P.C. Banerji, J.
1. This appeal arises out of a-suit brought for the recovery of the share of profits of a co-sharer for the year 1318 Fasli. The plaintiff is the assignee of the profits from the co-sharer, who is the second defendant in the suit. The suit was brought against Kundin Singh, who was the lambardar in the year in question. The plaintiff claimed a share not only of the profits actually realised but also of the profits which, according to him, had not been realised by the lambardar through gross negligence and misconduct. During the pendency of the suit the lambardar died 'and his legal representative, Tej Singh, was brought upon the record. He contended that he was not liable for amounts which his predecessor-in-title, namely Kundan Singh, had neglected to collect. The Court of first instance repelled this contention and made a decree for what it held to be the total amount shown in the rent roll and other sums which had not been shown in the rent roll but which the lambardar must be taken to have realised. Upon appeal by the defendant, the legal representative of the lambardar, the lower Appellate Court dismissed the suit, holding that the representative of the lambardar could not be held liable for amounts which the lambardar had through misconduct and negligence not collected, and as the amount actually collected fell short of the Government revenue and cesses paid by him, the plaintiff was not entitled to recover anything from the defendant. From this decision of the learned Judge of the lower Appellate Court the present appeal has been filed. The question we have to determine is whether in the circumstances of the present case, the contention of the defendant is a valid contention. It seems to me that the decision of the case turns upon the construction of Section 164 of the Agra Tenancy Act under which the suit was brought. That section provides that a co-sharer may sue the lambardar for his share of the profits of a mahal or of any part thereof. In any such suit the Court may award to the plaintiff not only a share of the profits actually collected but also of such sums as the plaintiff may prove to have remained uncollected owing to the negligence or misconduct of the defendant. What we have to consider is, what is the scope of this section. The test for answering the question raised is whether by the word 'defendant' the Legislature meant the original defendant to the suit or the person who was in the array of defendants at the time the decree was passed. By Section 166A lambardar includes the heirs, legal representatives, executors, ad ministrators and assigns of a lambardar. The present suit was not brought against a representative of the lambardar but. against the lambardar himself. Sub-Section 2 seems to me to refer to the case of a person who was sued as the original lambardar, and in that view the misconduct Or negligence which would entitle the plaintiff to recover a share of the amount which remained uncollected would be the misconduct or negligence of the defendant who was sued, namely, (as in the present case) the original lambardar. If the person who was sued was the representative of the lambrdar, he would be the defendant in the suit and he would not be liable according to the language of the section, as the misconduct of negligence could not be his misconduct or negligence, However we are not called upon to decide that question in this case. In the present case, the original lambardar who made the collections in the year in question, was sued and it was after his death that his representative was brought upon the record. The word 'defendant' in Sub-section (2) of Section l64 contemplates, in my opinion, the original defendant to the suit and therefore the amount to which the plaintiff would be entitled would include such sums as remained uncollected owing to the negligence or misconduct of the original defendant, that is, of the lambardar. This may create an anomaly, but we have to construe the section as it stands. The case of Murad-un-nissa v. Ghulam Sajjad 20 A. 73 : A.W.N. (1897) 197 : 9Ind. Dec. (N.S.) 406, to which reference was made, was a case under Act XLI of 1831. Section 209 of that Act provided that in a suit brought against a lambardar for a share of profits, the plaintiff Would be entitled to a sum equal to the plaintiff's share in the profits which through gross negligence or misconduct the lambardar had omitted to collect. That was a suit in which the heir of the lambardar was subsequently brought upon the record on the death of the lambardar. Having regard to the provisions of Section 209, the liability of the lambardar would be for amounts which he had not collected. The word 'lambardar' in Act XII of 1581 did not include the legal representative of a lambardar and, therefore, having regard to the fact that the word 'lambardar' was used in that section, the heir of the lambardar could not be held liable. That case, therefore, does not seem to have any bearing upon the question we have to decide with reference to the language used in Section 154 and the addition of Section 166 to the present Tenancy Act. The case of Dip Singh v. Ram Charan 29 A. 15 : A.L.J. 608 : A.W.N. (1906) 252 was a suit against the heir of a deceased lambardar and was brought under the present Tenancy Act. In that case it was held that having regard to the use of the word defendant in the section the heir, who was the defendant, could not be held liable, as negligence or misconduct referred to in the section was not his negligence or misconduct. That case, therefore, does not help us in the decision of the present suit, In my opinion in view of the provisions of Section 16A, the question of gross negligent or misconduct of the original lambardar against whom a suit was brought, would have to be gone into and if such negligence or misconduct was shown, his representative would be liable to the extent of the assets of the deceased which came into his hands. In any case the liability of the representative of the lambardar would not be a persona] liability. On principle it does not seem that the assets of the deceased lambardar should escape liability, simply because the said lambardar who had neglected to make collections or was guilty of gross misconduct happened to die after the expiry of the year during which the collections had to be made. In my opinion no question of tort or of quasi contract arises under the circumstances mentioned above. The case, as I have already said, depends upon the construction of Section 164 and I would construe the section in the manner I have stated above. In my opinion the decision of the lower Appellate Court ought to be reversed and the case remanded to that Court.
