Makhan Lal And Ors. vs Sagar Mal on 28 November, 1908

Allahabad High Court
Makhan Lal And Ors. vs Sagar Mal on 28 November, 1908
Equivalent citations: (1909) ILR 31 All 49
Bench: J Stanley, Kt., Banerji


JUDGMENT

John Stanley, Kt., C.J. and Banerji, J.

1. This appeal arises in a suit for partition of a rent free holding. Both the Courts below granted the plaintiff a decree. This appeal has been preferred by one of the defendants, Sagar Mal, and the only ground of appeal pressed before us is that in the case of a rent free grant, as of any other tenancy coming under the Agra Tenancy Act, a Civil or a Revenue Court is prohibited by Section 82, Clause (2), of the Act from entertaining a suit for partition. We are of opinion that this section does not apply to a rent free grantee. The section in question falls within Chapter II, which deals with the devolution, transfer and division of tenancies.” A tenant is defined in Section 4, Clause (5), and does not include a rent free grantee. A rent free grantee, as also a mortgagee of proprietary right, is by that definition expressly excluded. Consequently a rent free grant does not appear to us to be a “holding” within the meaning of Section 32. The word “holding” in that section means, we think, the holding of a tenant as defined by thet Act. We may point out that the heading of Section 32 is: “Division of tenancies,” that is the division of the holdings of tenants as denned in Section 4. We may also point out that Chapter X of the Act deals with the resumption of rent free grants. A separate I Chapter in the Act is devoted to these grants. This view was expressed by our brother Richards in the case of Abdul Karim v. Ramzan Weekly Notes 1908 p. 197. Our learned brother, after referring at length to some of the sections of the Agra Tenancy Act, held that a suit for partition of land alleged to be rent free is not excluded from the jurisdiction of the Civil Court either by Section 233(k) of the Land Revenue Act or by Section 32 of the Agra Tenancy Act. We therefore agree in the view expressed by both the Courts below and dismiss the appeal with costs.

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