The legal principle established is that the liability of a tenant in common for rent is based on privity of estate, and the absence of possession can be considered as evidence of non-acceptance of inheritance, leading to the lack of privity of estate by succession.

JUDGMENT

1. This appeal arises out of a suit for recovery of arrears of rent of a nontransferable Appeal from Appellate Decree No. 397 of 1936 occupancy holding for the years 1337 to 1339 and for the first 12 days of Baisakh, 1340, B. S. One Sonabon Bibi had 2 1/2 annas share in this holding. She sold her entire share in the holding to some persons in 1332 and 1333, B. S. Thereafter she died leaving Defendant No. 2 in this suit as her sole heir. The Courts below have dismissed the suit against Defendant No. 2 and have decreed it against the other Defendants. This Second Appeal is by the Plaintiff against the decree; of the Courts below dismissing the suit against Defendant No. 2. The only point for determination in this appeal is whether the Courts below were right in dismissing the suit against Defendant No. 2. " Rent" means whatever is lawfully payable or or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant [sec. 3, cl. (5) of the Bengal Tenancy Act]. "The liability of a tenant to pay rent arises from the fact of possession of the land as a tenant where there is no express contract and all persons in possession of land as tenants are under an obligation to pay the rent for the land to the landlord, whether they get into possession by right of succession or assignment.... The law imposes a liability on a tenant in common based on privity of estate for all covenants running with the land." Per B. B. Ghose, J., in Koilash v. Brojendra C. W. N. 1000 at p. 1006 : s. c. 42 C, L. J. 232 at p. 241 (F. B.) (1925). There is no privity of contract between Plaintiff and the Defendant No. 2. Defendant No. 2 therefore can be made liable only on the ground that a privity of estate has been created between him and the Plaintiff. An occupancy holding is heritable by sec. 26 of the Bengal Tenancy Act. By sec. 5 (2) of the Bengal Tenancy Act the successor-in-interest of a raiyat is a raiyat and by sec. 20 (3) of the Act the heir of a raiyat is to be deemed to. be a raiyat for the purpose of sec. 20. These provisions have been enacted for the benefit; of the heir of a raiyat. They do not indicate that the heir is bound to accept the inheritance. If the raiyat accepts the inheritance, he must bear the burden until he surrenders. Absence of possession or cultivation by him by itself cannot exonerate him from the liability to pay rent. But absence of, possesion is cogent evidence to be taken into consideration with other facts in determining whether the inheritance was accepted or not. If the heir does not accept the inheritance, there is no privity of estate by succession. The decision in Peary Mohan Mookerjee v. Kumaris Chunder Sircar (2), proceeded on the footing that the inheritance was accepted by the heirs. The Courts below in this case have concurrently found that Defendant No. 2 neither accepted the inheritance nor entered into possession. They were therefore right in dismissing the suit against Defendant No 2.

The appeal is accordingly dismissed but there will be no order for costs in this appeal.