Case: Badri Narain Jha And Others Vs. Rameshwar Dayal Singh And Others

appeal it was contended by the learned counsel for the applts. that the H. C. had erroneously held that the two partitions set up by the pltfs. in paras. 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 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 defts. first party could only maintain a suit for recovery of rent from the raiyats to the extent of their six anna mokarrari interest.9. In our opinion, this appeal can be disposed on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two Cts. below. The pltfs. 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 pltfs. in their plaint. If the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both and landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. It was the pltfs. case that mauza Darha was originally granted in mokarrari under a single contract of lease and it was by inheritance that the lessees 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 reversion 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, mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhraj interest.10. 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 separtition of the mokarrari interest amongst the mokarraridars as alleged by the pltfs. 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 which 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. Tyndall,(1888) 13 A. C. 263, 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 separtition 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 under 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 ease, 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 seamong the several owners of the lakhraj holding subject to mokarrari interest 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 it 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 of the lakhraj interest are jointly responsible for payment of the cess to Govt. and it was because of their default in payment of the cess that the whole lakhrai 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 in the plaint. On the pltfs. own case the lease is still a live one in respect of the six anna interest of the defts. first part and in these circumstances it is not 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 reversion and both lakhraj and mokarrari interest are still intact.1

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. In our opinion, this appeal can be disposed on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two Cts. below. The pltfs. 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 pltfs. in their plaint. If the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both and landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. It was the pltfs. case that mauza Darha was originally granted in mokarrari under a single contract of lease and it was by inheritance that the lessees 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 reversion 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, mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhraj interest.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 separtition of the mokarrari interest amongst the mokarraridars as alleged by the pltfs. 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 which 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. Tyndall,(1888) 13 A. C. 263, 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 separtition 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 under 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 ease, 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 seamong the several owners of the lakhraj holding subject to mokarrari interest 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 it 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 of the lakhraj interest are jointly responsible for payment of the cess to Govt. and it was because of their default in payment of the cess that the whole lakhrai 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 in the plaint. On the pltfs. own case the lease is still a live one in respect of the six anna interest of the defts. first part and in these circumstances it is not 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 reversion and both lakhraj and mokarrari interest are still intact.