R.C. Mitter, J.
1. One Umesh Chandra Pal Chowdhury was the proprietor of two revenue paying estates, Mahal Taraf Munshipur and Mahal Dihi Rajapore, which are numbered 336 and 441 in the register of the Collector of the District of Nadia. On 26th February 1848, he granted a patni taluk of the said estates to two brothers, Pran Krishna and Nobo Krishna Pal Chowdhury, in the benami of one Shambhu Chandra Sinha, reserving an annual rent of Rs. 26,001 which was payable in 12 monthly kists (Ex. QQQ n-29). In 1850 there was a partition between Pran Krishna and Nobo Kri. shna. The instrument of partition was executed on 1st February 1850 (Ex. 24, 11-43). At that partition Pran Krishna got 12 mouzas appertaining to Taraf Munshipur and seven mouzas of Dihi Rajapore as representing his 8 annas share in the aforesaid patni taluk, and Nobo Krishna got in his allotment the remaining mouzas, viz., 12 mouzas of Taraf Munshipur and ten mouzas of Dihi Rajapore. They agreed between them to pay the patni rent in equal shares. It is the common case of both the parties that the patni taluk was not split up into two at this time or by this partition among the patnidars.
2. The mouzas of the patni taluk which fell to the allotment of Pran Krishna passed by succession to his grandsons, Nafar and Bipradas. At a partition effected between them in 1898 they fell to the share of Nafar and Bipradas retained no interest in them. On 3rd July 1930, Nafar executed a deed of gift in respect of most of his properties including the aforesaid mouzas of the patni taluk, in favour of his three sons on certain terms and conditions (Ex. 1, 11-256). Later on, differences arose between him and his sons over the matter of the gift. Those differences were referred to the arbitration of two persons who made their award on 2lst March e 1933. A decree was passed on the award on 8th July 1933 (EX. 44, H-749). The sons of Nafar are the plaintiffs in this suit. Bipradas' representatives are defendants 36 to 39. The mouzas of the patni taluk which had been allotted to Nobo Krishna at the partition of the year 1850 have vested in his-descendants, Joydurga, Saroj Ranjan, Nihar Ranjan and Kumud Ranjan Sinha, who are defendants 32 to 35. The group consisting of Saroj Ranjan, Nihar Ranjan and Kumud Ranjan would hereafter be called the 'Sin-has.' The landlord's interest has passed in the following manner. It first devolved by f inheritance on the five sons of Umesh Parameswar, Raj Rajeswar, Gopeswara, Biseswar and Keshav each of whom got 3 as. 4 gds. share. The 6 as. 8 gds. share which belonged to Parameswar and Raj Rajeswar passed by sale to Jadu Nath Khan and Jogonath Khan. Jadu's heirs are defendants 14, 15 and 20, and Jogonath's heirs are defendants 16 to 19. The name of defendant 14 is Jotindra Nath Khan.
3. Gopeswara dedicated his 3 as. 4 gds. share, to a deity named Jogonath Deb Thakur. His two sons Sarbeswara and Tarakeswara were the shebaits. On Tarakeswara's death his g widow Hiranmoyee became a joint shebait with Sarbeswara. They are defendants 12 and 13 in their personal capacity, and 28 and 29 in their capacity of shebaits to the said deity. The 6 as. 8 gds. share of Biseswar and Keshav passed by sale to the Pal Chowdhu-ris of Boyra-Kailash, Kaliprosonna Madan Mohan, Moti, Tarini and Sarada. The shares that belonged to Kailash, Moti, Tarini and Sarada - (total being 3 as. 4 gds.) are represented by defendants 7 to 9 Poresh and others. Kaliprosanna's share (1 a. 12 gds.) passed to his son Haribangsa, who died testate leaving him surviving his mother SatyaI bala, his widow Dakhyabala and two minor daughters. Whether by the terms of Haribanga's will the title to his share has vested in deity Lakshmi Jonardan Jiu is one of the questions involved in the appeal. Satyabala and Dakhyabala in their capacity as executrixes to the estate, of Haribangsa are defendants 10 and 11, and the common manager of that estate, Khirode Kumar Pramanik is also a party defendant. The deity Lakshmi Janardan Jiu represented by its shebaits, Satyabala and Dakhyabala and the said common manager, is defendant 30. Two-thirds of Madan Mohan's share (la. 1gd. 1k. 1kr.) have passed to Nrisingha Pal Chowdhury and others, who are defendants 1 to 6 and the remaining one-third (10 gds. 2k. 2kr.) to Joy Durga, Sara) Eanjan, Nihar Kanjan and Kumud Eanjan Sinha, who as already stated, are defendants 32 to 35 qua putnidars, and have been joined as defendants 21 to 24 in their capacity as cosharer landlords.