2. I concur both in the proposed order and in the reasons given for the same. I only wish to refer to the provisions of Order XXII, Rule 4, of the Code of Civil Procedure as further strengthening the position taken up. When the set was instituted the original defendant, Kandan Singh, was under a liability to the plaintiffs by reason of the provisions of Clause (2) of Section 164 of the Tenancy Act. On his death his son Tej Singh was brought on the record as his legal representative. It was then open to Tej Singh to make any defence appropriate to his character as a legal representative to Kundan Singh deceased. If Tej Singh had been sued as an original defendant after the death of his father it would, no doubt, have been open to him to say that under the Statute the negligence or misconduct on which a certain liability was imposed must be that of the defendant in the suit, and that he himself could not be held liable for any negligence or misconduct on the part of his father: but such a defence is, in my opinion, inappropriate to the character of Tej Singh as legal representative of a deceased defendant brought upon the record under Order XXII Rule 4, of the Code of Civil Procedure. This was a case in which it could not be pleaded that the right to sue did not survive, within the meaning of the rule in question; and if the right to sue survives it must do so against the legal representative of a deceased defendant in the same manner as against that defendant himself. In my opinion on the wording of Sections 164 and 166 of the Tenancy Act, the plaintiff's claim, based upon the second clause of Section 164, was maintainable against the legal representative of Kandan Singh after the death of Kunian Singh.
3. I entirely agree. I only want to add one word to prevent it being supposed that there is anything in my original order of reference in this case suggesting dissent from the decision in Dip Singh v. Ram Charan 29 A. 15 : A.L.J. 608 : A.W.N. (1906) 252. On the contrary I agree with that decision, it being imposable to hold that in a suit against the representative of the deceased lambirdar the defendant should be held responsible in that suit for the negligence or misconduct of somebody else, and that is what I understand 29 Allahabad decided. The difficulty arises from the head note. What we decide in this case is inconsistent with the head-note of 29 Allahabad if you separate it from the content, but as I said in my order of reference, that case was deciding a totally different paint which really does not bear on the case before us. The trouble unfortunately frequently arises owing to judgments being reported without a clear statement, of the facts which give rise to the decision, and even at. this moment on a closer examination of the decision in Gulab v. Fateh Chand A.W.N. (1886) 32 : 4 Ind. Dec. (N.S.) 1152. to which I made reference in my order of reference, it is impossible to say whether the suit was brought against the heirs after the death of the lambardar or whether they had been made defendants original ally. It would appear to have been brought after the death of the lambardar, but that is a matter of inference and is not seated anywhere. I agree in the order proposed.
4. The order of the Court is that the appeal is allowed, the decree of the Court below is sat aside and the cases is remanded to that Court with directions to re admit it under its original number in the register, and to try and determine the other questions which arise in the case. Costs here and hitherto will be costs in the cause.