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Akshoy Kumar Mitra Vs. Gopal Kamini Debi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal1010
AppellantAkshoy Kumar Mitra
RespondentGopal Kamini Debi
Cases ReferredPramoda Nath Roy v. Ramoni Kant Roy
Excerpt:
landlord and tenant - right of co-sharer landlords to collect rent jointly--bengal tenancy act (viii of 1885) section 65. - .....him for the whole rent. the defence is that the plaintiffs having collected their shares of the rent separately for many years cannot now sue jointly. the lower courts have given effect to this plea of the defendant and have dismissed the suit.2. the plaintiffs appeal. on their behalf it has been contended that they are entitled to sue jointly, if they please, and that there is nothing from which can be inferred an implied contract (for there is admittedly no express contract) never to collect the rent otherwise than separately. the appellant's pleader relies on (a) the dictum of sir 11. garth in gani mahomed v. moran (1878) i.l.r. 4 calc. 96, that an arrangement by which each co-sharer collects his share of the rent separately is quite consistent with the continuance of the original.....
Judgment:

Rampini, J.

1. The plaintiffs in this case are co-sharer landlords. They have each an 8 annas share of the landlord's interest in the holding. The defendant No. 3 is the tenant of the whole holding, having purchased the interests of the defendants 1 and 2, the old tenants. The plaintiffs have hitherto been collecting the rent of their shares separately. Now that the holding is held by one tenant, they jointly sue him for the whole rent. The defence is that the plaintiffs having collected their shares of the rent separately for many years cannot now sue jointly. The lower Courts have given effect to this plea of the defendant and have dismissed the suit.

2. The plaintiffs appeal. On their behalf it has been contended that they are entitled to sue jointly, if they please, and that there is nothing from which can be inferred an implied contract (for there is admittedly no express contract) never to collect the rent otherwise than separately. The appellant's pleader relies on (a) the dictum of Sir 11. Garth in Gani Mahomed v. Moran (1878) I.L.R. 4 Calc. 96, that an arrangement by which each co-sharer collects his share of the rent separately is quite consistent with the continuance of the original lease of the whole tenure, which was approved of in Gopal Chunder Dass v. Umesh Narain Chowdhury (1890) I.L.R. 17 Calc. 695 : (1904) 9 C.W.N. 34 (b) on a dictum of Mr. Justice Ghose in Pramoda Nath Roy y. Ramoni Kant Roy , in which that learned Judge has said: 'No doubt the original lease has not been put an end to by the arrangement that has been come to between the parties as to separate payment of rent, and, if the co-sharers agree, they might jointly maintain a suit for recovery of the whole root; (c) on the judgment of Mr. Justice Pratt in Shyatna Charan Bhuttacharjee v. Obhoy Kumar Mitter (1905) 10 C.W.N. 787 in which, in exactly similar circumstances, it was held that a co-sharer landlord could sue jointly for the whole of the rent, and (d) the case of Girish Chunder Mukhopadhyaya v. Chhatradhar Ghose (1905) 3 C.L.J. 379 in which it has been ruled (hat co-sharer landlords, who have collected their shares of the rent separately, are not bound to continue to do so, unless they have given their consent in writing under Section 88 of the Bengal Tenancy Act.

3. On the other hand, the respondent's pleader relies on a passage in Mr. Justice Brett's judgment in Pramada Nath Roy v. Ramoni Kant Roy (1904) 9 C.W.N. 34 in which it has been said: 'The agreement was one made between the body of landlords on one side and the tenants on the other, and one out of several persons contracting on the one side cannot alone cancel or avoid the agreement. The agreement can only be rescinded by the contracting parties, that is to say, the whole body of the landlords, who jointly form one of the parties on one side and the tenants on the ether, and one of the landlords without the consent of the rest is not entitled to rescind it.' The respondent's pleader further calls attention to the fact noticed in the first Court's judgment that there has been an apportionment of rent in the plaintiff's books, but he contends that this was not such an apportionment as amounts to a subdivision of the tenancy.

4. It is doubtless an elementary principle of law that a contract entered into by two parties cannot be rescinded by one of the parties alone. But the question is--'Is there any reason to infer in this case that, when the co-sharer landlords began to collect the rent separately, there was an agreement that this arrangement was to last for ever and that the landlords were to continue to collect the rent separately for all time and never again to collect it jointly?' There would seem to be no circumstances from which it can be inferred that such an agreement was ever entered into by the co-sharer landlords and tenants in this case. There were originally two landlords and two tenants. It was apparently convenient to the landlords that each should collect his share of the rent separately and this was done. But if there was no further agreement that the arrangement was to be a perpetual one, of which there is no evidence, then I do not see why the plaintiffs should 'not now jointly sue the single tenant for the rent. Mr. Justice Pratt's judgment in Shyam Charan Bhutta-charjee v. Obhoy Kumar Mitier (1905) 10 C.W.N. 787 is direct authority for its being open to co-sharer landlords to do so. The dicta of Sir Richard Garth and Mr. Justice Ghose above alluded to, and the case of Grish Chunder Mukhopadhya v. Chharadhar Ghose (1905) 3 C.L.J. 379 support this view. The case of Pramoda Nath Roy v. Ramoni Kant Roy (1904) 9 C.W.N. 34 is not in point, .for in that case one co-sharer landlord sued for the whole of the rent, making his other co-sharers parties defendant. The facts of the case are different. But the remarks of Mr. Justice Brett in that case in no way conflict with the view I would take of this case. If there had been in this case a contract entered into between the landloids and tenants that the separate collection of the rent was to go on for ever, or until both parties agreed that it should cease, the plaintiffs would of course be unable to sue jointly at their pleasure, but there would hare been no reason to suppose that there was any such agreement. The equities of the case are all in favour of the plaintiffs. Unless they can sue jointly, they cannot obtain a decree in execution of which the tenancy can be sold. If the tenancy be held to have been subdivided, each co-sharer landlord suing separately can obtain such a decree. But the object of the defendants is to make out that the holding has not been subdivided and so each plaintiff cannot obtain such a decree as can be executed so as to pass the holding, and at the same time to prevent the plaintiffs suing jointly so as to obtain a decree that can be executed so as to obtain such a result. If the defendant were successful in these tactics, the landlords would never be able either jointly or severally to obtain a decreee in execution of which they could sell the tenancy, and they would accordingly lose their lien on the land for their rent and the object of Section 65 of the Bengal Tenancy Act would be frustrated. I would therefore decree the appeal with costs.

Woodroffe, J.

5. I agree.


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