Brett and Mookerjee, JJ.
1. The plaintiffs-appellant brought a suit against these defendants to recover rents and cesses due in respect of a putni taluq standing in the name of Ray Prasad Sarkar from Baisak 1303 to the Pous kist of 1306. The annual rent for the taluq was stated to be Rs. 212-4-0-1-4, payable in four quarterly kists; and after making allowance for certain payments made by some of the defendants and adding the sums due on account of cesses, the plaintiffs claimed the sum of Rs. 1,157-13-11-1-2 from the defendants. Defendants Nos. 1 and 3 did not contest the suit. Defendant No. 2, Maharaja Surjya Kanta Acharjya Bahadur, alone appeared to, oppose the claim of the plaintiffs. He pleaded that out of the taluq bearing a rental of Rs. 212-4-3-1-4 in respect of which relit was claimed, he held a separate jama bearing an annual kaimi mokarari jama of Rs. 27-13-3-1-10 and paying Rs. 10-3-0 as oesses. He pleaded that he had paid the full rent and cesses for 1303 and 1304, and contended that as a separate account had been opened by the plaintitfs for the rent payable by him, the suit against him jointly with the other defendants could not lie. He admitted that Rs. 66-4-4-1-3 only was due as rent and cesses for. 1305 and 9 months of 1306, and stated that if the Court was of opinion that the suit was maintainable the plaintiffs might be granted a separate decree against him for that sum.
2. The question raised by the pleadings of defendant No. 2 was, therefore, whether there had been a division of the tenure by which his share had been separated from the shares of defendants Nos. 1 and 3 so as to render the plaintiff's suit in the form in which it was brought not maintainable. The yearly rental claimed for the whole taluq was not disputed, nor was it contended that the sum claimed by the plaintiffs was not the arrears of rent actually due from the whole tenure for the years in suit. The evidence on both sides was directed to the point whether or not there had been a division of the tenure.
3. In addition to oral evidence the defendant No. 2 relied on two documents to prove that there had been a division of the tenure. These were a receipt dated the 14th Chaitra 1286 (26th March 1880) for a sum of Rs. 38-0-3-10 granted-in favor of defendant No. 2 by Gopi Kanto Moitra naib of the plaintiffs, and a furd or account dated the 30th Chaitra 1304 (11th April 1898) which appeared on the face of it to have been written by Peary Lall Makhan, a servant of defendant No. 2 and exhibited payments of rent for the year 1304 made in respect of six different taluks by the defendant No. 2 to the plaintiffs, and which was signed and receipted by Gopal Chandra Neogy, Sumarnavis of the plaintiffs.
4. The Munsif rejected the oral evidence of efendant No. 2 as meagre and unsatisfactory, and he held, following the decision of this Court in the case of Aubhoy Churn Maji v. Shoshi Bhushan Bose (1888) I.L.R. 16 Calc. 155 that the receipt and the fund relied on by defendant No. 2 did not amount to such a consent in writing by the landlords as was required by Section 88 of the Bengal Tenancy Act in order to effect a division of the tenure or distribution of the rent which was in law binding on them. He accordingly found that the plea of defendant No. 2 failed and that the suit in its present form could be maintained. With regard to the plea of payment made by the defendant No. 2, he held that payment of rent by him for one year only had been proved, and that the sum so paid had been deducted from the total rent due for the years in suit and had not been claimed by the plaintiffs. Making allowance for a further payment of Rs. 38-4-13 subsequently admitted by the plaintiffs, the Munsif gave the plaintiffs a decree for Rs. 1,038-0-6 against all the three defendants jointly with costs.
5. Defendant No. 2 alone appealed, and on appeal the Subordinate Judge set aside the judgment and decree of the Munsif, and dismissed the plaintiffs' suit with costs.
6. The plaintiffs have appealed to this Court. The Subordinate Judge held that the receipt and the fund relied on by defendant No. 2 amounted to a written consent on the part of the landlord, as required by Section 88 of the Bengal Tenancy Act, to a division of the tenure and distribution of the rent, and therefore that the plaintiffs should have brought two distinct and separate suits against the contending defendant and the co-defendants. The Subordinate Judge further held that the two documents, the receipt dated the 14th Cheyt 1286 and the furd dated 30th Chaitra 1804, with the other evidence led to a strong inference 'that at least for the last 21 or 22 years the contending defendant had been paying his quota of the rents of this tenure separately to the landlord and getting separate acknowledgments of payments from him and without any objection on the part of the landlord.'
