1. This appeal arises out' of a suit brought by the plaintiffs-appellants for recovery of arrears of rent against the first defendant who is the tenant of a house and shop belonging to the plaintiffs and the defendant Wajih-ud-din. Wajih-ud-din owns a small share in the shop, but it is alleged that he used to collect the rent. On the 3rd of April, 1905, the plaintiffs served the first defendant, Muhammad Umar, with a notice stating that they suspected the good faith of Wajih-ud-din and directing him not to pay the plaintiffs share of the rent to Wajih-ud-din. Shortly after this notice, on the 24th of April, 1905; the plaintiffs brought a suit against Wajih-ud-din for partition and obtained a preliminary decree on the 29th of July 1905. The final decree in the partition suit was made by the Court of first instance on the 20th of September, 1906. There was an appeal to this Court and the case was remanded for a fresh partition. This partition took place on the 9th of March, 1908. Under it the shop occupied by the defendant fell into the plaintiffs' share. It was after this partition that the suit out of which this appeal has arisen was brought on the 25th of March, 1908. After the preliminary decree for partition made by the Court of first instance, Muhammad Umar obtained from Wajih-ud-din, on the 31st of May, 1906, a receipt for Rs. 510, in full payment of the rent due up to that date and for an additional sum of Rs. 609-9-0 for rent in advance. The present suit relates to the period from the 1st of March, 1905, to the 29th of February, 1908. The claim was contested on the grounds that the plaintiffs were not competent to maintain the suit being part owners of the property, and further that payment to Wajih-ud-din was a full discharge for the rent due.
2. The Court of first instance held that no payment had actually been made 'and the receipt of the 31st of May, 1906, was collusively given. Upon appeal the learned District Judge without going into the various pleas raised by the appellant before him held that the suit was fundamentally bad' and that the plaintiffs as part owners of the property let to the defendant could not sue him for any portion of the rent. In view of the circumstances of this case this opinion of the learned Judge is, in our judgment, erroneous. The plaintiffs served the defendant, Muhammed Umar, with a notice, forbidding him to pay their share of the rent to Wajih-ud-din. If in spite of this notice the defendant paid the rent to Wajih-ud-din, he did so at his own risk. It is manifest that if any payment of the plaintiffs' share of the rent was made to Wajih-ud-din after the issue of is he notice referred to above, in spite of the plaintiffs' protest and at a time when partition proceedings were going on, such payment was made in collusion with Wajih-ud-din. This collusion is further manifest from the fact that payment is alleged to have been made not only for arrears of rent but also for rent in advance, a circumstance which is highly improbable. Under these circumstances the plaintiffs were entitled to maintain the suit after making Wajih-ud-din a defendant to it. This case is similar to the case of Doorga Churn Surma Jamna Dassee 12 B.L.R. 289 : 21 W.R. 46, decided by a Full Bench of the Calcutta High Court. The learned Counsel for the respondent has cited a number of cases which, in our opinion, are distinguishable, inasmuch as in those cases no notice was issued to the tenant directing him not to pay the rent to the plaintiffs' co-sharer, nor was there any collusion in those cases between the tenant and such co-sharer.
3. We accordingly allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance. The appellant will have his costs in this Court and in the Court below.