1. These appeals are on behalf of defendant 2 and arise out of two rent suits. One Golam Ali Choudhury died in 1888 leaving three widows of whom respondent in Appeal No. 1717, Jamidannessa is one, three sons and six daughters of whom respondent in Appeal No. 1716 Rahimannessa is one. Jamidannessa inherited 13 gandas and odd share in Golam Ali Choudhury's estate and Rahimannessa 17 gandas and odd share. In 1891 these two ladies by different registered leases let out their respective shares in the 397 items of property left by Golam Ali Choudhuri to his two sons Tozammal Ali alias Kuti Mia and Ali Ahammad, reserving an yearly rent of Rs, 1,200-8-0 in favour of each of the lessors. The present suits are brought by the plaintiffs, the lessors, for rent against the heirs and assignees of Tozammal Ali and Ali Ahammad for the years 1327 and 1328 on the basis of the registered leases. It appears that in 1329 there was a partition by the civil Court among the heirs of Golam Ali Choudhuri and the assignees from them including the present appellant under which the shares of the lessors were transferred to 70 out of the 397 items of properties. Of the 397 items of properties left by Golam Ali Choudhuri 109 were revenue-paying estates and the remaining 288 were tenures.
2. An objection was taken on behalf of the defendant-appellant in both the suits that they were not maintainable in view of Section 16, Ben. Ten. Act, inasmuch as the names of the lessors were not registered under Section 15 of that Act. The learned Subordinate Judge in the trial Court gave effect to the plea in bar and dismissed the plaintiffs' suit in respect of the tenures on the ground that the plaintiffs had not got their names registered with the Collector and decreed the plaintiff's claim in respect of the revenue-paying estates after deducting the amount which the plaintiffs admitted to have received from the defendants. In the suit in which Rahimannossa was the plaintiff a further objection was taken that a portion of the claim was barred as it was contended by the defendant that the suit was for 1325 and 1326 and as also for 1327 and 1328, and the claim for rent for the years 1325 and 1326 was barred.
3. On appeal the learned District Judge differed from the Subordinate Judge on both points and decreed the plaintiff's suit with some modification.
4. Defendant 2 has appealed and it is argued in the first place on his behalf that the suits out of which these appeals arise are barred by Section 16, Ben. Ten. Act. In my judgment the view taken by the learned District Judge is correct and should be affirmed.
5. Section 16, Ben. Ten. Act, says that a person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit any rent payable to him as the holder of the tenure until the Collector has received the notice and fees as mentioned in Section 15, Bon. Ten. Act. The section as it stands disentitles a person succeeding to a permanent tenure to recover rent as the holder of the tenure. It does not say that such a person is not entitled to recover rent if he has any right other than the right arising from the fact of his succession to the tenure. The provision of the section is a disabling one and consequently penal and as such must be strictly construed. This view has been taken in this Court in the cases to which reference will be made later. The section in my opinion applies where a person seeks to recover rent qua tenure-holder and not where the claim is based on a different or an additional right outside the section. In the present case the plaintiff is no doubt the holder of the tenure by succession but the suit is based on a lease which was executed long after her succession to the tenure and her present claim is grounded on contract. She is entitled to the rent not by virtue of her succeeding to the tenure but under the contract by which the defendant agreed to pay her certain amount of rent for possession and enjoyment of property belonging to her. If for instance, the lessor had not succeeded to the tenure and had no right to it but was in wrongful possession of it and inducted the tenant into the land under a lease the tenant would be estopped from denying the relationship of landlord and tenant and questioning the lessor's title as also his liability for rent.
6. It is argued that the principle underlying the Land Registration Act (Bengal Act 7 of 1876) should be applied to matters arising under Sections 15 and 16, Ben. Ten. Act. Section 78, Act 7 of 1876 runs thus:
No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered.
7. Section 81 of the Act saves written contracts from the operation of Section 78. It is therefore contended that as there is no such saving provision in the Bengal Tenancy Act, it must be held that contracts are not excluded from the operation of Section 16, Ben. Ten. Act. This contention cannot be accepted. Section 78, Land Registration Act, is in general terms preventing a person whose name has not been registered under the Act recovering rent in respect of any estate. It was thus necessary to except in express words written contracts between the landlord and tenant. This contingency did not arise in the case of Section 16, Ben. Ten. Act; for that section does not in general terms prevent a person from recovering rent, but it expressly limits itself to the case of a person suing as the holder of the' tenure.
8. The view that I have taken is supported by ample authority. In the case of William Sheriff v. Jogmaya Dasi  27 Cal. 535 the facts wore that a Hindu widow had succeeded to the estate of her husband who was a tenure-holder. She did not get her name registered under Section 15, Ben. Ten. Act. She died leaving the plaintiffs as her daughters and heirs. The plaintiffs brought a suit for rent that had accrued during the lifetime of the mother. The plaintiffs had not also got their names registered under Section 15, Ben. Ten. Act. Objection was taken on behalf of the tenants that the plaintiff's wore not entitled to recover rent firstly because the mother, who had succeeded her husband herself, had not got her name registered under Section 15, Ben. Ten, Act, and was not therefore herself competent to recover rent from the tenants and that consequently the plaintiffs could not as her successors, and also as they themselves had not got their names registered on succession to the tenure, recover such rent. The objection was overruled. Banerji and Stevens, JJ., remarked: 'The provision of the section is penal and must be strictly construed.' On the facts they held that the plaintiffs were not suing for rent as holders of the tenure but also as successors of the mother or of the father to whose estate they succeeded as reversioners. In interpreting Section 16, Ben. Ten. Act, the learned Judges observed that it must be restricted to a case in which the plaintiffs claimed rent as successors to the tenure and not in any other capacity or under any other right. The position in that case appeared to be somewhat anomalous since the mother not having got her name registered could not herself recover rent whereas the daughters were held entitled to recover it from the tenants. On this point the following observation is instructive:
It was argued that it would be anomalous to hold that although if Nistarini had brought a suit for this rout she could not have maintained it, the plaintiffs may nevertheless maintain this suit notwithstanding that neither her name nor the name of the plaintiffs have been registered. Perhaps that may appear somewhat anomalous, but the opposite view would result in a greater anomaly and indeed in hardship and injustice.