6. The only other documentary evidence referred to by the Subordinate Judge are two talab balm for 1301 and 1305 filed by the plaintiffs, in which the defendant No. 2 seems to have been entered as paying a certain sum as rent for the taluq separate from defendants 1 and 3. The Subordinate Judge's conclusion seems to have been based on an inference drawn from all these circumstances and from the improbability that the plaintiffs agents would have signed the receipt or the furd if there had not been a division of the tenure. In another passage in his judgment the Subordinate Judge says: 'It is sufficient for the defendant to show that the plaintiff has recognized his separate liability for a specific portion of the rent of a certain tenure, and having proved such recognition of the plaintiff, I think the plaintiff cannot again treat the defendant's liability for rent of the whole tenure as joint.'
7. For the appellants it has been contended that the construction which the Subordinate Judge has placed on the receipt and the furd and the manner in which he has treated the evidence for the purpose of enabling him to construe those documents is wrong in law: that the documents do not amount to a consent in writing by the landlords to a division of the tenure and a distribution of the rent: and that he erred in dismissing the plaintiffs' suit, Further, even if he was right in holding that defendant No. 2 had made out his ease, the Subordinate Judge ought not to have dismissed the plaintiffs' claim as against defendants 1 and 3 who had never appeared to contest the suit.
8. For the respondent it has been urged that the view of the law taken by the Subordinate Judge is correct, and it has further been. suggested that his finding that there had been a consent in writing given by the landlord was a finding of fact based on the two documents and on the rest of the evidence, and that it is not open to this Court to interfere with that finding in second appeal.
9. We may say at once that in our opinion the suggestion is unsound. The question which we have to determine depends entirely on the construction of the document Ex. B which is the receipt dated the 14th Chaitra 1286 (26th March 1880); and we, have to decide whether that document is a consent in writing by the landlord sufficient to comply with the provisions of Section 88 of the Bengal Tenancy Act. The question is one of law and not one of fact, and in second appeal it is open to this Court to entertain it.
10. The furd Ex. A, on which the defendant No. 2 also relies bears date the 30th Chaitra 1304, that is to say a date subsequent to the period for which a portion of the rents claimed by the plaintiffs in this suit are admitted to be due. That document, supposing it be admitted to be a consent in writing on the part of the landlord, could not be accepted as evidencing a division of the tenure prior, to 1303 so as to bar the present suit.
11. We are not however prepared to hold that the entry No. 3 in the furd together with the signature of the Sumarnavis in acknowledgment of receipt of the sums mentioned in the document amounts to a consent in writing on behalf of the plaintiffs to the division of the tenure or distribution of the rent. The Sumarnavis does not appear to have been the Collector of rents of the plaintiffs, nor does it appear that he had any authority or that it was any part of his duty to consent on behalf of the landlords to a division of the tenure. There is nothing to prove that he knew anything about the tenure, or held any position other than that of a clerk whose duty it was to satisfy himself that the sum paid to him corresponded with the amount for which he gave the receipt.' Even if he referred to other papers in the office he cannot be held by so doing to have acquired any authority to give a written consent to a division of the tenancy which would be binding on the landlords.
12. The document Ex. B, viz. the receipt bearing date the 14th Chaitra 1286 (26th March 1880), is the really important document for the purpose of the suit. It runs as follows:
Dakhila on account of rout of attached hissya 2 annas 15 gundas in perganah-Sherpore belonging to Shama Sundari Choudhurani, minor zamindar, under the Court of Wards, the general moktear being Babu Guru Cham Chakravarty under the Mymensingh Collectorate, dated the 26th March, 1880=14th Chaitra 1286. ... Rs. A. P. G.Rent of taluq Ram Prosad Sircar Kristnapur, &c.;, through(marfat) Surja Kanta Acharja Raja Bahadur through, Ananda Chandra Nag for 1286 ... ... ... 27 13 3 10Road cess and public works cess of the laid taluq ... 10 3 0 0____________38 0 3 10____________Total thirty-eight Rupees three pies and ten krantas only.
13. This, document we observe contains no specification of the total Jama of the taluq, no statement of the area of the taluq or of the portion of the taluq which was separated and separately settled with Raja Surja Kanta, nor of the share separated. It is on the face of it nothing more/than an ordinary receipt for a certain sum paid as rent on account of the taluq by the Raja.
