ABHOY CHARAN DUTTA AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES SURENDRA NATH DUTTA Vs. MONORANJAN RAI CHOUDHURY AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES LUKHA KANTA ROY

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of possession of land on declaration of title. The subject-matter of the litigation is a tenure which was purchased by the plaintiffs in execution of a mortgage decree. The identical tenure was purchases in execution of a rent- decree by the defendants who took steps in accordance with Section 167, Bengal Tenancy Act, to annual the interest of the plaintiffs as an in-cumbrance. The subtantial questions in controvery between the parties is, whether the rent-decree operated as a decree for rent under the Bengal Tenancy Act or only as a decree for money. It is not disputed that, if it operated as a rent-decree, the plaintiffs cannot possibly succeed in this suit.

(2.) The Courts below have found the circumstances under which the rent-decree was passed. The tenure belonged in equal halves to one Abdul and to three brothers Meherulla, Arjanulla and Sonaulla. On the death of Meherulla, his share devolved on his two widows, his mother and the two surviving brothers. Similarly, on the death of Arjanullab, his share devolved on his widow, his mother and his surviving brother. Finally, on the death of Sonaullab, his share devolved on his mother, his widow and his sons. The widows of Meherullab re-married after the death of their husband and went to live in the houses of their second husbands. The tenure remained in the actual occupation of the other persons just mentioned, and their names were entered in the books of the landlord as those of the tenants in possession. Default was thereafter made in the payment of rent, with the result that the landlord sued the recorded tenants and obtained a decree against them. It is now argued that, as the two widows of Meherulla were not joined as parties to the suit, the decree could not be treated as a decree for rent, in as much as the entire tenure was not represented in that litigation. In support of this contention, reliance is placed upon the case of Girish Chandra Guko v. Khagendra Nath 9 Ind. Cas. 1001 : 13 C.L.J. 613 : 16 C.W.N. 64. But that case is clearly distinguishable. There, upon the death of the tenant, his representatives had taken steps to pay the prescribed fee under the provisions of the Bengal Tenancy Act. Notwithstanding this, the landlord sued some of the representatives of the original tenant: the excuse be offered was that he did not receive the fee and that the notice issued by the Collector did not reach him. This Court held that the representatives of the tenant had performed their duty and had complied with the requirements of the law, when they deposited the fees with the Collector. Upon payment of such fee, their title as tenants became perfected, with the result that the landlord, if he desired to pass the entire tenure at a sale in execution of a decree for arrears of rent, was bound at his peril to join all the representatives of the original tenant. In the case before us, the representatives of the tenant did not follow the provisions of, the law and did not deposit the fee prescribed by the Bengal Tenancy Act. Two of them abandoned the tenure and went to live with their second husbands. The other tenants remained in possession and had their names recorded in the books of the landlord as tenants in actual occupation. In these circumstances, we are of opinion that the tenure was fully represented in the suit, and the decree which was obtained by the landlord against the recorded tenants operated as a decree for rent. This conclusion is supported by the decisions in Nitayi Behari Saha v. Hari Govinda Saha 26 C. 677 : 13 Ind. Dec. (N.S.) 1033, Jagat Tara Dasya v. Daulati Beua 2 Ind. Cas. 695 : 37 C. 75 : 13 C.W.N. 1110, Gagan Sheish v. Abajan Khatun 10 Ind. Cas. 106 : 14 C.L.J. 180. It follows that the view taken by the District Judge is correct and his decree must be affirmed.

(3.) The result is that this appeal is dismissed without costs, as the costs of the infant respondents have already been paid. Ernest Fletcher, J.