Banerjee and Rampini, JJ.
1. The only question raised in this appeal, which arises out of a suit for arrears of rent, is whether the lower Appellate Court was right in giving effect to the statutory presumption under Section 56, Clause 4, of the Bengal Tenancy Act, in favour of the defendants, respondents. The learned Vakil for the appellants contends that the lower Appellate Court was wrong in giving effect to that presumption for two reasons: first 'because the receip(sic)
2. (Ex. A), which is made the basis of the presumption, was not signed by all the landlords, and the party by whom it was signed was not authorised in writing to sign it on behalf of all the landlords; and, secondly, because, even if verbal authority was sufficient, the lower Appellate Court has not affirmatively found that Gopinath was verbally authorised to sign the receipt for all the landlords.
3. We are of opinion that the first ground upon which the learned Vakil for the appellant bases his contention is not tenable. The case comes under Section 188, which does not require an agent to be authorised in writing to act on behalf of all the landlords. All that that section requires is that the agent should be authorized, and such authority may be given, in our opinion, verbally or in writing. It is true that Sub-section (3) of Section 187 enacts that 'every document required by this Act to be signed or certified by a landlord, except an instrument appointing or authorising an agent, may be signed or certified by an agent of the landlord authorised in writing in that behalf;' but the case in our opinion comes more properly under Section 188, as this is a case of several joint landlords and the receipt is signed by one of them.
4. The second ground urged on behalf of the appellants is, however, in our opinion, entitled to succeed. The receipt (Ex. A), before it can form the basis of any presumption under Clause (4), Section 56, must be shown to be a receipt granted by or on behalf of all the landlords; in other words, in a case like this, where there are several joint landlords, it must be shown that the person by whom the receipt was signed was authorised by them all, either verbally or in writing. Upon this question of authority, all that the learned Judge says is this: 'Such an authority need not be in writing, and there is nothing to show that he was not verbally authorised; at any rate, his conduct might well have led defendants to believe him to be so authorised.' We do not think that that is sufficient. It is not enough to say that it is not shown that Gobinath was not verbally authorized, or that the defendants had reason to believe that he was so authorised. It was necessary for the Court below, before giving effect to the presumption under Section 56, affirmatively to find that Gopinath was verbally authorised; and as it has not come to any such finding, we must hold that it was wrong in giving effect to the presumption in question. The learned Counsel for the respondents contended that, though there might not have been sufficient ground for raising the statutory presumption, there was here a presumption of fact raised by the lower Appellate Court upon the finding arrived at by it, that the amount that was due from the defendants had been paid off. No doubt, if there had been any such finding, or if the lower Appellate Court had said that upon the whole of the evidence adduced in the case it drew the inference as an inference of fact, that all that was due from the defendants had been paid off, that would have been a perfectly correct decision. But though the learned Judge below does refer to the evidence upon certain points, the presumption upon which he relies is not any presumption of fact, but clearly the presumption of law under Section 56.
5. The case must, therefore, go back to the lower Appellate Court, in order that it may determine the two following points: The first is, whether Gopinath was verbally authorised to sign the receipt (Ex. A) for all the landlords. If this question is answered in the affirmative, the decree will be in favour of the defendants, as it has been made by the lower Appellate Court. If, on the other hand, this question is answered in the negative, then the lower Appellate Court will have to determine the second of the two points for which we remand the case, viz., whether upon the evidence on the record, and bearing in mind that the burden of proof upon this question of payment is on the defendants, any presumption of fact arises in favour of their defence that all that was due from them had been paid off. With these directions we send the case back to the lower Appellate Court for final disposal. The costs will abide the result.