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1925 Supreme(Cal) 316
CALCUTTA HIGH COURT
Walmsley, J., Mukerji, J., Greaves, J., C.C. Ghose, J., B.B. Ghose, J.
Kailash Chandra Mitra - Appellant
Versus
Brojendra K. Chakravarti & Ors. - Respondent
Decided On : 22-07-1925
The main legal point established in the judgment is that under the Bengal Tenancy Act, a suit for rent is not maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors-in-interest on the record.
Headnote:
Rent - Suit Maintainability - Bengal Tenancy Act - Section 88, Section 43 of the Indian Contract Act, Order 1 Rule 6 C.P.C. - Chamat Karini Dasi v. Triguna Nath Sardar, Subashi Dassi v. Raj Krishna Roy, Meajan Mondal Vs. Jogendra Nath De, Kasi Kinkar Sen v. Satyendra Nath Bhadra, Shaikh Sahad v. Krishna Mohan Rasak, Sinha Krishna Singh v. Jagat Chandra Talukdar, Abinash Chandra Roy and Another Vs. Fulchand Chaudhuri - Krishna Das Roy v. Kalitara Chaudhurani - Mohendra Nath Bose v. Abinash Chandra Bose - United Dairies Ltd. v. Public Trustee - Rup Narain Singh v. Jugoo Singh - Ananda Kumar Naskar v. Haridas Haldar - Sreemati Jogemaya Dasi v. Girindra Nath Mukerji - Rammoyi Dad v. Rupai Pramanick - Abdul Bab v. Eggar - Boali Bibi v. Hamjuddi Mondal - Khetter Mohan Pal v. Prankrista Kaviraj
Fact of the Case:
The plaintiffs, as four-annas co-sharers of a certain taluq, sought to recover arrears of rent from the defendants who, they alleged, were holding under them as tenure-holders. The defendants claimed they were not tenure-holders but co-proprietors of the estate and that the suit was not maintainable as all the successors-in-interest of the original transferee were not made defendants.
Finding of the Court:
The Court found that the suit was not maintainable without impleading all the parties who were known to be the tenants of the holding. The suit was remanded to the Court of first instance to be dealt with as indicated, and all costs incurred including the costs of this Reference should abide the result.
Issues: The main issue was whether a suit for rent is maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors-in-interest on the record.
Ratio Decidendi: The Court held that under Section 88 of the Bengal Tenancy Act, when a person obtains a share of a tenure by assignment or inheritance, he becomes a co-tenant with the other tenant or tenants in the whole tenure. Each of the joint tenants or tenants-in-common would be liable to the lessor on the covenants running with the land, and so for the whole rent. The suit was found not maintainable without impleading all the parties who were known to be the tenants of the holding.
Final Decision: The appeal was dismissed with costs before the Divisional Bench but without any order as to costs in respect of this Reference.
ORDER
Greaves and Mukerji, JJ. - This appeal arises out of a suit wherein the plaintiffs, as four-annas co-sharers of a certain taluq, sought to recover arrears of rent from the defendants who, they alleged, were holding under them as tenure-holders. The defence of the defendants in substance, was that they were not tenure-holders but co-proprietors of the estate and further that the suit was not maintainable as all the person, who are successors-in-interest of the original transferee, Gour Sunder Singh, and whose names are recorded as such in the finally published record-of-rights were not made defendants therein.
2. The suit was decreed by the Court of first instance, and the said decision has been upheld by the lower Appellate Court. The defendants have thereupon preferred this appeal, in which the validity of the decisions of the Courts below has been challenged upon the two grounds which formed their defence as stated above.
3. As regards the first of these grounds, we are not prepared to accede to the appellant's contention. This necessitates our dealing with the second ground.
4. So far as the second ground is concerned: on the finding of the lower Appellate Court it is clear that some of the persons on whom devolved the interest of the original transferee, Gour Sundar Singh, by purchase and Inheritance, have not been made parties to the suit. The question whether under such circumstances the suit is maintainable is one about which there is a clear conflict of judicial opinion in this Court, and we must necessarily dissent from one or other of the catena of decisions dealing with the point.
5. The authorities in favour of the view that a suit framed in this way is maintainable are the cases of Chamat Karini Dasi v. Triguna Nath Sardar S.A. No. 1015 of 1915 decided on 18th July 1916, Subashi Dassi v. Raj Krishna Roy 23 C.W.N. 27 (Notes) and Meajan Mondal Vs. Jogendra Nath De and Others, AIR 1921 Cal 81 . A contrary view has been taken in the cases of Kasi Kinkar Sen v. Satyendra Nath Bhadra 15 C.W.N. 191, Shaikh Sahad v. Krishna Mohan Rasak [1916] 24 C.L.J. 371, Sinha Krishna Singh v. Jagat Chandra Talukdar [1918] 45 I.C. 732, and Abinash Chandra Roy and Another Vs. Fulchand Chaudhuri and Others, AIR 1924 Cal 165 In the case of Krishna Das Roy v. Kalitara Chaudhurani 22 C.W.N. 289, Chatterjea, J., expressed an opinion that the liability of all the heirs of a contracting tenant is a joint liability; but Richardson, J., reserved his opinion on that question.
6. This conflict has been noticed in several cases decided in this Court, amongst which reference may be made to the decision in the case of Mohendra Nath Bose v. Abinash Chandra Bose AIR 1928 Cal. 615, in which the advisability of referring the matter to the Full Bench was recognized. In the present case, the question directly arises and in our opinion it must be decided in order to dispose of the appeal.
7. The point upon which we must necessarily differ from the one or the other set of decisions referred to above is as be whether a suit for rent is maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors-in-interest on the record.
8. We accordingly refer the case to the Full Bench in accordance with the provisions of Rule 2, Chap. VII of the High Court Rules, Appellate Side.
Opinion
Walmsley, J.
9. I agree in the view expressed by my learned brother Mr. Justice B.B. Ghose in the judgment which he is going to deliver.
Greaves, J.
10. I also agree in the view expressed in that judgment.
C.C. Ghose, J.
11. The question that has been referred to the Full Bench is as to whether a suit for rent is maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors-in-interest on the record. In my view, the answer to the question ought to be in the negative. It will serve no useful purpose to discuss the conflicting authorities on the point. It is suff
