NARAIN Vs. NILKANTH

JUDGEMENT

(1.) 1. The facts leading to this second appeal are shortly these: The plaintiff-respondent sued the defendant-appellant for lease-money for two years, 1924-25 and 1925-26, on the allegation that the lease of the fields was taken for five years in 1920 by the appellant's brother, Maruti, as manager of the joint family consisting of himself and the appellant, and that the appellant had himself cultivated the fields for the two years in respect of which the rent was claimed.

(2.) THE appellant resisted the claim by alleging that since the last eight years before the date of suit he had become separate in mess and residence from Maruti; that the separation in estate had also taken place between them three or four years before 26th June 1928; and that he did not cultivate the fields in question in 1924-25 and 1925-26 for which rent was claimed.

(3.) THE defendant has, therefore, filed the present second appeal and the only contention pressed by Mr. Bobde, the learned advocate for the appellant, is that in the absence of a definite finding that the plaintiff respondent created both the brothers as lessees the defendant-appellant could not be held liable to the plaintiff's claim even on the finding that he cultivated the fields in the years for which the rent was claimed. Eeliance was placed in support of this argument on the following observations appearing at p. 180 of the report of the case of Deochand v. Moti [1905] 1 N.L.R. 178: Therefore, the question which the Courts had to decide in the present case was not whether tin nazarana was paid out of the family-funds or whether the cultivation was jointly shared by all the members of the family, but who were the parties to the contract of tenancy. Did the defendant accept Gangaram as his tenant or did he deal with Gangaram as managing member of the joint family? If he dealt with Gangaram as an individual, then, the present suit must fail. If, on the other hand, he dealt with Gangaram as repres9nting the family, then on the death of Gangaram the plaintiff would take by right of survivorship and would be entitled to recover possession.