Francis W. Maclean, K.C.I.E., C.J.
1. This case in my opinion does not fall within Section 78 of Bengal Act VII of 1876.
2. The facts are these: The father of the present plaintiffs was the registered proprietor of the property in question. He died on the 19th September 1893, and his heirs sold the property on the 4th December in that year. This suit is for the recovery of the rents which accrued between April and the 4th December 1893. As regards the rent accruing between the 19th September 1893 when the father, the registered proprietor, died, and the 4th December 1893, when his heirs sold the property, it cannot be recovered, for the plaintiffs must be regarded as suing as proprietors, and they were not registered as such, and consequently as regards that part of the claim they are successfully met be Section 78 of Bengal Act VII of 1876. But as regards the rent accruing between April and the particular date fixed for payment, which I understand was some day in July, they are entitled in my judgment to maintain the action to recover that amount as representatives of their late father. They are not suing as proprietors; they are suing as his heirs, and anything they may recover will belong to his estate. Otherwise, if a registered proprietor did not get in his rents, then sold the property to a purchaser who registered and the previous proprietor then died, his representatives could not recover the arrears of rent. This cannot be. The answer, as I have said, is that they are suing, not as themselves proprietors, but as the legal representatives of the late registered proprietor, and Section 78 does not apply to such a case.
3. A case somewhat similar in principle to the present was recently decided by a Division Bench of this Court, of which I happened to be a member-Belchambers v. Russan Ali (1898) 2 C.W.N., 493.
4. It has been suggested that the plaintiffs cannot sue as representatives, inasmuch as they have no certificate in accordance with the provisions of Section 4 of the Succession Certificate Act VII of 1894. That is successfully met by Sub-section 2 of the section, which says that the word 'debt' includes any debt except rent. The debt in this case is for rent.
5. Upon these grounds the appeal must be allowed to the extent I have indicated, and the appellant must have proportionate costs in this Court and in the Court below.
6. I am of the same opinion. I think as regards that portion of the claim which is for rent that accrued due during the lifetime of the plaintiffs' father, that is the rent for the first quarter of the Bengali year 1300, that it is not in any way barred by the provisions of Section 78 of Bengal Act VII of 1876, because that portion of the rent the plaintiffs are entitled to claim not merely as proprietors, but also as the legal representatives of the deceased proprietor who was registered under Bengal Act VII of 1876, and in whose lifetime it fell due. Section 78 bars the claim for rent only when the claim is made by the plaintiff as proprietor or manager of an estate or revenue-free property, in respect of which he is required by the Act to cause his name to be registered, and, as I have just stated above, the plaintiffs are entitled to make the claim, not as proprietors for the time when the rent accrued, but as legal representatives of the proprietor to whom the rent became due.
7. Then, it was urged by the learned Vakil for the respondent that, if the plaintiffs claimed the rent as being money due to the estate of their deceased father, they must in the first place produce a succession certificate under Section 4 of Act VII of 1889, and in the second place, the claim would in that case be of the Small Cause Court class, and this second appeal would be barred by Section 586 of the Code of Civil Procedure.
8. As to the first contention, as has been pointed out by the learned Chief Justice, it is met by Sub-section 2 of section i of Act VII of 1889. As to the second objection, that, I think, is met by Article 8 of the second schedule of Act IX of 1887, the claim made by the plaintiffs being one for rent. In taking this view, I do not overlook the principle of law that a party cannot, by any wilful unwarrantable addition to or modification of his claim, oust the jurisdiction of the Court in which the suit ought properly to have been brought. I do not think, having regard to the facts of this case, that it is one that comes within the application of that principle.
9. In regard to the rest of the claim, I have nothing to add to what has been said by the learned Chief Justice.