JUDGMENT
1. Second Appeals Nos. 1337, 1356 and 1357 are connected and have been argued together. They arise out of two suits brought, respectively, by Musammat Sunder Kunwar and one Hansraj for a declaration that a certain sale did not pass the right to receive a 10 per cent, malikana allowance in respect of a Zemindari share and did not convey any interest in certain sir land. The state of the proprietary interest in this village is peculiar and is set out in the judgment of the learned District Judge. There are two bodies interested in it who are known as the muafidars and the Zemindars. In the case of this village the persons who correspond to the proprietors in the ordinary sense, who collect the rents from the tenants, let out the land and pay the Government revenue, are the muafidars. The settlement also has been made with them. The only rights which the so-called Zemindars have, is a right to receive from the muafidars a cash payment of 10 per cent, of the total rental and to hold sir land at a favourable rent which has been fixed by the Settlement Officer. So long as they pay this rent they are not liable to ejectment.
2. The appellants in Appeals Nos. 1356 and 1357 are auction-purchasers at a sale held in execution of a decree on a mortgage of the interests of two of the Zemindars, Mula and Kulua. The property sold consisted both of a fractional share in the Zemindari, that is, in the right to receive malikana allowance and of certain sir plots. Musammat Sundar Kunwar, the plaintiff in one of the two suits, is a muafidar. Hansraj and Sri Chand, the plaintiffs in the second suit, are the sons of one of the Zemindars whose interest was sold. The plaintiffs in both suits asked for a perpetual injunction restraining the appellants from realising, the malikana amount payable on the shares, which they had purchased; and Hansraj, and Sri Chand also asked for a declaration) that the plots which had been sold as sir were merely ex-proprietary-tenant holdings and that the plaintiffs might be awarded possession of them. Musammat Sundar Kunwar asked in addition for a declaration that no zemindari right passed by the sale. Both Sundar Kunwar and the father and predecessor-in-interest of the plaintiffs in the other suit, were parties to the suit on the mortgage in connection with which the sale was held. The learned Munsif dismissed both suits. The learned District Judge upheld the Munsif's decision with regard to the sir right but gave the plaintiffs a decree in respect of the malikana. Musammat Sundar Kunwar accepted the decision so far as it was against her. Hansraj and his brother filed Appeal No. 1337 of 1920 against the decision as regards the sir plots, and the defendants-purchasers, Baldeo Singh and others, filed the remaining two appeals in respect of the malikana right.
3. We take first the appeals of Baldeo Singh and others. The ground on which the learned District Judge appears to have allowed the appeal was that, in the absence of any clear specification of the nature of the right sold, he must hold that it was a muafidari and not a Zemindari right. We are entirely unable to follow this reasoning and the respondents learned Pleader is not able to support it. The interest which was sold could only be the interest which the judgment-debtors had, and that interest was admittedly the Zemindari interest entitling them to the 10 percent, malikana allowance. The respondents have, however, attempted to support the decision on another ground, namely, that this allowance was a personal right which was not transferable. We are unable to find any reason for holding that this is a non-transferable right. It is a right of a proprietary nature and the decisions which are on the record make it clear that from 1875 onwards these rights have been transferred and the purchasers have realised the malikana dues in place of their vendors. Indeed, as we have already noted, both sets of plaintiffs were actually parties to the proceedings in which the rights had been sold up in this very case. No reason has been shown us on which the judgment of the lower Appellate Court can be supported and we allow appeals Nos. 1356 and 1357 and setting aside the decrees of the Court below, restore the decree of the Munsif with costs in all Courts.
4. In Appeal No. 1337 of 1920 the appellants' contention is, that the sir, though described as sir, was really an ex-proprietary right which is non-transferable. The most important decision laying down the status of the parties in respect of these plots was a decision of the Settlement Officer of the year 1875 That decision is not on the' record but it has been referred to and quoted in several of the subsequent decisions dealing with disputes regarding the sir land in this village. What the Settlement Officer appears to have held in that case was, that there was an arrangement existing in the village whereby the Zemindars received a malikana of 10 per cent, on the rental and enjoyed their sir at a certain fixed rental, while the muafidars were in full proprietary management in all other respects, "and this arrangement," he said, "appears to have been in existence ever since the muafidars received the muafi grant." It is clear from other documentary evidence on the record that this muafi was prior to the British occupation. It is stated to have been granted originally by the Maharaja Scindia in the year 1793 when this village of Barehru belonged to the Gwalior Raj. The statement by the Settlement Officer that the muafidars were in full proprietary management in all other respects indicates that the right of the Zemindars was also to some extent a right of proprietary nature. It is further apparent from the various judgments on the record that the Revenue Authorities have consistently taken the view that the rights of these sir holders were of a proprietary nature. There is a decision of the Commissioner of the year 1892 in which he says that this land has undoubtedly been sir for many years and that it is more consistent with the intention of the Act to recognise it as connoting proprietary title rather than to treat it as not having emanated from any proprietary title whatever. Similarly, there is a decision of the Board of Revenue of the year 1936 in which the learned Junior Member held that the status of these sir holders was decided long ago in 1875 and held that they held transferable sir bearing a privileged rent. Concurring with the Court below J he refused to allow them to be treated as occupancy tenants. The same view was taken by Mr. Evans as Settlement Officer as far back as 1879 in a decision which is upon the record. On the other side three judgments of single Judges of this Court have been referred to. These judgments are not inter parties but are relied on as showing that these sir holders have been treated as mere tenants. One of these judgments is dearly irrelevant, as it deals with a case in which one of the sir holders had taken possession &£ certain land previously vacated by a non-occupancy tenant. The other two Judgments proceeded on the assumption that the sir holders were excluded proprietors under Section 50 of Act XIX of 1873. Section 50 applies to ca-sharers who were offered a settlement but refused it and had been granted a malikana allowance in consequence. These Zemindars clearly did not come within that provision. The settlement was never offered to them. It was made with the muafidars in preference and their case came under Section 53 and not under Section 50 of the old Revenue Act. We are satisfied on the evidence on the record that the Court below was right in holding that these sir holders have a transferable interest. We accordingly dismiss appeal No. 1337 with costs including in this Court fees on the higher scale.