JUDGMENT King, J.
1. This is a defendant's appeal arising out of a suit for rent. The plaintiff originally was one Abdul Karim Khan and he claimed for himself and on behalf of 7 other persons the rent due from the defendant first set in respect of the 15 his was share belonging to the plaintiff and the persons he represented. Defendant 4, Sheo Baran Singh, was joined as pro forma defendant upon the allegation that he was lambardar and entitled under the terms of an agreement between the parties to collect the rent of the remaining 5 his was share. The suit was resisted on a great number of grounds which we need not set forth in detail for the purpose of this appeal. The trial Court dismissed the suit but the lower appellate Court has taken a different view and has decreed the major portion of the plaintiff's claim. To understand the facts in dispute, it is necessary to give a brief history of the property in suit. In 1915 a 15 his was share of the village was sold to Ghulam Mohiuddin Khan and Rashid Ahmad Khan. The plaintiff and 7 others whom he represented are the representatives of the purchasers. In 1916 Sheobaran Singh and Hardeo Singh, who were cosharers in the village, sued for pre-emption and the suit was decreed on 26th September 1916. Sheobaran Singh paid up the whole of _ the preemption money and thus obtained possession of the 15 biswas. On 13th March 1920 the High Court reversed the pre-emption decree, restoring the title of the original purchasers. The latter regained possession and Sheobaran Singh withdrew the pre-emption deposit. The case went up to their Lordships of the Privy Council and on 22nd March 1927 the Privy Council reversed the decree of the High Court, restoring the decree of the Court of first instance. On 8th April 1927, Sheobaran deposited the pre-emption money and regained possession.
2. This suit was instituted by Abdul Karim, on behalf of the representatives of the purchasers, for the rent of the years 1332 to 1334-F. One of the defence to the suit was that Abdul Karim Khan was not entitled to sue alone but was bound to join all the representatives of the original purchasers. This objection is based upon the provisions of Section 266, Agra Tenancy Act, but Sub-section (1) of that section shows that the cosharers can appoint an agent to act on behalf of them all. Abdul Karim claimed to be acting as agent on behalf of them all and the objection is of no importance now, since Abdul Karim died during the pendency of the suit, and upon his death, the remaining representatives of the original purchasers were brought upon the record as plaintiffs. They expressly stated in their application, for being impleaded as plaintiffs, that Abdul Karim Khan was acting for them as the collector of rents. There is therefore no force in this objection.
3. Another point raised for the appellant is that Abdul Karim Khan and his cosharers had no authority to collect rent in respect of the 15 biswas share in the village. The plaintiff based his right upon an agreement arrived at between all the representatives of the purchasers on the one hand and Sheobaran Singh as lambardar on the other hand. It appears that after the decree of the High Court which resulted in the suit of Sheobaran being dismissed, the purchasers applied to have Sheobaran Singh removed from the post of lambardar and one of themselves to be appointed. The parties came to a compromise in the lambardari case to the effect that Abdul Karim Khan and his vendee cosharers will realise the rent of the 15 biswas share and Sheobaran Singh will realise as lambardar the rent of the 5 biswas share. An arrangement was also made regarding the arrears of rent due from tenants.
4. It is argued that Sheobaran Singh had no authority to enter into this arrangement with the purchasers. We consider that there is no force in that contention. The powers of a lambardar in an undivided mahal are laid down in Section 265 which defines the powers which were previously exercisable by lambardars. This section expressly lays down that a lambardar is entitled to do all acts incidental to the proper management of the estate with a view to the common benefit. These words are very wide and we think that they cover a case such as the present, where the lambardar for the sake of good management came to an agreement with the purchasers of the 15 biswas share that they should collect the rents of their shares separately, while he should collect the rents of the remaining 5 biswas share separately. We think that this agreement was perfectly valid' and binding upon the other cosharers. The Court below has also found that the agreement was as a matter of fact, acted upon by the parties.
5. Another point argued is that as the result of the Privy Council decree which restored the decree of the trial Court, Sheboran Singh was restored to the position of rightful owner with effect from the date when he deposited the pre-emption money in accordance with the decree of the trial Court in the year 1916 and that the plaintiff and the other representatives of the purchasers must be held to have been in possession without title from the time of the High Court decree in 1920 up to the time of the Privy Council decree in 1927. We are not prepared to accede to this argument. After Abdul Karim Khan and the other representatives of the purchasers had been successful in the High Court and had recovered possession under the decree of the High Court we think it cannot be held that they were in possession without title. It must be remembered that Sheobaran Singh with-1 drew his pre-emption money and in our, opinion Sheobaran Singh cannot be! held to have regained his title until! he deposited the pre-emption money a| second time on 8th April 1927 after', the Privy Council decree. Rulings have! been cited before us on this point onj behalf of both parties but we have not! been shown any decision which is on! all fours with the present case.
