1. The question for our decision on this reference is whether a receipt for rent granted by the landlord or his agent containing a recital that a tenant's name is registered in the landlord's sherishta as the tenant of a portion of the original holding at a rent which is a portion of the original rent amounts to a consent in writing by the landlord to a division of the holding and a distribution of the rent payable in respect thereof within the meaning of Section 88 of the Bengal Tenancy Act.
2. The matter was referred to a Full Bench by reason of a difference of opinion which was regarded as existing between the case of Aubhoy Churn Maji v. Shoshi Bhusan Bose (1888) I. L. R. 16 Cal. 155 and an unreported decision of Norris and Beverley, JJ. in S. A. No. 1537 of 1891, dated 9th August 1892, which is set out in the Paper Book. I am not myself quite satisfied that, as between these two cases, there is any real difference of opinion, for it is not very clear what the actual form of the receipt was in the case of Aubhoy Churn Maji v. Shoshi Bhusan Bose (1888) I. L. R. 16 Cal. 155. In the present case, the receipt is in the form given in the schedule to the Bengal Tenancy Act. I assume for the purpose of our decision, and I think the question submitted to us presupposes, that the agent is duly authorised by the landlord to give such a receipt. If that be so, I entertain no doubt whatever that a receipt given by the landlord or by his duly authorized agent in the form of the receipt given in this case, amounts to a consent in writing by the landlord to a division of the holding and a distribution of the rent payable in respect thereof within the meaning of Section 88 of the Bengal Tenancy Act.
3. As regards the other point, which was rather hinted at than argued, viz., that the matter was res judicata, having regard to the findings of fact by the Lower Appellate Court, the point is not arguable.
4. The appeal therefore fails and must be dismissed with costs including the costs of this reference.
5. I agree.
6. I also agree.
7. I agree with the learned Chief Justice in thinking that the receipt produced in this case is sufficient to answer the requirements of Section 88 of the Bengal Tenancy Act. I only wish to add one word with reference to the reason for this reference to a Full Bench. Although the form of the receipt in the case of Anbhoy Churn Maji v. Shoshi Bhusan Bose (1888) I.L.R. 16 Cab 155 is not set out, it appears from the statement of facts in the report that the receipt was one for the smaller rent payable in respect of the smaller area contended for by the defendant. That receipt was considered insufficient to meet the requirements of Section 88 by the Lower Appellate Court; and in the judgment of this Court, the learned Judges observe, after referring to the view taken of Section 88 by the Lower Appellate Court: ' In this view of Section 88 we agree.' It was this observation that influenced me in referring the case to a Full Bench.
8. I concur in the judgment of the Chief Justice.