1. These second appeals arise of two suits for profits brought by the plaintiff-appellant against one Matabadal, Iambardar, under Section 164, Tenancy Act. During the pendency of the suit Matabadal died, and the name of his son Deosaran was substituted as defendant on the allegation that he was the legal representative of his father Matabadal Singh, lambardar. Both suits were decreed by the Assistant Collector on the basis of gross collection, there being a finding that the lambardar had shown negligence in collection. This finding was based on the fact that his collection resulted in there being Rs. 200 for division among the cosharers, whereas collection of the total sum recorded as rental would have made no less than Rs. 2,565 available for division. It was also found by the trial Court that the deceased lambardar Matabadal had filed about half a dozen suits for arrears of rent, but that these too had been withdrawn by his son, presumably at a later date when the son was appointed lambardar. The Assistant Collector also decreed against the defendant profits on the basis of what the lambardar could have collected from tenants of the sir and khudkasht land of particular cosharers.
2. In appeal the District Judge of Benares held that the evidence did not justify a finding of negligence, that there was no sufficient evidence to show that the lambardar was the agent of the cosharers generally for the collection of rent in respect of khudkasht and sir lands. He accordingly reduced the decree to a decree based on actual collections from the lands other than sir and khudkasht.
3. The plaintiff has appealed. The first ground of appeal argued before me is that the lower appellate Court invoked evidence which was not relevant to the matter in order to rebut the allegation of negligence. Reference is specifically made to the District Judge’s remark that collection was difficult because of the pendency of partition proceedings. It is urged that the partition proceedings had not commenced during the years in respect of which this suit was brought. To this objection there are two replies. The District Judge has not stated that partition was pending during the years in respect of which the claim was brought, His point is that at the time of writing his judgment in appeal “there is a partition” pending. He goes on to say “this almost always leads to difficulties in rent collection.” The remark is loose. He was not dealing with difficulties in rent collection of the future, but during the years in respect of which the claim was made. His meaning must, however, be that, where you find a partition suit had been brought, it indicates disagreement between the cosharers precedent to the date when suit is brought.
4. It is difficult to say that this consideration could not be entertained by the District Judge. But this is not the only consideration on which he found that rent collection was difficult. He has mentioned that on the death of the lambardar no one could be induced to take his place and the village had to be taken under the management of the Collector temporarily. Lastly he has mentioned that the Sajawal employed by the Collector has given evidence that he tried to collect rent for the year in suit and made little progress. It comes then to this: that the District Judge has mentioned one reason for rejecting the allegation of negligence or rather rejecting the inference of negligence arising from the collection being much below the rent roll, and that reason is not of great strength. It is, however, a reason that was admissible as evidence. He has mentioned other reasons which have not been shown to be devoid of any force. He has, I may mention, rightly stated that negligence cannot be based merely on short collections. He has pointed out that the trial Court was wrong in inferring negligence from the fact that only Rs. 200 were available for distribution, whereas, if the full rent roll had been collected, Rs. 2,500 would have been available. The result is, I find, that the District Judge, rightly or wrongly, has come to the conclusion that the evidence did not justify a finding of negligence. It cannot be said that in coming to this conclusion he admitted any evidence which was entirely inadmissible. He may have given too much weight or too little weight to the evidence, but in second appeal we are not concerned with this. I hold that the finding of the lower appellate Court, that there was no negligence, is a finding of fact with which this Court cannot deal.
5. The appellant’s counsel has referred me to a decision of this Court in which it was settled that in a particular case a finding against negligence was a finding of mixed law and fact. It may have been so in that case. It is always a question of law what sort of evidence is admissible to prove negligence, and presumably what sort of evidence is admissible to disprove an initial inference or presumption of negligence. But nothing has been said in this case to show that any evidence used by the District Judge was not of a nature admissible for such a purpose. Difficulty in making collections is clearly relevant to explain the small amount collected. What was said is that certain facts relied on by the District Judge were not proved. Thus it is not permissible to urge, except on that ground, that there was no admissible evidence to prove these facts.
6. As regards the question of the exclusion from consideration by the District Judge of the sir and khudkasht lands, the District Judge’s reason is that the evidence to fix the lambardar with responsibility for collecting profits thereon was too vague. The appellant’s counsel points to a tabular statement produced by the patwari and apparently verified by him in his evidence. This statement cannot be evidence that the lambardar made himself responsible for the collection of rent in respect of these sir and khudkasht lands. It can only be evidence that, assuming such responsibility and assuming total collection the sum would have been so much. There appears to me to be a strong presumption against a lambardar being responsible for the collection of the rent due from the private tenants of co-sharers holding sir and khudkasht. In order to support the plaintiff’s claim in respect of these collections, that, they should be accounted for by the lambardar, it would be necessary not merely to fix the lambardar with responsibility for their collection, but also to show that he was authorized by the individual co-sharers having made these collections to include them in the general account. The evidence clearly fell far short of this.
7. During the course of hearing the case some misapprehension was shown by the counsel of the appellant as to the right of the plaintiff, his client, to get a decree against the son of the lambardar originally sued. It appears that Deosaran, the son, never objected to being brought on the record as legal representative of his father Matabadal Singh, and as in possession of assets. This being so, the question of his liability could not arise. If he had taken up the position that there were no private assets of his father and that he was joint with his father, and as such was in possession of the joint family property by survivorship and not as legal representative in possession of assets, it would have been impossible to make him liable. A son cannot be made liable for the debts incurred by his father in a personal capacity such as a lambardar, nor can he be made liable for negligence shown by the father in that personal capacity, unless he has personal assets of the father in hand. The case of Bharat Singh v. Tej Singh  40 All. 246, proceeded on the assumption that the son had not objected to being brought on the record as a legal representative in possession of assets.
8. For the reasons given above, I find that no interference in second appeal with the decision of the District Judge is justified and dismiss both appeals with costs.