6. It would certainly be very inequitable if Sheobaran Singh should be held entitled to the profits of the property from 1920 to 1927, although he had withdrawn his pre-emption money and had the use of it throughout that long period. From the other point of view,! it seems inequitable that the purchasers] who had paid the money for the property should not be entitled to the benefits of the property until they received the pre-emption money after the decree of the Privy Council. In our opinion, Sheobaran Singh is not! entitled to the rents claimed from the! defendants first party before 8th April 1927. We agree with the Court below on this point.
7. Another point raised for the appellant is that the rent of the ex-proprietary holding of the defendants first party had not been properly fixed under Section 36, U. P. Land Revenue Act, and therefore the suit was not maintainable. It appears that in the year 1923 Abdul Karim Khan applied to the Collector, as proprietor and collector of rent, for having the exproprietary rent fixed upon Sohan Pal, Sher Pal and Ram Dei. Sher Pal is the appellant before us. Sohan Pal is his brother and Mt. Ram Dei his mother. The rent' claimed was over Rs. 926. On 22nd September 1923 a compromise was filed by the parties agreeing that the rent should be fixed at Rs. 570 per annum. The compromise was signed by Sohan Pal and by a barrister on behalf of the other two tenants. The Revenue Court fixed the rent according to the compromise. Sohan Pal also executed bonds _ on the same day as head of the family, for payment of arrears of rent in accordance with the compromise and for arrears of rent due in respect of an occupancy holding under a decree. For the appellants it is contended that Sher Pal Singh, the appellant, was not properly represented in those proceedings and they are not binding upon him and the rent was not fixed in accordance with the provisions of Section 36. For the respondents it is argued that these proceedings arc binding and operate as res judicata. We find that it is not necessary to go into the question how far these proceedings may be binding upon Sher Pal Singh and Mt. Ram Dei because it appears from the judgment of the trial Court that the rates of rent claimed were not disputed by the defendants. There is therefore no force in the contention that the plaintiff is not entitled to the amount of rent claimed upon the ground that it was not properly fixed under Section 36.
8. Another important point which has been raised for the appellant is that the whole suit has abated. On 7th June 1928 Abdul Karim Khan who was then the sole plaintiff, died. On 23rd June his daughter Aijaz Fatima applied for having her name substituted as heir and on 11th July 1928 the other representatives of the original purchasers applied to be impleaded as plaintiffs. It appears however that Abdul Karim Khan left as his heir his daughter and two brothers and the brothers were never brought upon the record. It is argued that on account of the fact that the brothers were not brought upon the re-icord the whole suit automatically abated !three months after the date 'of Abdul Karim Khan's death.
9. The lower appellate Court took into consideration an affidavit filed before that Court to the effect that the other heirs of Abdul Karim Khan have relinquished their right in favour of his daughter. On that ground the Court below thought it was not proper to dismiss the suit on the ground of abate-,ment. In our opinion the Court below iwas not right in treating the affidivit las a transfer of the right of the remaining heirs in favour of Kaniz | Fatima. The other heirs might if they pleased relinquished their rights, but la mere relinquishment would not have the effect of transferring their rights ito Kaniz Fatima. In our opinion, it | must be held that the suit abated as ! regards the brothers of Abdul Karim 'who were not brought upon the record. They are only entitled to a half biswa share, so the suit must be held to have abated to the extent of a half biswas out of 15 biswas. It has been argued for the appellant that the suit does not abate merely to this extent, but thewhole suit must be held to have abated,-The ruling in Haidar Husain v. Abdul Ahad [1908] 30 All 117 was cited, but we think that the case was distinguishable upon the facts as the suit was for the demolition of a certain building. We think that the question of abatement must be considered with reference to the subject-matter of the suit. It was not possible to pass a decree for the demolition of a small portion of the building, but there is no difficulty in giving a decree for a definite fraction of a sum of money. No clear authority has been shown to us for holding that the suit must be held to have abated entirely, merely because all the heirs of one of the plaintiffs has not been brought upon the record. It has also been, argued that a suit for the rent of a portion of a holding is not maintainable. In. answer to this we need only say that this point was not taken in the grounds of appeal or argued before the lower appellate Court and we cannot permit it to be raised for the first time, in arguments.
10. We accordingly allow the appeal to this extent, only that we vary the decree of the Court below by deducting a 1/30th share of the sum decreed, namely, Rs. 66-10-8. In other respects we maintain the decree of the Court below. Parties will receive and pay costs in proportion to success and failure throughout.