SAMSANNESSA BIBI Vs. RAHIM PRAMANIK

JUDGEMENT

(1.) The facts giving rise to this appeal are these : There was a tenure standing in the name of Chiniraddin under the Saha Babus. The family acquired the tenure in the lifetime of the father but Chiniraddin was the only recorded tenant in the books of the landlord. After the death of the father, which took place in 1314 B.E., the widow and the four sons succeeded to the tenure and realized rents from the tenants in respect of the separate shares. The landlords sued Chiniraddin for arrears of rent due for the years 1912-15 and, in execution of the decree they obtained, the tenure was purchased by the plaintiffs, who are the two widows of Basiraddin, a brother of Chiniraddin. The widows took delivery at possession through Court in 1917 but obviously all the heirs still remained in possession, for, the settlement operations began in 1918 and in the finally published record-of-rights all the heirs are recorded to be in possession. The Saha Babus brought a damage suit in 1918, and in that suit they made all the heirs parties. It appears that there was a stipulation in the lease that the tenure-holder would pay rent for the Saha Babus to their superior landlords but the tenure-holders did not and this damage suit was brought in respect of the same years for which they had previously brought a rent suit. The plaintiff brought this suit and asked for enhancement of rent on certain grounds. The rate of rent was not disputed but the tenant raised the question that the plaintiffs had, by their purchase, acquired only the fractional interest of Chiniraddin and were not entitled under Section 188, Bengal Tenancy Act, to sue for enhancement. It is in this way the question has arisen which required our decision, viz., whether the plaintiffs have got 16-annas interest in the tenure or whether they have only-acquired the 41/4 annas interest of Chiniraddin. The trial Court held that as Chiniraddin was the only recorded tenant and as after the father Chand Miah's death the different co-sharers did not register their names in the landlords sheris(sic)a, Chiniraddin represented all the co-sharers to the landlords and the co-sharers are bound by the results of the rent suit and he gave the plaintiffs a decree. The learned Munsif quoted cases of Jeo Lal Singh V/s. Gunga Pershad [1884] 10 Cal. 996, Nitayi Behari V/s. Govinda Saha [1899] 26 Cal. 677 and Rajani Kant V/s. Uzir Bibi [1903] 7 C.W.N. 170. There was an appeal by the tenant-defendant and the lower appellate Court came to the conclusion that in the circumstances of the case Chiniraddin did not represent the tenure at all and the-plaintiffs as co-sharer tenure-holders are-not competent to sue for enhancement of the rent. He gave the plaintiffs a decree for their share of rent (as derived from Chiniraddin). The plaintiffs have- come up here from this decision and the argument of Dr. Pal, appearing for them is in effect that the lower appellate Court has made an error in deciding the point at issue.

(2.) The question, however, whether one of several tenants can be regarded as a representative of the rest must depend upon the circumstances of each case; such a question is largely, if not essentially a question of fact : Chamatkarini Dasi V/s. Friguna Nath Sardar [1913] 17 C.W.N. 833. It seems to ma, therefore, that we are bound by the finding of fact by the lower appellate Court in this case. It might be possible to disturb this decision if it could be shown that; it is based on an erroneous conception of the law or the evidence.

(3.) But there is only one mistake of fact which does not make any real difference in the case. The learned Subordinate Judge was of opinion that the landlords brought the damage suit first, and then, the rent suit, and he was of opinion that the landlords were not entitled subsequently to sue Chiniraddin alone. As a matter of fact, the rent suit was brought first but their conduct in subsequently joining all the heirs, gives rise to the inference that they knew all along who were the actual tenure-holders. It cannot; be said that they did not know for the tenure comes from the days of Chand Miah and the heirs are in possession, and any slight enquiry would have revealed the facts. A landlord, it may be conceded, may look for his pent from only the registered tenant but when he proceeds to sell the tenancy it has to be considered what really passed by the sale. The learned vakil has referred to the cases cited by the Munsif. In the particular circumstances of these cases it was held that there was representation. It was not laid down anywhere, as far as I know, that the recorded tenant represents all the co-sharers. It was said in Ashok Bhuiyan V/s. Karim Bepari [1905] 9 C.W.N. 846 that there is no law rendering it obligatory on tenants to gat their names recorded in the landlords sherista for the purpose of perfecting their titles. Ashok Bhuiyan's case [1905] 9 C.W.N. 843 was considered in the case of Jagattara Dassya V/s. Daulati Bewa [1910] 37 Cal. 75 and it was pointed out therein that the distinction between tenures and raiyati holdings under the Bengal Tenancy Act has been largely obliterated. With due respect, I venture to go a little further and point out that there is no law that on the death of a tenure-holder all the heirs are bound to register their names in the landlord's office. The only penalty for non-registration in the case of a permanent tenure-holder is provided in Section 16 which lays down the bar to his recovering rent from his tenant. In Jagattara's case [1910] 37 Cal. 75 was said that the decision in Ashok Bhuiyan's case [1905] 9 V.W.N. 843 lays down no more than this : that a landlord is not justified in treating the registered tenant of a raiyati holding as the sole tenant merely because his co-sharers in the holding are not registered; and it was also decided that there is nothing in that case to prevent the whole body of tenants of a raiyati holding electing to treat one of their number as their representative in their dealings with the landlord; the fact that only one tenant is registered is merely an item in the evidence on the question whether he is or is not the representative qua the landlord. The case of Afraz Molla V/s. Kulsumunnessa Bibi [1906] 4 C.L.J. 68 held that the mere fact that a tenant's name is not registered "cannot prejudice her rights." The doctrine of representation is grounded really on the principle of estoppel as was pointed out in Raja Koer V/s. Ganga Singh [1909] 13 C.W.N. 700. It is unnecessary to quote, any more cases. The rulings cited by the Munsif have been discussed in the cases I have mentioned. The mere fact that Chiniraddin's brothers were not registered in the landlord's office is not enough to show that they held out Chiniraddin as their representative in their transactions with the landlord. Chiniraddin was merely a benamidar for his father and on the father's death, Chiniraddin was a benamidar for the other co-sharers for their shares. All the co-sharers were in possession and the landlords, it may be taken from the circumstances of the case and from their subsequent conduct, were aware of the real state of things. There was, tharefore, no representation. In my opinion, therefore, the decision of the lower appellate Court should be upheld and the appeal dismissed with costs. Cuming, J.