Richard Garth, C.J.
1. As the question in each of these cases is of a somewhat similar character, and seems to depend upon the same principle, and as on looking into the authorities there appears to be some difference of opinion in this Court upon the subject, we think it right to refer both cases to the decision of a Full Bench.
2. In Letters Patent Appeal No. 1713 of 1876 the suit was brought by an ijaradar against a ryot for a kabuliat at a certain rent. The plaintiff had taken an ijara for a term of years of a moiety of an undivided estate. The defendant was the tenant of a nunkur jote within this estate at a rental of Rs. 16-8, and it has been found that, for some years before the suit, he has been paying Rs. 8-4 separately to Ramanand and Anandomoyee, who were the owners of one moiety of the entire estate.
3. The lower Court held that, as he had thus paid a separate rent to the plaintiff's lessors, the plaintiff was entitled to sue him for a kabuliat, and decided accordingly; which decree was upheld by Mr. Justice White. The case of Ramanath Rakhit v. Chand Hari Bhuya (6 B.L.R., 356; s.c., 14 W.R., 432) is an authority in favour of that position; and the case of Saratsundari Debi v. Watson 2 B.L.R., A.C., 159 : S.C., 11 W.R., 25 seems opposed to it.
4. In the Letters Patent Appeal No. 2601 of 1876 the suit was brought by an ijaradar of a one-third share of an undivided estate to recover, at an enhanced rate, one-third of the rent of a tenure held by the defendant within that estate.
5. It was found that the tenant had for some time been paying his one-third share of rent separately to the plaintiff's lessors, and the Subordinate Judge hold that there was nothing to prevent the plaintiff from enhancing his share of the rent by a separate suit, inasmuch as his collections had been separate.
6. In special appeal we find that it was held by Kemp and E. Jackson, JJ.--Dookhee Ram Sircar v. Gowhur Mundul 10 W.R. 307 that a suit to enhance a separate share of the rent of an undivided estate will not lie. The suit should be to enhance the entire rent of the estate; see also Haradhun Gossamee v. Ram Nawaz Missery 17 W.R., 414, per Kemp and Glover, JJ.
7. The questions which we refer for the opinion of the Full Bench are:
1st.--Whether the ijaradar of a co-sharer of an undivided estate, who has made separate collections from the tenant of the whole estate in respect of his share, can sue to obtain a kabuliat at an enhanced rent for his share of the tenure, the other co-sharers not being made parties to the suit?
2nd.--Whether the ijaradar of a co-sharer of an entire tenure, who has for some time realised his rent separately in respect of his share, can sue to enhance the rent of that share separately without joining the other co-sharers of the tenure?
8. It was arranged that both these appeals should be argued together.
9. Baboo Tarinikant Bhuttacharji for the Appellant in the first suit.--The only case in favour of the contention that such a suit as this will lie is that of Ramanath Rakhit v. Chand Hari Bhuya 6 B.L.R., 356 : S.C., 14 W.R., 432, in which Paul, J., says, that he has no doubt that the proprietor of a fractional share of an undivided estate can sue for a kabuliat, his action being simply one intended to put upon paper a separate engagement and contract already existing between himself as landlord and the defendant as tenant. On the other hand, in Saratsundari Dabi v. Watson 2 B.L.R., A.C., 159 : S.C., 11 W.R., 25, it was decided that a person entitled to a fractional share of an undivided estate, though he receives a definite portion of the rent from the tenant or ryot, is not entitled to maintain a suit for a separate kabuliat in respect of such undivided share. The case of Udaya Charan Dhar v. Kali Tara Dasi 2 B.L.R., Ap., 52; s.c., 11 W.R., 393 is to the same effect. Under Section 20 of Beng. Act VIII of 1B69 if a ryot finds his land unprofitable he may relinquish it, but he must relinquish the whole, he cannot retain a part. Now the effect of a kabuliat would be to bind the tenant; he might be willing to relinquish, but he would be bound as to a part of the land by the kabuliat, and therefore could not take advantage of this section--Saroda Soonduree Debee v. Hazee Mahomed Mandul (5 W.R., Act X, Rul. 78). Another difficulty is that as there can be no suit for a kabuliat without a previous tender of a pottah, and as according to Section 2 of Beng. Act VIII of 1869 the boundaries of the land must be distinguished in the pottah, it would be impossible to follow the provisions of the section where the lands are joint and undivided.