14. In the case of Pyari Mohun Mukhopadhya v. Gopal Paik (1898) I.L.R. 25 Calc. 531 it was no doubt held by Full Bench of this Court that a receipt given by the landlord or by his duly authorized agent in the form of the receipt given in that case amounted to a consent in writing by the landlord to a division of the holding and a distribution of the rent payable in respect thereof within the meaning of Section 88 of the Bengal Tenancy Act. The receipt referred to in that case however contained a recital that the tenant was registered in the landlord's sherista as a tenant of a portion of the original holding at a rent which was a portion of the original rent. The receipt in the present case contains no such recital, and fails to fulfil the conditions under which the receipt in that base was held to amount to a consent in writing by the landlord to the division of the holding. We have no hesitation in holding that the receipt (Ex. B) dated the 14th Chaitra 1286 does not amount to a consent in writing by the landlords within the meaning of Section 88 of the Bengal Tenancy Act. This indeed was the view of the Subordinate Judge.
15. He however seems to have held that a document which failed on the face of it to comply with the provisions of Section 88 of the Bengal Tenancy Act could by means of other evidence be construed to amount to a document which complied with those provisions. This too is the view contended for by the learned pleader for the respondent. In our opinion the view is unsound. The consent in writing by the landlord to the division of a tenure has the effect of substituting a new contract for the old. It should therefore be compete in itself and embody distinctly the terms of the new contract. Should it fail to do so, the principle laid down in Section 91 of the Evidence Act would apply and extraneous evidence to prove the terms of the contract would be inadmissible.
16. But apart from this we have to look at the evidence which appears to have been relied on for the purpose of construing the receipt into something which it was not on the face of it.
17. From the entries in the two talub bakis and the furd Ex. A, the inference has been drawn by the Subordinate Judge that the landlord had for 21 or 22 years received sent separately from the defendant No. 2 for his share in the taluq. Even supposing that we could accept the view that the facts support the inference which we do not, of what value is it to support the construction the Sub-ordinate Judge has placed on the receipt? It was distinctly held by this Court in the case of Buloram Paul v. Swoop Chunder Gooho (1874) 21 W.R. 256 that separate payments of rents by different tenants of one tenure did not vary the nature of the tenure. In the case of Gour Mohun Roy v. Anund Mundul (1874) 22 W.R. 295 it was also held that the fact of some of the joint occupiers of a joint tenure paying portions of the rent due from all, corresponding with the shares for which the joint occupiers are liable, cannot prevent the zemindar from suing them all or making all answerable for the joint debt; and a similar view was taken in the case of Ranee Lalun Monee v. Sonamonee Debee (1874) 22 W.R. 334. This view has never been dissented from, and in the Case of Moharani Beni Pershad Koeri v. Gobardhan Koeri (1902) 6 C.W.N. 823 decided in 1902, it was hold that when a holding is in occupation, of several tenants at one entire rental the foot that the landlord's tehsildar has accepted from the various tenants proportionate parts of the rent does not bind the landlord to recognize a separation of the tenancy in the absence of evidence to connect the landlord with the receipt of any proportionate share of the rent by the tehsildar.
18. Even then if the inference be accepted that rent has been paid separately by defendant No. 2 and, received by the landlords for a long series of years, that in itself not sufficient to constitute a decision of the tenure, and what is in itself insufficient to denote a division of the tenure can hardly be accepted as sufficient to supply the defect in the receipt in the present case.
19. Beyond the receipt and the inference drawn from the furd of the year 1898 and the other evidence already referred to there is no evidence to prove that the landlord gave his consent in writing to the division of the tenure which has been pleaded by defendant No. 2 in his defence to the present suit. The receipt in our opinion fails to comply with the provisions of Section 88 of the Bengal Tenancy Act, or to amount to a consent in writing by the landlord to the division, of the tenure; and the inference fails to support the view that the tenure had been divided. The receipt then gains no greater value from the inference, and the conclusion at which the Subordinate Judge has arrived is not one which we are able to support.
20. We hold that the conclusions of the Munsif are correct, and that the defendant No. 2 has failed to prove that there was any division of the tenure with the consent of the landlord which would relieve him from liability jointly with the other defendants for the whole rent of the tenure. We accordingly set aside the judgment and decree of?he Subordinate Judge and restore the judgment and deoree of the Munsif in the plaintiff's favorv The appeal is decreed with costs.