Narsing Rau, J.
1. This is an appeal under Section 15, Letters Patent, from a decision of Jack J. The plaintiff (in which term I include his predecessor-in-interest) brought a suit in the Court of the Second Munsif of Barisal claiming malikana for the years 1336 to 1339 B.S. in respect of resumed estate No. 5229 of the Bakargunj Colleetorate. It appears that the plaintiff, the defendants and certain other persons were cosharer proprietors of the above estate. The plaintiff's case was that the defendants alone took settlement of the above estate from the Collector in 1335 B.S. and were therefore bound presumably under the Bengal Land Revenue Settlement Regulation (Regulation 7 of 1822) or by contract, to pay malikana to the plaintiff. The Munsif dismissed the suit. His decision was affirmed on appeal by the Additional District Judge. On further appeal to the High Court Jack, J. reversed these decisions and decreed the suit. This is now an appeal from Jack J.'s decision. All the Courts have found that the settlement of the estate was made under Section 10 of the above Regulation, the only difference being as to the precise effect of the settlement.
2. The relevant clauses are Clauses 3, 4, 5, 6 and 8 of Section 10. Clause 3 of the Section provides that where two or more persons may possess a joint property in any mahal the Collector may make a joint settlement with the parties collectively or a majority of them, or with an agent appointed by them, or a majority of them, or to select one or more of them to undertake the management of the mahal as sadar malguzars, due advertence being had to the wishes of the coparceners of the past custom of the village or villages comprised in the mahal. Clause 4 provides that if it is determined to make a joint settlement for any mahal as aforesaid, the Collector shall give notice of his intention by written proclamation requiring all the persons possessing a joint property in the mahal to attend either in person or by representative. 01. 5 provides that if any person when summoned as above shall refuse or neglect or omit to attend either in person or by representative such person or persons shall be held to be bound by the decision of the majority of those who may attend, in agreeing or disagreeing to the jama and his or their interests and estate shall unless otherwise specially allowed, be held responsible for the Government revenue and be liable to sale in the event of any arrear accruing on account of the settlement. Clause 6 provided that if any person shall attend and shall object to the proposed jama, then if a settlement be made with the other parties present the objecting parties shall be left in the enjoyment of the same rights and interests as they would enjoy in the event of the mahal being framed or held khas. This last clause must be read with Section 5 of the Regulation which states that the proprietors of estates let in farm or held khas shall be entitled to receive malikana. Clause 8 of Section 10 has reference to the last part of the third clause and provides that when it is determined to make a settlement of a mahalt with one or more of the parceners selected to manage, collect and account for the public revenue as sadar malguzars, then the interests of the nonengaging parceners shall not be held answerable for the default of the sadar malguzars save and except in so far as may be specially provided.
3. In the present ease it has been found or accepted by all the Courts that there was a notice issued under Clause 4 of Section 10 summoning all the co-proprietors to attend before the Collector. Apparently the plaintiff did not attend and only the defendants did. It seems clear therefore that the resulting position was that contemplated in Clause 5 of Section 10. The absent party is bound by the decision of the majority of those present and no question of malikana arises. If the plaintiff wished to stand out of the settlement and to preserve his right to malikana, he ought to have appeared and objected and thereupon the position would have been that contemplated in Clause 6 of Section 10. Not having appeared he was bound by the settlement made, with those who did attend, as observed by Suhrawardy J. at pp. 1237, 1238 in Mahendra Narayan Roy v. Abdul Gafur : AIR1932Cal49 .
4. It is contended on behalf of the respondents that this was not a case of a joint settlement at all but a case where under the last part of Clause 3 of Section 10 one or more of the joint proprietors uudertook the management of the mahal as sadar malguzars. Accordingly it is said, the position is that contemplated in Clause 8 of Section 10. The flaw in this argument is that if so, there was no need for the issue of a notice under Clause 4 of Section 10. Notice is necessary only when a joint settlement is contemplated and such a notice was, as has been found by all the Courts, actually issued in the present case. It is true that the agreement executed by the defendants does not in terms purport to be a joint settlement on behalf of the proprietors but it does purport to be a maliki settlement, a term sufficient to distinguish it from a malguzari settlement of the kind contemplated in the last part of Clause 3 of Section 10. The other point raised by the respondents arises out of Clause 2 of the agreement executed by the defendants which runs as follows:
I shall respect all the rights of all classes of tenants, village chiefs and other persons which are recorded in the papers relating to this settlement.
5. This clause, it is said, must be read with the dowl Ex. 2 where, in the column showing the amount assessed as land revenue, a deduction of 30 per cent, from the gross assets has been made on account of 'mali-kana etc.' It is difficult to see how a vague entry of this kind, which does not show what sum was to be paid as malikana or to whom, if indeed any such payment by the executant was contemplated at all, creates a right in favour of the plaintiff. The explanation of the entry in the dowl may well be what the Munsif has suggested in his judgment, namely:
It is however evidence that in case of a settlement in favour o the strangers or farmers, an allowance of 10 per cent, as malikana is to be paid to the proprietors. When the proprietors themselves take the settlement it is just and equitable that they should get an additional deduction of 10 per cent. It may be that in case of malguzari settlement the usual deduction is 20 per cent. But it comes up to 30 percent., when the additional allowance of malikana. is taken into account.
6. All the contentions raised by the respondents therefore fail. We accordingly allow the appeal and dismiss the suit with costs in all the Courts.
B.K. Mukherjea, J.
7. I agree.