10. As to the second question referred, it has been decided that a single co-sharer cannot bring a separate suit for his share of the rent, and that the rule applies with greater force to cases of enhancement: Bhyrub Mundul v. Gungaram Bonnerjee 12 B.L.R., 290, note; s.c., 17 W.R., 408, Haradhan Gossamee v. Ram Newaz Missery 12 B.L.R. 414, and Raj Chunder Mojoomdar v. Rajaram Gope 22 W.R., 385. So it has been decided that a suit by one of several joint proprietors to recover a certain proportion of rent, which he alleges is payable by the defendants in respect of lands occupied by them, will not lie unless the plaintiff either proves that the defendants have paid their rent to him separately, or proves an express agreement on their parts to pay to him separately. The early case of Mohammed Singh v. Mussammat Mughoy Chowdhrain 1 W.R., 253, in which it was held that an owner of a fractional share of an undivided estate as to whose share there is no doubt, can sue for his share of the rent, was expressly dissented from by Kemp and L. Section Jackson, JJ., in Ramjoy Singh v. Nagur Gazee 5 W.R. Act X, Rul., 68. The Full Bench case of Indar Chandra Dagar v. Bindabun Bihara 8 B.L.R., 251 : s.c. 15 W.R., F.B., 21 also shows that such a suit as this will not lie. [Garth, C.J.--The question is whether there has been a binding agreement between the parties. Suppose that instead of one co-sharer suing all had sued, could the tenant have said that there had been a misjoinder of parties?] The payment of rent to each of the co-sharers separately is presumptive but not conclusive proof that the original contract has been dissolved and a new contract substituted: Anoo Mundul v. Shaikh Kamaloodeen 1 C.L.R., 248, Indar Chandra Dugat v. Bindabun Binhra 8 B.L.R., 251; s.C., 15 W.R., F.B., 21, Even if a tenant who has a kabuliat holds over after his term has expired, he cannot be sued by each of the co-sharers separately: Tara Chund Bonnejee v. Ameer Mundul 22 W.R. 394.
11. Baboo Amerendronath Chatterjee, for Respondent.--The question is whether a suit will lie by a co-sharer for a fractional share of rent. There is no doubt according to the decisions that where rent is paid separately, one co-sharer can sue for his share without joining the other co-sharers. Now, if a suit will lie for rent, a suit will equally lie for a kabuliat. Upon that point there are no decisions besides the case of Ramanath Rakhit v. Chand Hari Bhuya 6 B.L.R., 356 : s.c., 14 W.R., 432. It is for the advantage of the peasantry in this country that suits for kabuliats should be encouraged. Section 10 of Beng. Act VIII of 1869 provides that every person who grants a pottah shall be entitled to receive a kabuliat. If the tenant has been paying rent separately, what hardship is there if he is asked to execute a kabuliat. [Garth, C.J.--Is it not a contract in the future?] He can relinquish. (Ainslie, J.--Yes, by giving up the whole of his tenure.] The landlords cannot compel the tenant to continue his occupation: Hills v. Ishore Ghose W.R., Spl. No. 131. The possession of the ryot is not altered; he has been paying rent under an oral agreement which is reduced into writing by his taking a kabuliat. The case of Jagadamba Dasi v. Haran Chundra Dutt 6 B.L.R., 526; s.c., 10 W.R., 108 shows that where co-sharers are not interested they need not be joined as parties. If a tenant executes a kabuliat, he can relinquish the whole land; if he does not execute he cannot relinquish part. So that if he gives a kabuliat to one shareholder, ho is not prejudiced.
