HOSENJAN CHOUDHURI Vs. MIRZA MAHAFEDUDDIN

JUDGEMENT

(1.) This is an appeal against a decree dismissing a rent-suit on the ground that it was bad for defect of parties. The plaintiff sued on a kabuliyat which was executed by two defendants. Various defences were raised that the kabuliyat had been taken by coercion and that the provisions of Section 29 of the Bengal Tenancy Act were contravened. Both these points were decided in favour of the plaintiff.

(2.) It appears that there were several holdings which belonged to the defendants and also to the defendants mother and sisters. These holdings, it is found, were combined into one holding, and then the defendants executsd a kabuliyat agreeing to pay a rent enhanced by annas two in the rupee in excess of the total rent of all the original holdings, It is also found that the landlord wished to join the defendants mother and sisters in the kabuliyat, but he did not do so in order to avoid expense and trouble in getting the kabuliyat registered by them. In our opinion the learned Subordinate Judge was wrong, on the simple ground that the plaintiff sued on a contract and made all the parties to the contract parties to the suit.

(3.) The learned Vakil for the respondents was unable to show us any case in which a suit for rent based on a kabuliyat had boon dismissed for defect of parties when all the executants of the kabuliyat were parties to the rent-suit. Had we not held that the appeal was entitled to succeed on this simple ground, we should have been compelled to send the case back for re consideration of the question, whether the defendants in executing this kabuliyat represented all the co-sharers in the holding. We are unable to understand the remark of the learned Subordinate Judge that there is no evidence in the case showing that the defendants represented their mother and sisters in respect of the jote. On the admitted facts there is enough to support the strong presumption that these defendants did represent their co- sharers. We think that as this suit was brought on a kabuliyat, it was not necessary to consider the question as to the liabilities of some co-sharers for rent of the entire holding in a suit in which all the co-sharers were not joined.