1. In my opinion the view taken by both the Courts below is correct. I read the words 'his tenure or holding shall be liable to sale in execution of a decree for the rent thereof,' in Section 65 of the Bengal Tenancy Act as pre-supposing a suit and a decree under the Act, that is, a decree made in a suit in which all the landlord co-sharers are plaintiffs and not merely some of them, that is fractional co-sharers. This view gains support from Section 188 of the Act. Here the claim is for the rent of four years of which the rent of the first two years was properly due and payable to the plaintiffs as the 16 annas landlords, but as regards the last two years' rent the plaintiffs were fractional landlords only. At the date of the institution of the suit, the plaintiffs were fractional co-sharers only.
2. We are invited to split up the decree and to say that, as regards the first two years' rent, it was a decree at the instance of all the landlords and therefore one in which the tenure could be sold. But this is not the decree; it is a decree for the rent of all the four years, and made in a suit in which all the co-sharer landlords are not plaintiffs. The fractional co-sharer landlords have no right to sell the tenure for the rent due for the last two years, and we cannot split up the decree in the manner suggested by the appellant. We can only look at the decree as a whole, and similarly at the suit in which it was made. The appeal fails aud must be dismissed with costs.
3. I am of the same opinion. The question raised in this case may be shortly stated thus: Whether the sale of a tenure in execution of a decree for rent obtained by certain persons, who did not constitute the entire body of landlords at the date of the suit and of the decree and who were not the entire body of landlords also at the date at which part of the claim for which the rent suit was brought accrued duo, would pass the entire tenure, or merely the right, title and interest of the judgment-debtors in the tenure at the date of the sale.
4. The Court of Appeal below has held that the sale would pass only the right, title and interest of the judgment-debtors at the date of the sale, and the contention on behalf of the plaintiff appellant is that this decision is wrong, because although the decree-holders did not constititute the entire body of landlords at the date of the suit and of the decree, and although a part of the claim for rent was for rent that accrued due after they had ceased to constitute the entire body of landlords, yet, when a part of the claim was for rent that accrued due to them as forming the entire body of landlords before a portion of their interest in the superior tenure or estate had passed to others, so far as that portion of the claim went, it constituted a first charge on the tenure under Section 65 of the Bengal Tenancy Act, and a sale of the tenure in satisfaction of that part of the claim could be obtained under that Act. No authority is cited in support of this contention, hut it is argued that, if a part of the claim for rent constitute a first charge on the tenure, no subsequent transfer of the landlords' interest in part or in whole can extinguish or affect such charge and the landlord would be entitled to enforce it by sale of the tenure.
5. I am unable to accept this argument as sound. Section 65 of the Bengal Tenancy Act no doubt Says that the rent shall be a first charge on the tenure, but it says that in connection with another rule which is enacted in these words, namely that 'the tenure or holding shall be liable to sale in execution of a decree for the rent thereof'; and that means a decree for rent under, or in accordance with the Act.
6. Now Section 188 of the Act requires that when two or more persons are joint landlords, anything which the landlord is, under the Act, required or authorised to do, must be done by both or all of those persons acting together, or by an agent authorised to act on behalf of both or all of them; and it has been held in a series of cases of which I need only notice Beni Madhub Roy v. Jaod Ali Sircar (1890), which was decided by a full Bench, that the special provisions of the Bengal Tenancy Act, with reference to rent decrees and sales of tenures in execution of such decrees, apply only to decrees obtained in accordance with Section 188 of the Act.
7. In the present case, the decree was not obtained in accordance with the provisions of the last-mentioned section. It was argued that, although the entire decree might not have been so obtained, the part of the decree, which related to so much of the claim, as had accrued due to the decree-holders, when they formed the entire body of landlords, may be taken as having been obtained in accordance with s. 188 of the Tenancy Act.
8. There are two answers to this argument. In the first place, the decree cannot be split up into two parts in this manner. The sale that took place was in execution of the decree taken as a whole, and, if it was bad as regards part of the decree, as it is impossible to divide the properties sold into two parts, one covered by the sale in satisfaction of one part of the claim, and the other covered by the sale in satisfaction of the other part, the whole sale must be held to have been a sale under the ordinary law, that is the Code of Civil Procedure and not carrying with it any of the incidents of a sale under the Bengal Tenancy Act.
9. But there is another answer to this contention. Whatever might have been the nature of the claim, if at the time the suit was brought and decree obtained and enforced by sale of the tenure, the decree holders did not constitute the entire body of landlords, the sale could not be treated as a sale of a tenure in execution of a rent decree under the Bengal Tenancy Act. The view I take is in accordance with that taken by this Court in the case of Hem Chunder Bhunja v. Mon Mohini Dasi (1894) 3 C. W. N. 604.