JUDGMENT
Jwala Prasad, J.
1. The plaintiffs are the appellants They brought a suit out of which this appeal has arisen in the Court of the Munsif of Purulia for recovery of possession of the lands in suit after a declaration of their title thereto.
2. The lands in suit are alleged to have been settled with four persons, Juthu Chatar, Golam Chatar, Shridan Chatar and Nabin Chatar, by means of a lease, dated the 12th Magh 1286 (corresponding to the 24th of January 1890;. Defendants Nos. 2 and 3 are the sons of Golam Chatar, defendants Nos. 4 and 5 are the sons of Shridan Chatar and defendant No. 6 is the son of Nabin Chatar.
3. The plaintiffs’ case is that the aforesaid four persons who originally took the lease had four equal shares in the lands, the annual jama of which was Rs. 312 for the entire lands, and that they were holding the lands separately by dividing them in accordance with their shares for the purpose of cultivation, that defendants Nos. 2 to 5 being unable to pay rent for their shares of the land and to cultivate the same for want of money, surrendered ‘ their 8-annas share, the annual rental of which was Rs. 1-14, to the plaintiffs by a registered deed of relinquishment, dated the 4th March 1916, and thus the plaintiff became entitled to khas possession of half his share of the land covered by the original lease of 24th January 1890 described in schedule I to the plaint. The lands surrendered by defendants Nos. 2 to 5 are described in schedule II to the plaint.
4. The plaintiffs allege that when they went to take possession of the land in schedule II in Asadh 1323, the defendant No. 1 resisted them by force and prevented them from taking possession of the same.
5. The defendants Nos. 2 to 5 filed written statements supporting the claim of the plaintiffs and admitting that they had willingly surrendered the lands on account of their inability to cultivate them and to pay rant therefor. The defendant No. 6, who has 4-annas share in the lands originally leased, also filed a written statement supporting the case of the plaintiffs.
6. The defendant No. 1, having 4 annas share only, resisted the plaintiffs’ claim and filed a written statement. The defendant in his long written statement set up the title of a third person as the proprietor of the land and impugned the title of the plaintiffs and stated that the kabuliyat of the 24th January 1890 in favour of the plaintiffs’ ancestor was executed through coercion. The defendant farther pleaded that the surrender, if any, of a portion of the entire lands leased is invalid and the plaintiffs cannot acquire any title by virtue of the alleged partial surrender.
7. In paragraph 10 of the written statement the defendant set up a ladawi or surrender by defendants Nos. 4 and 5, in his own behalf, of their share in the lands in dispute, by means of a deed executed on the 14th day of Jestha 1322.
8. Upon the pleas taken by the defendant, five issues were framed in the Court of first instance. We are concerned here only with Issue No. 4.
9. This issue is in the following terms:
Have the plaintiffs any title to the land in suit?
10. The Munsif held that the plaintiffs are the landlords of the lands covered by the lease, dated the 24th January 1890; that the defendants Nos. 2 to 5 are co-tenants of the lands; that all the co-sharers had divided the lands according to their shares that the lands in schedule II fell to the shares of defendants Nos. 2 to 5 and that then the defendants Nos. 2 to 5 surrendered the lands in schedule II in favour of the plaintiffs. The Munsif was further of opinion that even if the lands were undivided and defendants Nos. 2 and 5 were joint tenants thereof with defendants Nos. 1 and 6, the surrender of their undivided shares in favour of the landlords was valid, In support of this proposition the Munsif relied upon a decision of Banerjee, J., in Peary Mohun Mondal v. Radhika Mohun Hazra 8 C.W.N. 315, which was upheld in letters Patent Appeal by Maclean, C.J., sitting with Bodilly and Mookerjee, JJ. The Munsif has relied also upon the case of Gangcn Chandra Choudhury v. Alak Chand Saha 18 Ind. Cas. 996 : 17 C.W.N. 698.
11. On appeal the District Judge set aside the decision of the Munsif and dismissed the plaintiffs’ case. The learned District Judge concludes his judgment in the following words: “On these ‘two findings of fact then (1) that there was no such surrender as alleged, bat rather a transfer for consideration which is illegal under Section 47 of the Ghhota Nagpur Tenancy Act, and (2) that the tenancy is a joint and undivided one, the plaintiffs’ case must fail.” As to the second ground, the learned Judge is apparently of opinion that a surrender by a so tenant of his share in an undivided holding is invalid. In this view of the law he is clearly wrong, He has tried to distinguish the case of Ganga Chandra Choudhury v. Alak Chand Saha 18 Ind. Cas. 996 : 17 C.W.N. 698 on the ground stated by him that it “was a case of one raiyat surrendering a portion of his whole holding.” But I fail to see any distinction in principle between the right of a tenant of an entire holding surrendering a portion of it and that of a co-tenant surrendering a portion of the holding according to his share in it. In both oases the surrender is of a portion of the holding, the validity of which is recognized in the said ruling. The case of Peary Mohun Mondal v. Radhika Mohun Hazra 8 C.W.N. 315 is, however, a direct case on all fours with the present one, where the surrender by a co tenant of his share in the holding was held to be good and valid. Banerjee, J., in his very elaborate and detailed judgment in that case has discussed the question from every point of view, namely, from the provisions in the Bengal Tenancy Act and the general principles applicable to such a case, and has some to the conclusion that relinquishment made in favour of the landlord by some of the several tenants of a joint occupancy holding does not operate by way of enlarging the right of the other co-sharers who did not reliuquish and by way of depriving the landlord of what ordinarily would belong to him. It was distinctly laid down that a landlord has a right of re entry in respect of the portion of the holding surrendered by a co-tenant. In the words of Maclean, C, J., who dealt with that case in Letters Patent, I would adopt the reasoning and conclusion of Banerjee, J., in that case and cannot usefully add to what is said therein. This disposes of the second ground upon which the decision of the Munsif was set aside by the learned District Judge.
