Mitra and Geidt, JJ.
1. This is an appeal in a suit for rent. The plaintiffs have appealed to this Court. One of the defendants died,' but no attempt was made by the appellants to get the legal representatives of the deceased respondent substituted on the record. A preliminary objection has, therefore, been taken by the learned vakil for the other respondents that the appeal cannot proceed and that we should pass an order directing that the appeal has abated. The liability of the defendants is, however, joint an 1 several, and the death of one of the defendants without his legal representatives being substituted in his place cannot exonerate the other defendants from liability. The appeal abates only so far as the deceased defendant is concerned.
2. As regards the other defendants, we see no reason why the appeal should not proceed. Section 368 of the Code no doubt says that the suit shall abate, but we must read the section as if the words are 'should abate so far as the deceased defendant is concerned.' Oar attention has been drawn to the case of Hem Kunwar v. Arriba Prasad (1900) I.L.R. 22 All. 430 as showing that, if one of the defendants died and no attempt was made to get his heirs substituted on the record, the appeal should abate. But that was a suit for possession of land, and it does not appear that the interest of the several defendants could be discriminated. The liability of the defendants was not in that case joint and several as in the present case.
3. We therefore think that the preliminary objection cannot succeed, but we hold that the appeal, so far as the deceased defendant is concerned, has abated.
4. The learned Judge in the Lower Court, in deciding the case has relied on the fact that the tenure was transferable, and its transfer by a registered kobala was sufficient to discharge the liability of the defendants, who were tenants in occupation. The Munsifl found that the transfer effected by the defendants to Kumudini was colourable, and no consideration passed and Kumudini was never in possession. On these facts the Munsiff held, and we think correctly, that nothing passed by the sale and the original tenants were liable in the same way as they had been before the execution of the kobala. The learned Judge has in holding a contrary view relied on the cases of Kristo Bulluv Ghose v. Kristo Lal Singh (1889) I.L.R. 16 Calc. 642 and Chintamoni Dutt v. Bash Behari Mondul (1891) I.L.R. 19 Calc. 17. These cases are clearly distinguishable. They do not refer to cases in which the transfers were colourable and benami. These cases show that a valid transfer under Section 12 of the Bengal Tenancy Act operates to discharge the transferor from liability to pay rent and the liability to pay rent passes to the transferee. But in order to give effect to a transfer, the transfer should be a valid one and not colourable and benami.
5. The case must, therefore, go back for determination of the question whether Kumudini was merely a benamdar of the defendants, or in other words, whether the transaction between her and the defendants was not colourable.
6. The costs of this appeal will abide the result.