Nasim Ali, J.
1. The point for determination in this case is whether the Civil Court has power under Section 88, Clause (2), Ben. Ten. Act, to apportion the rent of a putni tenure amongst the cosharer putnidars according to their share. The Courts below have come to the conclusion that Section 88, Clause (2) applies to putni tenures. Section 88, Clause (2) is in these terms:
The Civil Court may, on an application made on that behalf by the tenant within six months from the date of notice to the landlord hereinafter provided, by an order in writing direct such division of the tenancy or distribution of rent as it considers fair and equitable or annul or modify the division or distribution made by the landlord, if considered unfair and inequitable.
2. Then follow certain provisions which are not material for the purpose of the present case. Section 195, Clause (e), Ben. Ten. Act, so far as is material for the purpose of the present case runs as follows : 'Nothing in this Act shall affect any enactment relating to putnitenures in so far as it relates to those tenures.' The question therefore arises as to whether Section 88, Clause (2), Ben. Ten. Act, affects any provision contained in the Putni Regulations. Section 6 of the Putni Regulations provides:
It shall be competent to the zamindar or other superior to refuse the registry of any transfer, until the fee above stipulated be paid and until substantial security to the amount specified be tendered and accepted.
Provided however that if the security tendered by any purchaser or transferee, should not be approved by the zamindar, and the party tendering it shall be dissatisfied with such rejection, he shall be competent to appeal therefrom by petition or common motion in the Civil Court of the district, which authority, if satisfied of the sufficiency of the security tendered, shall issue an injunction on the zemindar to accept it, and give effect to the transfer without delay. It is hereby provided that the rules of this and of the preceding Section shall not be held to apply to transfers of any fractional portion of a putni taluk, nor to any alienation other than of the entire interest, for no apportionment or the zemindar's reserved rent can be allow-ed to stand good, unless made under his special sanction.
3. The last clause of this Section definitely lays down that the rent reserved by the putni lease cannot be apportioned without the special sanction of the zemindar. If Section 88, Clause (2) be made applicable to putni tenures, it would affect the last portion of Section 6 of the Putni Regulations. I am therefore of opinion, that under Section 88, Clause (2) the Civil Court has no power to order distribution or apportionment of the rent of a putni tenure. In the case before us the learned Subordinate Judge has also observed that the Putni Regulations do not apply to the tenure in question as it is not a putni within the meaning of that Regulation. The putni lease was not before the Lower Appellate Court. The learned Advocate for the zemindar petitioner however produced before us the original putni kabuliyat. It is clear from the terms of that kabuliyat that the tenure created by it is a putni as contemplated by Regn. 8 of 1819. The Courts below were, therefore wrong in allowing the cosharer putnidar's application for apportionment of the putni rent. The result, therefore is that this Rule is made absolute, the orders of the Courts below are set aside and the application of the opposite party putnidar for distribution of the putni rent under Section 8 of the Putni Regulations is dismissed. There will be no order for costs in this Rule.
Narsing Rau, J.
4. I agree. Besides the provisions of Section 6 of the Putni Taluq Regulation, there is another relevant provision in Section 11 of the Regulation which, after declaring that a putni taluk, when sold for arrears of rent due on account of it, passes free of all incumbrances that may have accrued upon it by act of the defaulting proprietor, goes on to state:
No transfer by sale, gift or otherwise, no mortgage or other limited assignment shall be permitted to bar the indefeasible right of the zemindar to hold the tenure of his creation answerable in the state in which he created it, for the rent, which is in fact his reserved property in the tenure, except the transfer or assignment should have been made with a condition to that effect, under express authority obtained from such zemindar.
5. There is thus a clear declaration in this provision that the zemindar haa an indefeasible right to hold a putni tenure answerable in the state in which he created it for the rent of the tenure. The distribution of the rent of a putni taluq amongst the various cosharer-holders would be plainly repugnant to this provision of the regulation unless made with the zemindar's sanction. The effect of such a distribution is to apportion the liability for the rent amongst the various cosharer tenants, so that the tenure in the integral state in which it was created would no longer be answerable for its entire rent. It has been contended on the other side that the decision in Sreenath Chunder v. Mahesh Chander (1878) 1 C.L.R. 453, which is a decision of the year 1878 when the Putni Taluq Regulation was in force but not the Bengal Tenancy Act, shows that the rent of a putni tenure was even then regarded as divisible and therefore it is argued, the apportionment of the rent under Section 88, Clause (2), Ben. Ten. Act cannot be said to affect the regulation. An examination of the decision in question shows however that that case related to the apportionment, as between the cosharer zamindars, of the right to receive the putni rent, and not to an apportionment, as between the cosharer putnidars of the liability to pay the putni rent. It is only the latter type of apportionment that is in question in the present case and that is repugnant to the declaration in Sections 6 and 11 of the Regulation. The decision is therefore of no assistance to the other side.