Judgement Appeal (No. 138 of 1919) from a judgment and decree of the High Court (June 27, 1916) affirming a decree of the Subordinate Judge. On June 14, 1846, one Mathura Nath Ghosh, the owner of mauza Israin Kalan, granted a mukarrari lease of about 1242 bighas situated within the mauza; those lands were known as Jadua patti. The lessees were Dhir Nath Tiwari and Loke Tiwari, who were members of a joint Hindu family. The mukarrari lease by its terms was granted for agricultural purposes. On August 31, 1856, Mathura Nath Ghosh granted a patni lease of the whole mauza to Kalit Nath Tiwari (the son of Loke Nath) and one Tej Narayan Tiwari, the latter not being a member of the joint family ; in 1858 Kali Nath bought the rights of Tej Narayan in the patni. In 1907 the appellants purchased the patni at a sale for arrears of rent. In 1910 the appellants instituted the present suit against the respondents—namely, the heirs of Kalit Nath Tiwari and another defendant not material to the appeal. By their plaint they claimed (1.) a declaration that Jadua patti was part of the patni settlement of August 31, 1856; (2.) a declaration that the defendants had no mukarrari right in Jadua patti; and (3.) khas possession of the patti with mesne profits. The defendants by their written statements relied on the mukarrari lease of 1846. Among the issues framed were the following (7.) Is the mukarrari lease set up by the defendants genuine? (8.) Was the mukarrari interest merged in the patni interest of the defendants and thereby extinguished ? The evidence showed that th. Tiwari family had been in possession of the Jadua patti under the mukarrari lease of 1846. As evidence that the mukarrari right had been kept distinct from the patni right they relied on hastbood papers showing that "the mukarrari Jadua patti" was enjoyed by the managing member of the family in 1883, 1885, 1892 and 1908, and upon rent receipts and kabuliats of various dates after 1856 containing references to " Jadua patti mukarrari." The Subordinate Judge found that the mukarrari lease was genuine. On issue 8, while expressing a doubt whether the principle of merger applied to land in the mofussil before the Transfer of Property Act, 1882, he recorded his finding in favour of the defendants as follows "I therefore hold that the mukarrari right did not merge in the patni right as the patni and the mukarrari rights were not acquired in the same names, and as the mukarrari was kept separate from the patni by keeping separate collection papers for the mukarrari and by granting separate rent receipts to the tenants as mukarraridars." He accordingly dismissed the suit. On appeal the High Court affirmed the decision of the Subordinate Judge on all points. The learned judges (Roe and Jwala Prasad JJ.) were of opinion, with regard to the question of merger, that they had to consider whether there was any intention to abandon the mukarrari right for the sake of the patni. They said that if such an intention had existed they could see no reason why the patni had not been taken in the names of the mukarraridars who at the time of its grant were the heads of the family. They further expressed the view upon a consideration of the authorities that until the passing of the Transfer of Property Act, 1882, the principle of merger did not apply in the mofussil, and pointed out that in any case that Act did not affect leases for agricultural purposes. 1921. June 9, 10. De Gruyther K.C. and Dube for the appellants. The mukarrari lease became merged in the patni in 1858 when Kalit acquired the interest of Tej Narayan in the patni. It is conceded that the Transfer of Property Act, 1882, does not affect the present case. According to the rule of justice, equity, and good conscience, which the decisions say means the application of English law, a merger took place Kishendatt Ram v. Muntaz Ali. (( 1879) L. R. 6 I. A. 145.) The Indian decisions do not establish that the principles of merger did not apply in the mofussil before 1882. There are merely dicta to that effect without any reason being assigned. (( 1879) L. R. 6 I. A. 145.) The Indian decisions do not establish that the principles of merger did not apply in the mofussil before 1882. There are merely dicta to that effect without any reason being assigned. In Surja Narain Mandal v. Nanda Lal Sinha (( 1906) I. L. R. 33 C. 1212.), the High Court held that whether or not the Transfer of Property Act applied in the circumstances of the case, there was a merger of the mukarrari lease then in question. In Hirendra Nath Dutt v. Hari Mohan Ghosh (( 1914) 18 Cal. W. N. 860.), in which the authorities were reviewed, it was held that there was no merger, but in that case the mukarrari lease had been registered under Act XI. of 1859. Upon the evidence in the present case there was nothing to show that there was in 1858 any intention to keep the mukarrari lease alive, and there is no reason why it should have been so intended. There was a complete merger in 1858 with an attempt at a later date to revive the mukarrari lease. The entries in the hastboods were made by the patwari, and are no evidence of the owners intention; the same remark applies to the rent receipts. Further, the words " mukarrari Jadua " in those documents are used merely as descriptive of the land and do not show that the mukarrari right still existed. [Reference was also made to Womesh Chunder Goopto v. Raj Narain Roy (( 1868) 10 Suth. W. R. 15.); Savi v. Punchanun Roy (( 1876) 25 Suth. W. R. 503.); Prosunno Nath Roy v. Jagat Chunder (( 1878) 3 Cal. L. R. 159.); Jibanti Nath v. Gokool Chunder. (( 1909) 13 Cal. W. N. 913.)] Kenworthy Brown for the respondents. The authorities already referred to show a series of pronouncements by eminent judges in India to the effect that the principle of merger did not apply in the mofussil before the Transfer of Property Act, 1882. The decision of the Board