AKSHOY KUMAR MITRA Vs. GOPAL KAMINI DEBI

JUDGEMENT

(1.) The plaintiffs in this case are co-sharer landlords. They have each an 8 annas share of the landlord's interest in the holding. The defendant No. 3 is the tenant of the whole holding, having purchased the interests of the defendants 1 and 2, the old tenants. The plaintiffs have hitherto been collecting the rent of their shares separately. Now that the holding is held by one tenant, they jointly sue him for the whole rent. The defence is that the plaintiffs having collected their shares of the rent separately for many years cannot now sue jointly. The lower Courts have given effect to this plea of the defendant and have dismissed the suit.

(2.) The plaintiffs appeal. On their behalf it has been contended that they are entitled to sue jointly, if they please, and that there is nothing from which can be inferred an implied contract (for there is admittedly no express contract) never to collect the rent otherwise than separately. The appellant's pleader relies on (a) the dictum of Sir 11. Garth in Gani Mahomed V/s. Moran (1878) I.L.R. 4 Calc. 96, that an arrangement by which each co-sharer collects his share of the rent separately is quite consistent with the continuance of the original lease of the whole tenure, which was approved of in Gopal Chunder Dass V/s. Umesh Narain Chowdhury (1890) I.L.R. 17 Calc. 695 : (1904) 9 C.W.N. 34 (b) on a dictum of Mr. Justice Ghose in Pramoda Nath Roy y. Ramoni Kant Roy , in which that learned Judge has said: "No doubt the original lease has not been put an end to by the arrangement that has been come to between the parties as to separate payment of rent, and, if the co-sharers agree, they might jointly maintain a suit for recovery of the whole root; (c) on the judgment of Mr. Justice Pratt in Shyatna Charan Bhuttacharjee V/s. Obhoy Kumar Mitter (1905) 10 C.W.N. 787 in which, in exactly similar circumstances, it was held that a co-sharer landlord could sue jointly for the whole of the rent, and (d) the case of Girish Chunder Mukhopadhyaya V/s. Chhatradhar Ghose (1905) 3 C.L.J. 379 in which it has been ruled (hat co-sharer landlords, who have collected their shares of the rent separately, are not bound to continue to do so, unless they have given their consent in writing under Section 88 of the Bengal Tenancy Act.

(3.) On the other hand, the respondent's pleader relies on a passage in Mr. Justice Brett's judgment in Pramada Nath Roy V/s. Ramoni Kant Roy (1904) 9 C.W.N. 34 in which it has been said: "The agreement was one made between the body of landlords on one side and the tenants on the other, and one out of several persons contracting on the one side cannot alone cancel or avoid the agreement. The agreement can only be rescinded by the contracting parties, that is to say, the whole body of the landlords, who jointly form one of the parties on one side and the tenants on the ether, and one of the landlords without the consent of the rest is not entitled to rescind it." The respondent's pleader further calls attention to the fact noticed in the first Court's judgment that there has been an apportionment of rent in the plaintiff's books, but he contends that this was not such an apportionment as amounts to a subdivision of the tenancy.