JUDGMENT
Coutts, J.
1. These two appeals arise out of two suits, one for rent brought by Musammat Shahbzadi Begum against Ghulam Rasul Khan and others, in which the defendants contended, that the rent was payable to Musammat Kokila, a Mukarraridar, under Musammat Shahzadi, the other a suit brought Shazadi, claiming the rent which had been deposited by Ghulam Rasul and others in the rent suit.
2. The case of Musammat Shabzadi is that she purchased 2 annas 11 dams 4 kauris of village Mai Fatehpur in 1916 form Warasat Husain who had in the previous year purchased it at a revenue sale. It appears that this 2 annas 8 dams share in the village which belonged to M. Khairat Ahmed. When Khairat Ahmad died he left two widows–Dargahan and Jamilan, two sons–Fazlur Rahman and Mukhtar Ahmad, and one daughter, Kulsum Jamilam, one of the widows, sued for dower, and having got a decree purchased Khairat Ahmed’s 6 annas 8-dams share at an auction-sale. Subsequently there was a family settlement by which Fazlur Rahman got a 2-annas 11-dams 4 kauris share and later he granted in lieu of dower what has been called a Mukarrari of this to his then wife, Musammat Kokila. Afterwards a separate account was opened for Fazlur Rahman’s share and what happened was that the share was sold for arrears of revenue and purchased by Warasat Husain, who transferred it to Shahzadi Begum in 1916.
3. The main question in the suit, and the only question with which we are now concerned, is whether by the revenue sale the interest which Fazlur Rahman conveyed to his wife Kokila, and whish has been called a Mukarrari, was annuled or not Admittedly Section 54 of Act XI of 1859 applies to the present case. This section runs as follows: When a share or snares of an estate may be sold under the provisions of Section 13 or Section 14, the purchaser shall acquire the share or shares subject to all incumbrances, and shall not Require any rights which were not possessed by the previous owner or owners,” and the point here is whether the so-called Mukarrari granted by Fazlur Rahman to Kokila is an incumbrance within the meaning of this seition or not. Both the Courts below have found that it is an incumbrance, and it is against this finding that Shabzadi Begum has appealed in both cases.
4. Now what was granted by Fazlur Rahman to his wife Kokila was not really a Mukarrari; it was merely a right to collect rent from the existing Mukarraridars whose Mukarrari covers the whole share, and what is contended by the learned Government Advocate is that it is not an incumbrance on the land but merely a personal right not attesting the land and consequently not such an incumbrance as is referred to in the section. It is true that in Jarraw Kumari Saheba v. Hanifuddin Akanda 4 Ind. Cas. 471 : 14 C.W.N. 389 there is a remark at the end of the judgment which goes to support this contention, but this remark is purely obiter and in my opinion it is not the correct view of the law. The same question was fully discussed in regard to a patni tenure in Raj Kumar Mazumdar v. Probal Chandra Ganguli 9 C.W.N. 656. In that case it was held that the existence of a patni tenure does not bar the proprietor from treating an intermediate tenure between himself and the patnidar, and exactly the same reasoning applies to the case of a proprietor and a Mukarraridar. It may be that the tenancy whish is treated is not a Mukarrari tenure, but it is certainly in my opinion an incumbrance. It is urged that having granted Mukarrari of the whole share, all that remains in the proprietor is his proprietary right and when he leases any portion of this proprietary right, he is merely parting with a portion of such right and not creating an incumbrance. This argument would be correct if the proprietor was selling a portion of his proprietary right, but in the present case what was done by Fazlur Rahman was not to part with his proprietary right, but merely in consideration of an annual rent of Rs. 29 to give to his wife the right of collecting rents from the Mukarraridars. This, to my mind, is clearly an incumbrance and in my opinion the view whish has been taken by the Courts below is correct.
5. I would accordingly dismiss these appeals with costs.
Macpherson, J.
6. I agree. The only rights which a purchaser of a separate account at revenue sale acquires by his purchase are, under Section 54 of the Bengal Land Revenue Sales Act, those which the owner of the separate account possessed at the time of the sale. In this instance, the rights of the previous owner were affected by the limitation whish Fazlur Rahman had put upon them in 1906 in favour of his then wife, the present respondent; the purchaser accordingly secured them subject to the same limitation, I also agree that it comes within the terms incumbrance” expressed in Section 54.