in Kishendatt Ram v. Muntaz Ali (( 1877) L. R. 6 I. A. 145.) proceeded upon the respective rights of mortgagor and mortgagee with reference to accession to the property mortgaged; nothing was decided contrary to the view expressed by Peacock C.J. in 1868. The decision of the Board in Kishendatt Ram v. Muntaz Ali (( 1877) L. R. 6 I. A. 145.) proceeded upon the respective rights of mortgagor and mortgagee with reference to accession to the property mortgaged; nothing was decided contrary to the view expressed by Peacock C.J. in 1868. Similarly, Surja Narain Mandal v. Nanda Lal Sinha (( 1906) I. L. R. 33 C. 1212.) was not a case of merger, the question there being whether a mortgagor was entitled to redeem an interest got in by the mortgagee. If the principle of merger can be applied at all, its application depends, according to a well-established principle of equity, upon intention Whiteley v. Delaney ([ 1914] A. C. 132, 151.), in which the House of Lords approved the dissenting. judgment of Fletcher Moulton L.J. ([ 1912] 1 Ch. 735.) in the Court of Appeal, and of Parker J. ([ 1911] 2 Ch. 448.) at the trial. In the present case the evidence showed that there was an intention to keep the mukarrari interest distinct, as was held by both Courts in India. When the two interests were held by the joint family they stood in different names, a merger being thus prevented " by appropriate conveyancing." ([ 1914] A. C. 132, 151.) The intention was clearly shown by the hastboods and rent receipts. Further, the dissimilarity of te mukarrari lease, which was for agricultural purposes, and the patni lease makes it improbable that a merger was contemplated. It is not shown that there was any member of the joint family alive to give relevant verbal evidence. De Gruyther K.C. in reply referred to Mohesh Lal v. Bawan Das. (( 1883) L. R. 10 I. A. 62.) July 1. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal against a decree of the High Court of Judicature at Patna dated June 27, 1916, affirming a decree of the Subordinate Judge of Bhagalpur dated August 20, 1912. The purpose of the suit was for a declaration of the plaintiffs title to a patni taluk called Israin Kalan, in the district of Bhagalpur, and for khas possession of certain lands which are in the hands of the defendants. The defendants resist this claim on the ground that they are the holders of a mukarrari lease of a considerable portion of the patni called Jadua patti. The defendants resist this claim on the ground that they are the holders of a mukarrari lease of a considerable portion of the patni called Jadua patti. There were many issues in the case, each party attacking the title of the other. Inter alia, a strongly contested issue was whether the mukarrari lease set up by the defendants was genuine. After a very full trial there is a concurrent finding by both Courts that it was. The case was ably argued before the Board, and the point of contention may be said to have been that which was contained in the eighth issue tried before the Subordinate Judge. That issue was in these terms " Was the said mukarrari interest merged in the patni interest of the defendants first party and thereby extinguished ? " If this merger took place, the defence fails. If it did not take place, the defence succeeds. Reduced to the simplest elements, and confined to those which bear upon the issues so determined, the facts may be stated thus One Mathura Nath Ghosh was proprietor of the mauza holding under lakhiraj title prior to 1846. On June 14 of that year, he granted a mukarrari lease respecting Jadua patti in favour of Dhir Nath Tiwari and Loke Nath Tiwari, the predecessors of the Tiwari defendants, at a rental of Rs. 66.11.3. There can be no doubt that this was an agricultural lease binding the lessees " to cultivate the said land to your satisfaction." Under this agricultural lease the lessees would, according to practice, either farm the lands themselves, or let them to other cultivators, drawing rents therefor. During their possession the value of the lands thus let in mukarrari appears to have greatly risen. Ten years later—namely, on August 31, 1856—the owner of the mauza, Mathura Nath Ghosh, already mentioned, granted a patni lease of the whole mauza in favour of two persons, Tej Narayan Tiwari and Kalit Nath Tiwari. More than two years afterwards, Tej Narayan Tiwari sold his half-share of the patni to Kalit. The exact date of this transaction was December 19, 1858. More than two years afterwards, Tej Narayan Tiwari sold his half-share of the patni to Kalit. The exact date of this transaction was December 19, 1858. The question whether these transactions were fundamentally joint family transactions and should be so treated for the purpose of the application of the doctrine of merger, is a question which will be afterwards referred to ; but, in the meantime, it may be noted that ex facie of these two transactions, the patni lease and the mukarrari lease, they are granted by the same grantor to grantees who are different persons. But for the introduction of this question of the joint family, the point of merger could not, in fact, arise, as there is no identity of person between the mukarraridars and the patnidars. This applies clearly to August, 1856, when the patni lease was granted, but it also further applies to December, 1858, when Tej Tiwari sold his half-share to Kalit Tiwari, because Kalit, although thereafter holding the patni en bloc, was not himself a mukarraridar of Jadua patti. Accepting for the moment, however, as relevant, the fact that Kalit Tirwari, the patnidar, was of the same joint family as Dhir Tiwari and Loke Tiwari, the mukarraridars under the 1846 deed, and accepting also as relevant, for the moment, that when a joint family interest can be postulated, the doctrine of merger should be applied to it, their Lordships note that much authority was cited to the