1. We Lave no doubt that the lease was executed by the first defendant on behalf of the family. He admits his grandfather enjoyed these lands as lessee for 8 years; after him his father held the same as lessee for 6 or 7 years. His lease was granted on the 17th June 1899 and it was only registered with the security bond executed by him and his father for himself and as (sic) for his two other minor sons. It is (sic) the security bond would have been executed if the lease was not taken on behalf of the family. We, therefore, accept the evidence of the plaintiff's 2nd witness who says that the land was taken for the benefit of the family.
2. It is also contended that there was no issue on this question. Though there is no specific issue, the 6th issue raises the question. No objection was taken to the reception of the plaintiff's evidence on this point and evidence was adduced in reply. As the lease was taken for the benefit of the family, the father, for, himself and the minor sons, and the 2nd defendant were competent to execute the security bond to secure the lease of the lands held by the family, for about 14 years. There is no doubt that if security had not been furnished, the lease would not have been registered and the lands would have been lost to the family. The case of Radha Pershad Singh v. Mussammat Talook Raj Koer 20 W.R. 38, has no application. It was not the case of a joint family carrying on a family business when the managing member is entitled to pledge the credit of the family or mortgage joint family properties to carry on the business. The defendants Nos. 2 to 4 further contend that under the security bond, they have bound themselves to pay the amount due up to the date of the first default in payment of rent. The terms of the bond are not so restricted. It is open, no doubt, to the lessor to determine the lease on the first default, but if the lease is not so determined, the lessee continues to hold as before and if a default in payment is subsequently made the family lands continue liable under Exhibit B. We are of opinion that so long as the 1st defendant continues to hold as tenant, the 1st to 4th defendant's liability under Exhibit B for any default in payment subsists.
3. Their liability extended up to Rs. 5,300, the amount in the security bond. The Subordinate Judge, has, however, held that the family properties are subject to a charge for Rs. 3,700 and odd, the rent remaining due for the Fasli 1303 and 1311. The tenant was evicted on the 28th February 1903 during the currency of the Fasli year 1312. The rent for that year was payable in three instalments of which the 1st instalment of the sum of Rs. 1,761 fell due on the 1st February under the express terms of Section 41 of Act VIII of 1865. The tenancy was only determined on eviction on the 28th February. The sum of Rs. 1,761 having already fallen due before that date, we are of opinion that the properties of the defendants Nos. 1 to 4 are liable to discharge that sum also in addition to the sum of Rs. 3,700 and odd allowed by the Subordinate Judge subject to the limitation that the total amount does not exceed the sum of Rs. 5.300 mentioned in Exhibit B. We are not satisfied that the tenancy was determined before that date. The memo, of objections put in by respondents Nos. 2 to 4 is dismissed with costs, and the appeal is allowed with costs. The 6th and 7th defendants are entitled to get their costs in the suit and in the appeal out/of the estate or its sale proceeds. The decree will be modified accordingly.