9. The view taken in that case was followed in Mesbahuddin Ahmed v. Abdul Borkat A.I.R 1921 Cal. 302 where the learned Judges, Messrs. N. R. Chatterji and Panton, after referring to the decision in Sheriff's case observe that Section 16, Ben. Ten. Act, being a penal provision it should be strictly construed and that:
it applies only to a person who claims rent as the holder of the tenure and not to a person who claims it by virtue of purchase from the person to whom the rent accrued due as in the present case.
10. In that case the plaintiff who was the assignee of the rent that had accrued duo during the lifetime of the former holder of the tenure whose name was not registered under Section 15, Ben. Ten. Act, brought a suit for recovery of the rent and it was held that notwithstanding that the name of the landlord was not registered the assignee could maintain the suit for rent actually recoverable by the former landlord. In my opinion these suits which are founded upon the kabuliat of 1891 executed long after the succession to the tenure by the plaintiffs are not hit by Section 16, Bon. Ton. Act.
11. In Second Appeal No. 171G a special plea has been taken in accordance with the view of the trial Court that the rent for the years 1325 and 1326 are barred by limitation. We have read the plaint and it seems to us that there is no substance in this objection. Para. 11 of the plaint to which special reference has been made by the learned District Judge clearly shows that the rent claimed was due for the years 1327 and 1328. In the schedule to the plaint a running account is given of the duos and payments in respect of rents from 1325 down to the year 1328. _The items on the credit side and the debit side show the amounts of rent that have become due and the amounts that have been paid. The schedule shows the rents due for the four years but in the plaint the claim was' made for rent for the years 1327 and 1328. The Subordinate Judge was moreover wrong in deducting the payment made by the tenants from the rent due for 1327 and 1328 only. The account appended to the plaint shows that the tenants made payments towards rents as they fell due from time to time.
12. Turning now to the cross-objection by the plaintiff in Second Appeal No. 1716 of 1927. The learned District Judge has. held that the plaintiff herself being a. sister of the lessees was entitled to a certain share in their estate and the amount of rent claimed by the plaintiff should he reduced in proportion to her share in the estate which he calculates as 7/144. The learned Subordinate Judge in the trial Court took a different view. He said:
As to Tozammal Ali's properties inherited by his sisters, they are not properties for which rent have been claimed in these suits. These properties of Tozammal Ali have been sold away.
13. This finding is not very clear and does not give sufficient reason for holding that the share to which the plaintiff succeeded as a sister of the lessees should be exempted from liability for payment of rent. On the other hand the learned District Judge has not correctly read the judgment of the Subordinate Judge. He reads the statement of the defendant's case by the Subordinate Judge as a finding by him that the plaintiff Rahimannessa being heir of . Tozarumal Ali was herself liable for rent. On the whole it seems to us that this point was not satisfactorily decided either by the trial Court or by the lower appellate Court. In these circumstances we uphold the decree of the lower appellate Court but leave this question open for determination on better materials on future occasions.
14. The result is that the cross-objection is overruled and Appeals Nos. 1716 and 1717 are dismissed with costs.
15. In Appeal No. 647 of 1928 Jamidannessa is the appellant. The suit related to the rent after 1328, i. e., for the period during which the properties were partitioned among the cosharers. By that partition out of 397 items of property in which Jamidannessa had inherited a share from her husband she was given certain increased shares in 50 revenue-paying estates and 20 tenures. According to law, after the partition the lease to Ahammad Ali and Tozammal Ali which related to the plaintiff's undivided share in the 397 items of property was transferred to the shares allotted to her on partition in the 50 revenue-paying estates and 20 tenures. So far there is no dispute, but the learned District Judge in appeal has found that though the plaintiffs' interest in the 397 items of property for which the tenants were to pay Rs. 1,200-8-0 rent was transferred to the 70 properties, she is not entitled to get rent as settled under the contract but to an amount ascertained according to the increase in her shares in the 70 properties brought about by partition by applying a method of rule of three, taking into account the shares originally held by the plaintiff in the 70 properties and the increased shares allotted to her under the partition in them. This seems to us to be a highly arbitrary way of determining the rights of the parties. The result of this sort of calculation is that the rent to which the plaintiff is entitled under the contract has been diminished by about Rs. 250. It may be that some of the properties have been lost for which there should be abatement of rent but the amount decreed in favour of the plaintiff has not been settled on that basis. There is moreover a fact which has been brought to our notice by the appellant. It is said that by the decree in the partition suit to which the respondent was also a party it was settled that Rs. 1,200-8-0 was to be paid as rent in respect of the shares allotted to the plaintiff in the 70 properties. This point does not seem to have been considered by the lower appellate Court. It seems therefore desirable that the question should be reconsidered in the light of the partition decree as well as other circumstances of the case. It may be that the plaintiff is not entitled to get the entire rent on the ground that some properties have been lost.
16. The result is that the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and the case is remitted to the lower appellate Court for the determination of the question as to what rent the plaintiff is entitled under the contract read with the partition decree and the evidence on the record. There should be abatement of rent in respect of such properties as have been lost since the lease.
17. Costs will abide the result.
18. I agree.