Ghose and Pargiter, JJ.
1. This appeal arises cut of a suit for rent instituted by the zemindar against the defendant, who had at one time held an 8 1/2-anna share of a taluq under him, the plaintiff. This 8 1/2-anna share the defendant transferred to a third party in Aswin 1306 B.S. The present suit is in respect of the rent from Aswin 1305 to Pous 1308.
2. It appears that when the said transfer was made, the notices prescribed by Section 12 of the Bengal Tenancy Act were given to the zemindar. But notwithstanding this he has brought the present suit for recovery of rent for the entire period from Aswin 1305 to Pous 1308 against the transferor, the defendant; and the whole question that was raised between the parties in the Court below was whether, notwithstanding this transfer, the defendant was still liable to the zemindar for the entire rent claimed.
3. The Court below apparently considered the act of the defendant in making the transfer in question as a subdivision of the tenure; and, acting upon that view, it held that the zemindar was not bound to recognize such subdivisions, and that therefore he would be entitled to recover the whole rent claimed as against the defendant. Now, it appears from the plaint and from the statement of facts given in the judgment of the lower Appellate Court that the sikmi taluq at one time belonged to one Durga Nath Bhattacharyya at an annual jama of Rs. 160; 8 1/2-anna share of this taluq was sold by the heirs of Durga Nath to Abhoya Kanta Labiri in the benami of the defendant, and the zemindar apparently recognizing this transfer, has been receiving from the defendant rent in proportion to the 8 1/2-anna share of the taluq purchased by him. This has been going on as we gather from a great many years, and the Subordinate Judge states in his judgment that the defendant holds separately 8 1/2-anna share of the taluq in question at a yearly rent of Rs 85, the original total rent being Rs. 160. Now, having regard to these facts and circumstances, if there was any subdivision of the tenure, the subdivision was effected with the consent and acquiescence of the zemindar himself, and it is obvious that the act of the defendant in mating the transfer of the 8 1/2-anna share, which he had purchased from Durga Nath, could not have the effect of making a subdivision of the tenure properly so called. Section 12 of the Bengal Tenancy Act speaks of the transfer of a permanent tenure by sale, gift or mortgage and so forth; and it lays down the procedure which is to be followed when such a transfer is effected. And it says that upon such transfer taking place the Collector shall give a notice to the landlord in the prescribed manner. Upon such notice being given to the landlord, the tenure-holder is no longer liable for the rent to the landlord, as has been held by this Court in certain cases: see for instance Chintamoni Dutt v. Rash Bekari Nondul (1891) I.L.R. 19 Calc. 17. Section 17 of the same Act says: 'Subject to the provisions of Section 88, the foregoing sections shall apply to the transfer of or succession to a share in a permanent tenure.' Referring to Section 88, we find it laid down that 'a division of a tenure or holding or distribution of the rent payable in respect thereof shall not be binding upon the landlord, unless it is made with his consent in writing;' but, as already stated, the act of the defendant in making the transfer in question does not amount to a division of the tenure or holding in question. Turning back to Section 17 of the Act, we observe that the provisions of Section 12 and the following sections apply to the case of a transfer of a share the permanent tenure; and this was a transfer of a share of the tenure, which, as already stated, the defendant held separately There is nothing so far as we can see in the Act preventing such a transfer; and the notices prescribed by Section 12 of the Act having been given to the landlord, as was found by the Munsif, we do not see why the landlord, the plaintiff, should hi entitled to claim the entire rent from the defendant. In this view of the matter, we are of opinion that the plaintiff can recover from the defendant only the rent for one year, that is to say from Aswin 1305 to Aswin 1306, and that the rest of his claim cannot be maintained.
4. There was one other question raised between the parties in the Court below, namely, as to a certain deduction which the plaintiff allowed the defendant in respect of certain lands which the plaintiff held under the defendant. The deduction was allowed by the plaintiff in his plaint at the proportionate rate of Rs. 37-3 annas, taking the total amount of rent as Rs. 70. The defendant stated that the deduction should be at a higher figure. The Court below, however, has accepted the contention of the plaintiff as correct and has allowed the deduction as mentioned in the plaint. We think there is no just reason to question the propriety of the conclusion of the Subordinate Judge in this respect. The result is that the decree of the Court below will be modified so as to allow the plaintiff a decree only for one year's rent with cesses and interest. The parties will bear their own costs in proportion to their respective success and failure.