Board as it had been to the Courts below, on the proposition broadly maintained that, prior to the Transfer of Property Act, there was no law of merger in the mofussil. The various points of 1 this argument, including the question whether the case law, applicable to the situation of mortgagor and mortgagee, could be applied by accurate analogy to the case of mukarraridar and patnidar—these various points need not be entered upon at length in the present case, in view of the clear opinion which the Board has formed and which will be presently stated as to the true range of the doctrine of merger itself. It may, however, be mentioned incidentally that towards the close of the series of decisions referred to, there occurs the case of Hirendra Nath Dutt v. Hari Mohan Ghosh (18 Cal. It may, however, be mentioned incidentally that towards the close of the series of decisions referred to, there occurs the case of Hirendra Nath Dutt v. Hari Mohan Ghosh (18 Cal. W. N. 860.), and in the judgment of the Court, consisting of Fletcher and Chatterjee JJ., of whom the latter delivered the judgment, there is a valuable review of the series of decisions upon this branch of Indian law. Before leaving the list of Indian cases referred to, it may, however, also be observed that no light is thrown upon this case by the later half of them, which were ruled by the provisions of the Transfer of Property Act. This case is not so ruled, but depends upon general law. But, if the doctrine of merger is appealed to, that doctrine must be taken as it stands. Merger is not a thing which occurs ipso jure upon the acquisition of what, for the sake of a just generalisation, may be called the superior with the inferior right. There may be many reasons—conveyancing reasons, reasons arising out of the object of the acquisition of the one right being merely for a temporary purpose, family reasons and others—in the course of which the expediency of avoiding the coalescence of interest and preserving the separation of title may be apparent. In short, the question to be settled in the application of the doctrine is, was such a coalescence of right meant to be accomplished as to extinguish that separation of title which the records contain ? This is in accord with settled law, of which two recent instances may be given—namely, Capital and Counties Bank v. Rhodes ([ 1903] 1 Ch. D. 631.), and especially the judgment of Farwell J. in Ingle v. Jenkins. ([ 1900] 2 Ch. D. 368.) The doctrine of merger being thus applied to the present case, it is found, on an examination of the circumstances, that they show with great clearness that instead of the mukarrari lease having been extinguished by merger, it was, on the contrary, kept up as upon the one hand the source of right to the cultivators proceeding from the mukarraridars, and upon the other hand, the separate grant of subsisting right to the mukarraridars by their lease in respect of which the payment into the patni exchequer of the specific Rs.66, specified in the mukarrari lease, continued to be made. The argument of Mr. Kenworthy Brown upon the documents made this clear. It is not, however, necessary to enter upon the details thereof, for both of the Courts in India, after full investigation, are satisfied in that particular. Had there been a true merger in fact, and in intention, the whole of such transactions would, in all probability, have taken a different shape, and in particular no more would have been heard of the mukarrari rent. This raises the last question in the case, and it is one of some importance. It was strongly argued by the appellants counsel that it was sufficient for his purpose to show that mukarraridars and patnidar were of the same joint family, and that the difference of name of the one set of persons from the other person was of no account. Their Lordships are not of this opinion. The difference of name, it is not going too far to say, may be at least an element, and an important element, in the question whether merger was ever truly intended. There may under the law of England be complete fundamental identity of right between the holder under one title, and the holder under another, but a convenient method of indicating intention on the subject is to create, for the purpose of keeping up the separation of title, a trust by which merger in the legal sense is clearly avoided. In short, although the same person is truly and comprehensively the owner of all the rights which might have coalesced, the substance of separation is preserved by the form of title not having been allowed to merge into the one name. To apply this doctrine to the Indian joint family, when a joint family interest might be said to cover rights acquired to property by several individuals belonging to the family, but when the rights which might otherwise be merged are conferred by titles taken in the names of different members of the family, and thereby the means of articulate differentiation is continued as effectively as by the artifice employed in England of the setting up of a trust ad hoc, then it appears to their Lordships that these circumstances are elements for consideration. All the length that this judgment goes is that the fact that the two sets of title do not meet in identity of name, but are separately attached to separate members of, the family, is a matter to be considered on the question whether merger was ever intended. As already stated, however, in the present case, in addition to the title standing in the names of different members of the family, the transaction under which the mukarrari lease and the rights consequent thereupon were kept alive, is quite plain upon the documents and accounts. Their Lordships are of opinion that a sound view is taken of this case by both the Courts below, and that the appeal fails. They will humbly advise His Majesty accordingly, and that the appellants should pay the costs.