SHAIK SAHED Vs. KRISHNA MOHAN BASAK

JUDGEMENT

(1.) The plaintiff, a co-sharer landlord, brought a suit for arrears of rent against defendants Nos. 1, 2 and 3, the heirs of his original tenant. Defendant No. 1 did not appear, but defendants Nos. 2 and 3 appeared and filed a written statement denying the rate of rent alleged by the plaintiff and pleading want of parties and dispossession of a part of the holding. The Court of first instance dismissed the suit for want of parties and dispossession of a part of the holding and expressed an opinion that the plaintiff had failed to prove the rate alleged by him. On appeal by the plaintiff the learned Subordinate Judge has given a money-decree against defendant No. 1 only for the entire claim. The defendent No. 1. appeals and it is contended on his behalf that the learned Subordinate Judge is wrong. The learned Subordinate Judge has held that defendant No. 1 used to pay the rent as the representative of the old tenant and is, therefore, liable to pay the whole rent, although there is no evidence that defendant No. 2 or No. 3 ever authorised him to pay rent. Now the defendant No. 1 was the eldest son of his father, defendant No. 2 being a minor and defendant No. 3 a female, and he might be taken as representing the family in their relations with the landlord and if the landlord had brought a suit against him alone as his recorded tenant, there would perhaps have been no difficulty in his obtaining a decree for the rent claimed against him alone but the landlord has chosen to sue him as one of three tenants who stand in the place of one deceased tenant. Having brought his suit against all the heirs, he has recosrnised them all as his tenants and they must all be taken as one body of registered tenants holding one single holding. There is no case of a joint contract which might be enforced against any of the joint contractors, because the defendants have not made any joint contract. Section 43 of the Contract Act speaks of two or more persons making a joint promise and can have no application where parties become jointly interested by operation of law in a contract made by a single person. Reliance has been placed on the case of Sir Rameswar Singh v. Jaideb Jha 6 Ind. Cas. 387 : 12 C.L.J. 591. That was not a case in which the contract of one person was inherited by more than one; at least the report does not show that it was such a case. The observation there that it was competent to the plaintiff to bring his suit against any numbei of several joint tenants" must be read as applying to the facts of that case and for all that we know, that case may have been one in which the contract of tenancy was entered into jointly by the several tenants. The same remarks may also be made as to the case of JogendraNath Roy v. Nagendra Narain Nandi 11 C.W.N. 1026. The later case of Kashi Kinkar Sen v. Satyendra Nath Bhadro 7 Ind. Cas. 840 : 15 C.W.N. 191 : 12 C.L.J. 642 is more in point, as the case was one of an inherited contract and supports the contention of the appellant. We think it was not open to the learned Judge to make for the plaintiff a case that he did not make for himself. The decree of the lower Appellate Court must, therefore, be set aside and the case sent back for a decision in accordance with law as a case against all the defendants. Costs to abide the result.

(2.) This judgment will govern Second Appeal No. 143 of 1914.

(3.) The Rules will stand discharged.