that the two partitions set up by the
plaintiffs in paragraphs 5 and 8 had not been
proved.
It was argued that the evidence on the record, both
documentary and oral, fully established the fact of the
two partitions and that in view of these partitions it
should have been held that Bisheshwar Dayal Singh
Ba4ri Narain
Jha
au Ollitrs
v.
Rmn11hwar
Dayal Singh
and Othm.
Mahajan].
J95J
Babi Narain
]ha
and Others
v.
&im1thwa1
Dayal si.,h
-
01/wr1,
Mafuiiaa].
158
SUPREME COURT REPORTS
[1951]
became separate owner of eight anna lakhraj interest
and in that interest his mokarrari interest of eight
annas merged, and that under the certificate sale the
whole of this interest passed on to .the purchaser in
execution and that being so, the defendants' first party
could oniy maintain a suit for recovery, of rent from
the raiyats to the extent of their six anna mokarrari
interest.
In our opinion, this appeal can be disposed of on a
short point without taking into consideration the respective contentions of the parties raised before us or
urged in the two courts below.
The plaintiffs'
case
rests solely on the allegation of merger
of the eight
anna lakhraj interest of Bisheshwar Dayal Singh with
his mokarrari interest to the same extent. It, however,
seems to us that there was no scope for the application
of the doctrine of merger to the facts disclosed by the
plaintiffs in their plaint. If the lessor purchases the
lessee's interest, the lease no doubt is extinguished as
the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the
lease . if one of the several lcssccs purchases only a part
of the lessor's interest. In such a case the leasehold
and the reversion cannot be said to coincide.
It was
the plaintiff's case that mauza Darha was originally
granted in mokarrari under a single contract of lease
and it was by inheritance that the lessee's interest
devolved on three branches of the family, Bisheshwar
Dayal Singh getting an interest of eight annas in the
whole of the leasehold .. He then purchased a six anna
interest in the entire J'C11ersion in the year 1916 and
another two anna interest in it in the year 1917.
By
these purchases he became a joint owner in the entire
lakhraj . holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in
the village or the entire mokarrari interest therein.
There was thus no coalescence of the interest of
the
lessor and the lessee in the whole of the estate which
was subject to lakhraj and mokarrari interests and
that being so,
the mok:irrari interest of Bishcshwar
Dayal Singh did not merge in his lakhraj interest.
S.C.R.
SUPREME COURT REPORTS
159
Mere purchase by Bisheshwar Dayal Singh of portions
of the lakhraj interest could not bring about an extinction of the lease or break its integrity as he was only
one of the· several joint holders of the mokarrari interest. An inter se partition of the
mokarrari interest
amongst the mokarraridars as alleged by the plaintiffs
could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy
in law constitute , but a single tenant, and qua the landlord they constitute one person, each constituent part
of whic_h possesses certain common rights in the whole
and is liable to discharge common obligations in
its
entirety.
In the words of Lord Halsbury in White v.
Tyndal/(1), the parties to whom a demise is made hold
as tenants in common but what they covenant to pay
is one rent, not two rents and not each to pay half a
rent but one rent.
There 'is a privity of the estate
between the tenant and the landlord in the whole of the
leasehold and he is liable for all the covenants running
with the land. In law, therefore an inter se partition
of the mokarrari interest could not affect the integrity
of the lease and it could not be said that Bisheshwar
Dayal Singh under the alleged partition became a
mokarraridar wider· another contract of
lease.
Such
partitions amongst several lessees inter se are usually
made for convenience of enjoyment of the leasehold
but they do not in any way affect the integrity of the
tenancy or make each holder of an interest in it as a
separate holder of a different tenancy.
In the present
case there was not even an allegation that the tenancy
was severed and the several tenancies came into existence as a result of the partition qua the landlord.
Similarly the allegation of partition inter se among the
several owners of the lakhraj holding could not in any
way affect the integrity of the lease in the absence of
an allegation of a fresh contract between the split up
owners of the holding and the different owners in the
mokarrari interest.
The lakhraj holding in the village
still remains a single holding and it was not alleged
that it was split up in different holdings.
All owners
(I) 13 App. Cas. 263.
21
!951
.Badri Narain
Jlia
and Others
v.
Rameshwar
Dayal Singh
and Others.
Mahajan].
195!
Badri Natain
Jh•
and Othm
v.
Rameshwar
Dayal Singh
and Oth1r1.
Mahajan].
160
SUPREME COURT REPORTS
[1951]
of the lakhraj interest are jointly responsible for payment of the cess to Government and it was because of
their default in payment of the cess that the whole
lakhraj interest was sold in the certificate sale. In
this situation none of the conditions necessary for the
application of the doctrine of merger can be said to
have been made out by
the allegations made
m
the plaint. On the plaintiffs' own case the lease is
still a live one in respect of the six arma interest
of the defendants' first party and in these circumstances it is riot possible to hold that it has become
extinct to the extent of eight anna interest of- Bisheshwar Dayal Singh in the absence of any allegation that
any fresh contract, express or implied, was arrived at
between the parties. The leasehold has not in any
way been drowned in the rexersion and both lakhraj
and mokarrari interest are still intact.
For the reasons given above we agree with the decision of the High Court that Bisheshwar Dayal Singh' s
interest in the mokarrari did not
merge
in
his
lakhraj interest and that under the certificate sale it
did not pass to the execution purchaser; on the other
hand, it vested in the defendants' first party by
reason of the family partition and they became entitled
as mokarraridars to recover rent from the
plaintiffs'
raiyats to the extent of fourteen annas share.
All that
passed at the certificate sale to the execution purchaser
and subsequently
to the
plaintiffs
was
merely the
lakhraj interest of_ the
Pathaks and of
Bisheshwar
Dayal Singh and it could not be that at this sale qua
one judgment-debtor a larger interest passed - to the
execution purchaser than in respect of the other debtor.
In view of our decision that the doctrine of merger has no application to the facts of the case, the
plaintiffs' case is bound to fail.
We accordingly hold
that there is no substance in this appeal and we
dismiss it with costs.
Appeal dismissed.
Agent for the. appellant : S. P. Varma.
'
Agent for the respondent : P. K. Chatteriee.
'
'