MAHIDHAR ROY Vs. BANSIDHAR ROY

JUDGEMENT

(1.) In this appeal by defendants 3, 4 and 5 the only question for determination is whether the learned Subordinate Judge was right in decreeing the suit of the plaintiffs for contribution in the following circumstances. The plaintiffs and defendant 7 are eight annas cosharers in a patni of village Banrah of which the Raja of Panchkote is the superior landlord. In the remaining eight annas one Gajadhar, the ancestor of defendants 1 to 5, who died before 1341 B. S., had 2 annas and 8 gandas share. Defendant 8 and others have 5, annas and 4 gandas share, and the remaining 8 gandas belongs to defendant 6. On Gajadhar's death his share was inherited by defendants 1 and 2 and one Kalipado. Kalipado is the father of defendants 3, 4 and 5-the appellants before us. Upon the death of Gaja- dhar as a result of partition between defendants 1 and 2 and Kalipado the entire 2 annas and 8 gandas of the patni fell to the share of Kalipado., On 1 pous 1341, B.S., Kalipado sold his entire interest to one Abhayabala Debi by a registered kebala, and the transferee since that date is in possession. The patni rent for the years 1345 to 1347 B. S., having fallen into arrears the zemindar took proceedings under Regulation 8 of 1819 to bring the entire patni to sale. In order to avoid the sale the plaintiffs deposited on various dates from 11 July 1938 to 14 May 1941, the amount of arrears of rent and cess to the extent of two-third, and the remaining one-third was depo-sited by defendant 7 with the result that the patni taluk was saved from sale. Out of the amount deposited, the plaintiffs claimed Rs. 420 which is recoverable from defendants 1 to 6 as their quota. Defendant 7 refused to join as a plaintiff in this suit and therefore he has been made a pro forma defendant.

(2.) Defendants 1 and 2 and defendants 3 to 5 filed separate defence to the same effect that they have no interest in the patni taluk in question, the former from the date of the partition with Kalipado and the latter since 1 Pous 1341, B. S., the date of transfer by Kalipado to Abhayabala Debi, and, therefore, the suit was not maintainable against them. Defendant 6 did not appear in the action. The learned Munsif came to the conclusion that the plaintiffs are only entitled to sue the other cosharers in the patni taluk, excluding defendants 1 to 5 whose interest in the patni ceased before the arrears of rent for the period 13,45 to 1347 B. S. accrued due. Accordingly he decreed the suit ex parte for Rs. 60 against defendant 6, with corresponding costs and future interest, but dismissed the suit against defendants l to 5. No appeal was taken by defendant 6, nor has he appealed to this Court. The decree of the learned Munsif will, therefore, be maintained against defendant 6. In appeal, the learned Subordinate Judge came to the conclusion that defendants 1 to 5, notwithstanding their not being in possession of their share of the patni taluk are liable to contribute to the plaintiff to the extent of Rs. 360 and passed a decree to that effect. Hence the appeal by defen-dants 3 to 5 only. As defendants 1 and 2 have not appealed, the decree of the learned Subordinate Judge remains unaffected so far as they are concerned. Mr. R. S. Chatterji in an elaborate and interesting argument challenged the correctness of the view taken by the learned Subordinate Judge as a matter of law and drew oar attention to a number of authorities.

(3.) It is well-known that the patni talukdars obtained perpetual settlement of estates paying revenue to Government from the zamin-dar by entering into engagements by which their liability to pay the stipulated rent to the zamindar is governed. In order to declare the validity of these tenures and to define the relative rights of the zamindars and the patni talukdars and also to establish the principles for sale of these taluks in satisfaction of the zamindar's demand of rent,, the well-known Regulation 8 of 1819, was promulgated on 3 September 1819. In the preamble it is stated that by the terms of the engagements interchanged between the zamindar and the patni talukdar, it is provided that in case of an arrear occurring the tenure may be brought to sale by the zamindar and to make good the balance of rent at the time due, the remaining property of the defaulter shall be further answerable for the demand. This conclusively establishes the personal liability of those persons who entered into engagements with the zamindar (see also Section 5). By Section 3, the patni taluks are declared to be valid tenures in perpetuity according to the terms of the engagements and that they are heritable and capable of being transferred by sale, gift or otherwise at the discretion of the holder as well as answerable for his personal debts. By Section 5 the zamindar is debarred from refusing to give effect to the transfers by the holder and to discharge the party transferring his interest from personal responsibility and accept the engagements of the transferee provided he is granted a fee upon the alienation and is given a substantial security from the transferee or the purchaser to the extent indicated. By Section 6 it is made clear that the zamindar can refuse to register. any transfer until the fee above stipulated is paid and until substantial security to the amount specified is tendered and accepted. The arbitrary refusal by the zamindar to accept the fee and the security furnished is guarded against in the proviso to Section 6 which enables the party tendering the security to appeal to the civil Court. These provisions in the Regulation being so clear and specific enable us to solve the problems in this case quite easily. The patni taluq of village Banrah was admittedly in arrears for the rents due to the Raja for 1345 to 1347 B. S. The plaintiffs and defendant 7 are admittedly cosharers to the extent of eight annas and each of them deposited the amount stated in the plaint to save the patni from sale. The other cosharers are thus liable to contribute to the extent of their interest which has been saved from sale. Gajadhar had 2 annas and 8 gandas share. On his death it was inherited by defendants 1 and 2 and Kalipado. These defendants, therefore, were liable for the patni rent, and on the death of Kalipado the patni share was inherit-ed by defendants 3 to 5 so that defendants l to 5 are liable to pay the patni rent not on the ground of their being recognised by the landlord, as there is no case of transfer here, but on the ground of heritability. Mr. Chatterji argues that as Kalipado had transferred the share of Gajadhar to Abhayabala Debi in 1341 B. s., how can the sons of Kalipado be liable to pay rent when they were not in possession? The short answer to this argument is that the transfer by Kalipado to Abhayabala Debi although binding between the transferor and the transferee is not any transfer in the eye of law so far as the zamin-dar is concerned. Kalipado and after his death his sons remained personally liable to pay the patni rent. Mr. Chatterji at one stage of his argument suggested that there was no personal liability of Gajadhar or his sons to pay patni rent. But the quotations from the preamble and from Section 5 given above negative this contention.