1. This is the defendant's appeal from the judgment, and decree of my learned brother Mr. Justice Majumdar affirming a decision of the lower appellate Court.
2. The plaintiff is one of several co-owners of four revenue-paying estates with separate touzi numbers. It appears that the whole of the area of these four touzis has been settled in talukdari right with the defendants for a consolidated jama of Rs. 179-2-8 gandas. In my judgment, the circumstance that the tenure is coextensive with the whole area of the four touzis is of no importance for the present purpose, but it is a fact, as I understand, that the whole of the land comprised in the four touzis is comprised in this tenure at the consolidated rent of Rs. 179-2-8 gandas.
3. The facts are these: that the plaintiff is registered in the colleetorate as having in three of the touzis a share of 4 annas 8 gandas and in one of the touzis aa having a share of 19-1/4 gandas not quite one anna. The suit was brought on the footing that the plaintiff had an equal share in all the four, that being put as 4 annas 12 gandas. In point of fact the share of the plaintiff is now admitted to have been wrongly stated in the plaint and the facts are as I have given. Upon that footing the plaintiff bringing his suit for rent is met with the provisions of Section 78, Land Registration Act (VII B.C. of 1876.) It is said that it is wrong to give judgment for the amount claimed by the plaintiff because under that section a tenant is entitled to say that ho will pay no greater share of the rent to a co-sharer landlord than the landlord is registered in the collectorate as having.
4. Mr. Justice Majumdar has disagreed with the figure found by the learned Munsiff and has criticized his calculation in a way which seems to me to be sound, that is to say, he has shown that the Munsif's calculation is based upon an assumption that one can treat each of the touzis as of equal value for the purpose of apportioning rent., On the question whether section 78 applies to a case like this Mr. Justice Majumdar has followed the decision of Mr. Justice Mookerjee and Justice Teunon in Rakhal Das Adhyay v. Prodyot Kumar Tagore (1910) 15 C.L.J. 308 . He has held that it is not right to apply Section 78 to any case except the case of a holding under one single estate or revenue-free property. The case before Mr. Justice Mookerjee was a case where the plaintiff was a co-sharer landlord, the tenancy lands comprised lands in more than one touzi and the plaintiff was interested as co-sharer in one or more touzis but not in all. The Court disposing of that case gives as its opinion that a close examination of the section makes it reasonably plain that it has no application o cases where the land in possession of he tenant is comprised in more than one state; and again that the proprietor mentioned in the section is the proprietor of one estate within the ambit of which the lands in possession of the tenants are comprised. It has been pointed out to us that that reasoning goes further than was necessary for the decision of that case because, on the facts of that case, it was found to be one where the lands in occupation of the tenants were comprised, in a number of estates in one or more of which alone the plaintiff was interested, In my judgment, the present case, where the plaintiff is interested in all the touzis but not to the same extent in each, is just as strong a case on the facts for the purpose of excluding Section 78 as the case before Mr. Justice Mookerjee. In both cases Section 78 is inapplicable because it cannot be applied. It is not possible in this case to say, without assuming that each of those touzis is of the same value for purposes of apportioning rent, what is the share that these tenants are bound to pay; and in my judgment, therefore, whether that case went beyond what was necessary or not the present case is just as strong as that in favour of the landlord. I think, however, that the proposition that Section 78 has no application to cases where the land in possession of the tenant is comprised in more than one estate is a sound proposition, particularly as regards the second part of Section 78. It is quite true that Section 78 is enacted to compel peopel or to give them an adequate motive to obey the provisions which require registration to be made of these interests in land. Section 78 is controlled by Section 81 which contains a saving for the conditions of any written contract, but it is a section in aid of Section 38.
5. It is quite true that one might be disposed to argue that for that reason Section 78 must apply to all cases, a revenue-paying estate or revenue-free property and that as nothing is intended to be left uncovered under Section 38 so nothing is left to be uncovered or out of the reach of Section 78. That, however, is not, I think, a valid argument. Section 78 gives a certain sanction inducing people to make sure to register their interests, but it may well be that the (legislature has thought it sufficient sanction if in. all cases where there are tenancies confined to one revenue-paying estate the proprietor is apt to lose what he does not register. Prom the nature of the case it could not well go further without creating difficulties. It does not follow that the sanction will hit every case because the intention is to require a complete registration.
6. In my judgment, in this case the learned Judge has rightly decided that Section 78 was of no avail to the defendants. Had it been, I think the result of the case would have been different, because no estoppel would prevail against the statute. But, in my judgment, the estoppel by the statute not being shown, there is in the rest of the case no difficulty in holding that the rent which the defendants have been in the habit of paying for many years is really due as between the plaintiff on the one hand and the defendants on the other. I think, therefore, that the appeal should be dismissed with costs.
7. I agree.