12. Babu Umakali Mookerji for the Appellants in the second suit in reply.
13. The opinion of the Full Bench was delivered by
14. We think that both questions referred to us should be answered in the negative. They both depend upon similar considerations, and must be governed by the same principles.
15. We understand that in both cases the entire tenure was originally held by the tenant under all the co-sharers at an entire rent; but that, by some arrangement amongst themselves, consented to by the co-sharers on the one hand and by the tenant on the other, the latter had been in the habit of paying a portion of the rent of each co-sharer in respect of his separate share.
16. Such arrangements are by no means unusual, and they may be evidenced either by direct proof, or by usage from which their existence may be presumed. But in either case they are perfectly consistent with the continuance of the original lease of the entire tenure; and the same consent of all the parties, by which the arrangement was originally created, may at any time put an end to it.
17. So long as it continues, however, it has been constantly held in this Court, and must be considered now as well-established law, that each co-sharer may bring a separate suit against the tenant for his share of the rent. But in the absence of such an arrangement, it is equally clear that no such suit can be maintained. See Ganga Narayan Das v. Saroda Mohun Roy Chowdhry 3 B.L.R., A.C., 230; S. C., 12 W.R., 30, Sree Misser v. Crowdy 15 W.R., 243, Dinobundhoo Coondoo Chowdry v. Dinonath Mookerjee 19 W.R., 168 and Mussamat Lalun v. Hemraj Singh 20 W.R., 76.
18. But a suit for a kabuliat under such circumstances by one co-sharer against the tenant is a very different thing from a suit for arrears of rent. The separate suit for arrears, as we have already said, is perfectly consistent with the continued existence of the original lease of the tenure. A kabuliat, by which an entirely new and separate tenancy is created, is obviously inconsistent with it. A suit for arrears deals only with the past. A suit for a kabuliat binds the tenant in the future. In fact it is binding upon both parties, because the co-sharer who obtains a kabuliat is bound at the request of the tenant to give him a pottah upon the same terms, and the grant and acceptance of a binding lease of the separate share cannot exist contemporaneously with the original lease of the entire jote. This is quite in accordance with the view of Norman, Acting C.J., and Dwarkanath Mitter, J., in the Full Bench case of Indar Chandra Dugar v. Bindabum Bihara 15 W.R., 21, in which Mr. Justice Mitter points out the distinction between a mere separate payment of rent to a co-sharer, and a claim for a kabuliat as to the separate share. (See Saratsundari Debi v. Watson (2 B.L.R., A.C., 159; S.C.., 11 W.R., 25.
19. The only authority to the contrary appears to be the decision Bayley and Paul, JJ., the case of Ramanath Rakhit v. Chand Hari Bhuya 6 B.L.R., 356; S.C., 14 W.R., 432); but it is not clear from that case, whether the tenure had ever been held at an entire rent; and at any rate the distinction between a separate payment of rent by arrangement and a binding lease of separate share does not seem to have been considered.
20. Of course if the original lease of the entire tenure is cancelled, or put an end to by the consent of all the parties, the co-sharers and the tenant are at liberty to enter into any fresh contracts which the law allows; but no Court of Justice ought to presume such a cancellation or determination of the lease, from the mere fact of a separate payment of rent to one or more of the co-sharers.
21. The right of one co-sharer to enhance the rent of his share separately must be governed by the same principles as his right to a kabuliat.
22. The Rent Law in our opinion does not contemplate the enhancement of a part of an entire rent; and the enhancement of the rent of a separate share is inconsistent with the continuance of the lease of the entire tenure.
23. In each of the special appeals, therefore, 1713 and 2601, the judgment of the lower Appellate Court and of the High Court will ho set aside, and the plaintiffs suit in each case will be dismissed, with costs in all the Courts.