CHERAG ALI SARKAR Vs. NAWAB KHAJE HABIBULLA

JUDGEMENT

(1.) In these four appeals by the defendants it is unfortunate that the respondents did not appear as the cases are of. some intricacy and although the learned advocate for the appellants has done his best to present the cases with fulness and fairness the want of an opponent is a sensible disadvantage. We were at pains to investigate into the facts closely and with great care.

(2.) Out of these four appeals, Appeal No. 1429 must be dismissed as the appeal arises out of a suit for rent valued at less than Rs. 100 and none of the questions admittedly arise which permit an appeal having regard to the provisions of Section 153, Bengal Tenancy Act. This appeal is therefore dismissed but without costs.

(3.) I will now proceed to deal with Appeals Nos. 1426, 1427 and 1428. These three appeals arise out of as many suits for rent brought by Nabab Khaje Habibulla and others against the different defendants in these three cases. The plaintiff's title in these three suits based on a sale held under circumstances to which I will presently refer. Under the plaintiffs there was a patni tenure which was being held by one Abinash and Kironbala each of whom being interested in the tenure in equal shares. Abinash died sometime before the institution of these suits after having executed a will by which it is said he bequeathed his interest in an eight annas share in the tenure now in question to his wife Kumudini absolutely. On 6 July 1921 the Nawab sued Kironbala and Kumudini for rent in respect of this patni tenure. During the pendency of the suit Kumudini executed a will by which she appointed five persons as executors. There are Lalit, Biraj, Bhuban, Jitendra and Ananga. On 9 September 1921 Kumudini died while the suit was still pending. It is to be noticed that an application for substitution of the heirs of Kumudini was made with the result that Abani and Ananga were placed on the record as legal representatives of Kumudini and a decree was obtained against them. It appears from an order in the order sheet which has been made an exhibit in the case that on 12 January 1922, Lalit, Biraj, Bhuban, and Jitendra wanted to intervene in the suit and prayed that they be added as defendants. This however was not done. On 23 March 1922, the suit was decreed against Ananga and Abani. The executors appointed under the will except Auanga applied for a probate of the will and it is said that Ananga resisted the granting of probate. On 1 June 1923 a compromise was effected in the probate proceedings by which four of the five executors renounced their position as executors and probate was granted to the remaining executor, Ananga. In the meantime the decree which had been obtained against Ananga and his father Abani was put into execution and on 5 April 1923 the patni tenure was sold in execution of the rent decree and was purchased by the Nawab's estate for Rs. 2,75,000. Ananga and Abani both applied under Order 21, Rule 90, Civil P.C., to set aside the sale. They were however unsuccessful and the sale was confirmed. The present suits were consequently brought by the Dacca Nawab's estate against the defendants who ware tenants under the patni for rent for the period from 1329 to 1332 B. S. In each of these suits the common defence of the defendants is that the interest of Kumudini did not pass by the patni sale of April 1923 as the estate of Kumudini was not represented in the suit of 1921. The defendants contend that the son and the grandson of Kumudini were made defendants in that suit in their capacity as heirs of Kumudini but Kumudini's estate was represented by the executors and that by the will there was an absolute dedication of the property in favour of the idol Kumudeswar Shiva and that the deity was not represented in the rent suit and that consequently the sale in execution of the decree of Kumudini's estate obtained against persons who did not represent the estate did not pass her share in the patni tenure and that the sale was void and without jurisdiction. This contention was given effect to by the trial Court which gave a decree to the plaintiffs for share of rents, cesses and damages in each of three cases for the period from 1330 to Pous kist of 1332 at the rates claimed by the plaintiffs with proportionate costs from the defendants of each case and the learned Munsiff disallowed the plaintiffs claim for the rent of Chaitra kist 1329 in each case.