HIRANMOYEE DEBI Vs. JAHANGIR MEERZA

JUDGEMENT

(1.) This is an appeal by Defendants Nos. 1 to 4 and is directed against a judgment and decree passed by A. Islam, Subordinate Judge of Murshidabad, decreeing the Plaintiffs' suit for recovery of rent.

(2.) The Plaintiffs case in the plaint is that the predecessor-in-interest of the Plaintiffs and of Rai Bahadur Surendra Nath Singha was the zemindar of the lands covered by the tenure in suit, which is a patni. The Plaintiffs further allegation is that the Defendants predecessor-in-interest took a lease of the disputed tenure at a rent of Rs. 9,176-10-6, that the Plaintiffs had separate collection in respect of their 10 as. 9 p. share, the remaining share in the zamindari being vested in Rai Bahadur Surendra Nath Singha. The Plaintiffs' further allegation is that, on account of default in payment of patni rent, proceedings under Regulation VIII of 1819 were initiated by the zemindars and the patni was brought to sale and purchased khash by the zemindars, and that, the zemindars took possession of the said patni. The patni-sale did not liquidate the arrears for 1345 B.S. The Plaintiffs, therefore, claim their share of the unpaid patni rent for the year 1344 B.S. and the balance of the patni rent for 1345 B.S., the claim of the Plaintiffs was laid at Rs. 5,375-9-3. The suit was filed on February 19, 1946. The bar of limitation was sought to be saved by reason of the pendency of certain proceedings under the Bengal Agricultural Debtors Act. The Defendants filed written statements. We are concerned in this appeal with the plea raised by Defendants Nos. 1 to 4 in their written statements. In substance the defence is that the patni in suit descended to Anukul Chandra Mukherji and, by a will executed by him, Anukul's share in the patni and in certain other lands was devised to a deity Sri Sri Narain Jiu Deb Thakur, one of the sons of Anukul being appointed a shebait of the said deity. The defence further is that. it was the deity, who was the tenant of the disputed patni in respect of Anukul's share, and that Defendants Nos. 1 to 4 are not personally liable. Certain other defences, including a plea of limitation, were taken by Defendants Nos. 1 to 4. In view of the scope of this appeal, it is not necessary to set out these defences. The Subordinate Judge, by his judgment, dated June 30, 1947, overruled the defence and decreed the Plaintiffs' suit against. the Defendants. Only Defendants Nos. 1 to 4 have preferred this appeal. Mr. Roy Choudhury, appearing on behalf of Defendants Nos. 1 to 4, has not pressed the other pleas which are found against these Defendants in the court below, but has limited his appeal to the question whether Defendants Nos. 1 to 4 are personally liable for payment of the rent claimed by the Plaintiffs in their share. Mr. Apurbadhan Mukherji, appearing for the Plaintiffs landlords, has disputed the correctness of the above contention and has sought to support the decision of the Subordinate Judge on an additional ground to which reference will be made hereafter.

(3.) In order to deal with the contentions which have been agitated before us, it is necessary to state the following facts which are admitted. On August 29, 1868, the predecessor-in-interest of the zemindars granted a patni lease to Chandra Nath Mukherji. In course of time, Anukul Chandra Mukherji inherited a share in the patni. On September 8, 1915, Anukul executed a will bequeathing his interest in the patni and in certain other properties to a deity Sri Sri Narain Jiu Deb Thakur. The shebait of the deity appointed by the will was Mihir Kumar Mukherji, one of the sons of Chandra Nath Mukherji. The will was probated on August 24, 1946. In the meantime, Anukul had died. It is a matter for contention between the parties as to who went into possession of Anukul's share in the patni on the latter's death. It appears that on the basis of an agreement dated August 10, 1923, marked Ex. E, all the sons of Anukul, i.e. Defendants Nos. 1 to 4, became the ghebaits of the said deity. The record shows that the patni was brought to sale for the patni Tent of the year 1345 B.S. and was purchased khash by the zemindars who took possession of the patni. The Plaintiffs, allegation is that the patni ceased to exist thereafter. I have already referred to the claim in this suit for rent, which included the unpaid arrears of 1344 B.S. and the unpaid balance of the Tent for the year 1345 B.S., in the Plaintiffs' share. The Subordinate Judge was of the opinion that, as the deity did not take any steps in accordance with the provisions of Section 15 of the Bengal Tenancy Act or to get its name recorded in the landlord books, the liability for rent devolved on Defendants Nos. 1 to 4 along with the other Defendants.