JUDGMENT Pearson, Turner and Oldfield, JJ.
1. The lambardar collecting rents on account of himself and the other co-[517]sharers in a revenue-paying mahal is entitled to apply the collections, firstly, to the payment of Government revenue and village-expenses, and then, after deducting what (if anything) is duo to himself as haq lamhardari, is bound to divide surplus collections among the several co-sharers in proportion to their shares. Ordinarily then profits are due as soon as there is a divisible surplus in the hands of the lambardar. But it not unfrequently happens that by agreement or custom a date is fixed for taking the accounts and dividing the profits, in this case any divisible surplus which may have accrued prior to that date is due on the date so fixed, and the divisible profits in respect of any arrears which may be collected after that date are due at the time they reach the hands of the lambardar or his agent.
Spankie, J.
2. The share, it appears to me, becomes due at the end of the agricultural year, when the rents have been collected and the Government revenue has been paid. The village-accounts should then be made up. Probably custom or agreement between the shareholders regulates the practice. A Court dealing with a question of this nature should ascertain whether there is any custom or agreement between the shareholders to which it might refer for the determination of the date from which limitation should run. Where there is no custom or agreement, the safest guide would be the end of the agricultural year, as denned in Clause 8, Section 3 of Act XIX of 1873, that is to say, the thirtieth day of Juno. This also is the date fixed in the Rent Act as the day upon which the agricultural year expires--vide Sections 31, 34, and 35 of Act XVIII of 1873. It may be said that the lambardar may not have been able to collect the rents and that there are no profits to distribute, or that each share is less than the shareholder is ordinarily entitled to receive. In such a case the share would still be due at the close of the agricultural year on the assumption that the rents have been collected, and it would be for the lambardar to show that there wore no profits, and that he had exercised all due diligence as lambardar and trustee for the sharers in collecting the rents and income of the estate. So in all disputes between co-sharers, whatever might be the nature of the defence, the share would become duo at the expiration of the agricultural year. I would, therefore, say that where no custom is found to exist regulating the practice, or where there is no agreement between the shareholders on the point, the share becomes due on the 30th June in each year.
Robert Stuart, C.J.
3. I concur substantially in the opinion of Mr. Justice Spankie. I observe in the case that was before Mr. Justice Turner and myself in April of last year, Girdhari Lal v. Lahori (unreported), Special Appeal No. 1336 of 1875, in which we made a remand, we expressed the opinion that the limitation of three years ran "from the date when the profits became payable," or otherwise, as we go on to explain, "in the absence of any custom or agreement to the contrary, profits become due from the time when they reach the lambardar's hands," which I suppose must be taken to be at the end of the agricultural year, that is, in this case, on the 30th of Juno of each year, hut it might be well to enquire whether there is any custom or agreement on the subject in the district of Aligarh, where the property hero in suit is situated.