1. The property in suit which appertains to Taluk; Durga Ram Mazumdar was sold in execution of a decree for rent obtained by the landlord, the Maharaja of Tipperah, against, amongst others, Minnatali, defendant No. 1, as representing his father Kamarali who had a share in the taluk. Kamarali had executed a wakfnamah in 1800 B.S. by which he appointed his two sons Minnatali and Abdul Gani, the second defendant, as Mutwallis. The plaintiffs as purchasers in the said execution sale brought this suit for recovery of possession of the share of the taluk which was owned by Kamarali against all the heirs of Kamarali. Defendant No. 2 contended that the rent decree obtained by the Maharaja of Tipperah and the sale consequent upon it did not affect the wakf estate. On these pleadings two issues were raised: (1) Had the landlord notice of the wakfnama? 63 Ind Cas. 706 : 26 C.W.N. 1 38 Did defendant No. 1 represent the defendants or mutwallis in the landlord's sherista? Both these issues were found against the plaintiffs by the learned Munsif who tried the case in the first instance. On appeal by the plaintiffs the lower Appellate Court has found that the landlord had no notice of wakf and that Minnatali represented the wakf estate and defendant No. 2 in the landlords' sherista and hence the rent-decree and the auction-sale passed the wakf estate and whatever interests defendant No. 2 had in it.
2. Defendant No. 2 appeals to this Court and it is contended on his behalf that the learned District Judge has misread the whole of the evidence and his findings are based upon such misreading of the evidence. We have gone through the evidence in the case and we find that the contention of the appellant is correct. The learned Judge says: 'There is nothing to show that the landlord was aware of this wakf;' we find that defendant No. 2 swears that the landlord was aware of the wakf and there is no evidence contradicting this statement. The learned Judge has in several places in his judgment remarked that defendant No. 2 has deposed that rent was paid marfat defendant No. 1, Minnatali, and be adds that, such being the case, 'it is clear that Minnatali after the death of his father Kamarali represented all the heirs of Kamarali and as such representative paid the rent:' then, again, 'This marfat according to defendant No. 2 was entered in the dakhilas. That shows by implication consent of defendant No. 2 to be represented by defendant No. 1, Defendant No. 2 as un registered tenant is bound by the proceeding against the registered tenant, i.e. defendant No. 1.' All these findings are based on the supposition that defendant No. 2 has stated in his examination in Court that the rent was paid through Minnatali as marfatdar and that dakhilas wore issued in the name of Minnatali as such. Whereas, on reading the evidence, it is clear that he says that the rent was paid by defendant No. 1 and defendant No. 2 jointly as they were joint mutwallis, and he adds: 'In the dakhilas we were, described only as marfatdars, that was because we were the only co-sharers of the taluk.' This is exactly contrary to what the learned Judge thinks defendant No. 2 deposed in Court. There is no evidence, as the learned Munsif observes, on the plaintiffs' side to show that defendant No. 1 represented defendant No. 2 or the wakf estate in the landlord's sherista. The suit against one of the mutwallis is, therefore, bad [See the case of Abdul Rab Chowdhury v. Eggar 35 C. 182 : 12 C.W.N. 160 Accepting the findings of the Munsif that defendant No. 1 did not represent defendant No. 2 or wakf estate in the landlord's sherista, we cannot but hold that the rent decree obtained by the landlord did not bind either defendant No. 2 or the wakf estate and that on that date defendant NO. 1, Minnatali, had no interest which could pass by the decree obtained against him in his personal capacity.
3. It is now settled beyond dispute that, on the death of a tenure holder, if a decree is obtained for rent against some of his heirs the interest of those heirs that are not parties to the decree will not be affected either by the decree or by sale under that decree Faizannessa v. Gaganeswari 63 Ind Cas. 706 : 26 C.W.N. 1 38].
4. We accordingly set aside the decree of the Court of Appeal below and restore that of the Court of first instance. The appellant will get his costs both in this Court and in the Court of Appeal below.