12. As to the first ground, I fail to understand upon what basis the learned Judge has held that the deed, which purports to be a deed of surrender and relinquishment, Exhibit 2, by defendants Nos. 2 to 5 in favour of the plaintiffs, was a transfer for consideration. The deed itself does not make mention of any consideration but a voluntary surrender of the holding in favour of the landlords. The pleadings of the parties are also conspicuously salient upon the point. It was not the case of either party that there was any transfer for consideration created in favour of the landlord by virtue of the deed in question. The second portion of the first ground, therefore, appears to me to be unsubstantial and based upon misconception. It was perhaps resorted to with a view to support the finding of the Court that the deed of surrender was a collusive one. This leads us to the consideration of the first portion of ground No. (l), namely, whether there was “no such surrender as alleged” by the plaintiffs. The deed of surrender filed by the plaintiffs is a registered document. It was not denied either by the executants of the deed, defendants Nos. 2 to 5, or by the contesting defendant No. 1 in his written statement, or for the matter of that in the entire evidence which I have now read in the case, that the deed of surrender filed by the plaintiffs was in fact executed, The learned Judge also does not hold that the deed was not, as a matter of fact, executed, but he declines to give effect to it by impugning it as a collusive transaction and in order to hold that the surrender was collusive, the learned District Judge relied upon paragraph 1 of the written statement of the defendant. In that paragraph the defendant avers “that there is no cause of action or right for plaintiffs’ suit. Being under the control of avarice and in collusion with other defendants, they have instituted this false suit.” That statement does not refer to the deed in question, but to the present suit brought by the plaintiffs to recover possession of the lands in suit. The learned Vakil on behalf of the respondent has conceded that there is nothing in the written statement expressly or by indication stating that the deed in question, the surrender, is a collusive one. Therefore the plaintiffs did not set up in their written statement the plea of collusion with regard to the surrender alleged by the plaintiffs. The learned Judge then says that the surrender is collusive, because the reason for the surrender stated in the deed as well as in the plaint, namely, that the defendants Nos. 2 to 5 could not pay rent for the land, is false, for the defendant No. 1 is said to have paid for the whole holding, Assuming for the sake of argument that defendant No. 1 has paid the rent of the holding to the landlords, defendants Nos. 2 to 5 would be liable to him for contribution of their shares of the rent. Besides, even if the defendants Nos. 2 to 5 had bean paying rents in the past years, which they necessarily had to pay unless the holding was surrendered, they could still feel that they would not to able in future to pay ‘the rent and would very well have relinquished their shares of the land in order to protect themselves from future liability to pay rent when the land, according to them, had deteriorated and they could not cultivate the same for want of funds. This is, therefore, not a sufficient reason for holding that the deed must necessarily be a collusive one. This is the only reason upon which the learned District Judge has based his finding of collusion with regard to the dead in question. The finding of the District Judge that the surrender was collusive has, therefore, been arrived at by a wrong construction of the pleading, the writ-tan statement of defendant No, 1, and upon no evidence, and hence is liable to be questioned, in second appeal….
13. But does the question of collusion at all arise in the present case? Whether collusive or not, the surrender is valid so far as the defendants Nos. 2 to 5 are concerned. They abide by the surrender and do not want to avoid it on the ground of collusion. The surrender is, therefore, binding upon them. The defendant No. 1 is not at all affected by the collusion, if any, between the plaintiffs and the defendants Nos. 2 to 5 with respect to the deed in question, for his share in the land is cot at all touched by the deed of surrender. He had never any right to told the entire holding or anything in excess of his own share and so long as his share is not affected by the deed of surrender, I do not think that the Court can refuse to give effect to it, collusion or no collusion, I, therefore, disagree with the view taken by the learned District Judge and agree with that taken by the Munsif, whose judgment appears to me to be clearer and more precise than that of the District Judge.
14. The learned Vakil on behalf of the respondents says that upon the finding of the learned District Judge, that the land was not split up, the surrender could not be given effect to and the plaintiffs could not get possession of the specific plots in schedule II of the plaint claimed by them. I do not think that there is any substance in this contention. The plaintiffs expressly alleged in the plaint that the defendants held specified shares in the lands and that subsequent to the kabuliyat of 24th January they had divided the lands and had been in separate possession of the lands in schedule If. This statement in the plaint was not at all traversed in the written statement. The Munsif held that the defendants bad specified shares leased out to them under the deed and that they ware by division in possession of the specific land. The District Judge held that the holding was not split up, but the finding of the Munsif that the shares were well-known and definite, has not been disturbed by the District Judge. It is not disputed that the share of defendants Nos. 2 to 5, which was surrendered by the deed in favour of the plaintiffs, was 8 annas in the land covered by the lease of 1890, and in fast there is clear evidence on the point. The principle of the ruling in Peary Mohun Mondal v. Radhika Mohun Hazra 8 C.W.N. 315 already referred to will, therefore, apply. In order to apply this ruling it is not necessary that the holding should have been split up and divided by metes and bounds between the co-tenants. I, therefore, overrule this contention.
15. The result is that the decision of the District Judge is set aside and that of the Munsif restored, and the plaintiffs’ suit decreed with costs throughout.