RAJENDRA NARAYN BASU Vs. DEBENDRA NATH MUKHOPADHYA

JUDGEMENT

(1.) The suit in which this appeal arises was brought by the plaintiffs, now respondents, for recovery of arrears of rent for the years 1328 and 1329 B.S. in respect of a certain putni tenure held by defendants 1 to 4 under them. The case made in the plaint is that Narendra who was a brother of defendant 1, and the father of defendants 2 to 4 was the proprietor of the zemindari under which the putni in question is held; that he sold the zemindari to the plaintiff and took the putni settlement from them in the benami of defendant 6 in 1319 B.S.; that the putni was sold in execution of a money decree against Narendra and it was purchased by defendant 1 to 4 in the name of defendant 5, wife of defendant 1 in the year 1917; that Narendra made a will by which he appointed defendant 1 as executor, that the money execution sale took place after the death of Narendra and the purchase was made by defendant 1 for self and as executor to the estate of Narendra, father of defendants 2 to 4; that shortly after the auction purchase defendant 5 executed a deed of release in favour of defendant 1, that the deed of release stated that the release was in favour of defendant 1 in his personal capacity as well as in his capacity as executor to the estate of Narendra, that defendants 1 to 4 defaulted in the payment of putni rent for the years in suit and hence the suit. The plaintiffs further alleged that they purchased the putni at a sale held under Regn. 8 of 1819 in 1331 for arrears of rent for 1330 B.S.

(2.) Defendant 1 did not contest the suit. Defendants 2 to 4 by their defence denied the relationship of the landlord and tenant with the plaintiffs, they contended that the putni in respect of which the present rent suit was brought was the stridhan property of defendant 5.

(3.) The Munsiff held that defendants 1 to 4 were the real owners of the putni and as defendant 1 was discharged from his position as executor before the institusion of the suit the plaintiffs proper remedy was against defendants 1 to 4 personally. He accordingly decreed the suit against defendants 1 to 4, dismissing plaintiffs claim against defendants 5 and 6 on the ground of want of cause of action.