4. Rent of the putni taluk for the years 1334 to 1337 B.S. fell into arrears with the result that three rent suits - Nos. 32 of 1931, 12 of 1931 and 21 of 1931 - were instituted by different sets of cosharer landlords for re. covery of their shares of the rent. To all these rent suits Joydurga, the Sinhas, Nafar and the legal representatives of Bipradas were made parties defendants, and all the suits were filed on the footing that there was one patni taluk, that which was created by Umesh in 1848 with an annual rental of Es. 26001. Of these three rent suits, No. 32 of 1931 is the most important one, for one of the main questions in the appeal is whether that suit was instituted in accordance with the provisions of Section H8A, Ben. Ten. Act, and the decrees passed therein were rent decrees having the effect mentioned in Sub-section (6) of that section. The suit was instituted by Nrisingha Nath Pal Choudhury and others : (defendants 1 to 6 of the suit in which this appeal arises) for recovery of their share of the patni rent. Whether all the remaining cosharer landlords were ultimately made parties defendants to that suit is an important question in this appeal, but that some of them were parties is not disputed. Pour sets of the cosharer landlords who had been made pro forma defendants transposed themselves as co-plaintiffs and got decrees for their shares. Those four sets of co-plaintiffs were (1) Poresh and others (defendants 7 to 9 of this suit), (2) Kshirode Kumar Pramanik, common manager to the estate I of Satyabala and Dakhyabala (defendants 10 and 11 of this suit), (3) Jotindra Nath Khan and Satyendra Nath Khan (defendants 14 and 15 of this suit) and (4) Sarbeswara and Hiranmoyee, as shebaits of Jogonath Deb Thakur (defendants 28 and 29 of this suit). In that suit Nafar did not appear; but the other tenant defendants did. The learned Subordinate Judge decreed the suit by his judgment dated 31st July 1933, but instead of passing one decree specifying separately the amounts decreed in favour of the original plaintiffs and the four sets of co-plaintiffs, he passed five separate decrees - one in favour of the original plaintiffs and the other four in favour of each of the four sets of co-plaintiffs. Jotindra and Satyendra Nath Khan put their decree into execution in which they prayed for sale of the defaulting patnitaluk. That execution case was numbered Rent Execution case No. 208 of 1933 and the procedure that was followed was that prescribed in chaD. 14, Ben. Ten. Act. The other sets of persons in whose favour decrees had been passed in that rent suit (NO. 82 of 1931) appeared and prayed for payment of their decretal amounts out of the sale proceeds. While this execution proceeding was pending, Nafar appeared on the scene for the first time and objected to those proceedings. The executing Court did not listen to his objectiont,- and directed the / Nazir to put up to sale the advertised property, namely the patni taluk. On 9th March 1934, which was a Friday, the Midnapore Zamindary Co., (defendant 31 of this suit) offered the highest bid of Es. 65,500 and the Nazir reported that fact to the presiding Judge, who did not however accept that bid on that date. On 12th March 1934, Nafar moved this Court for setting aside certain orders passed by the executing Court in the course of the execution proceedings, and obtained a rule, being civil Rule No. 286 of 1934. An interim stay to the effect that the bid was not to be accepted pending the 9 hearing of the rule was made by this Court (Ex. 59, H-640). That rule was subsequently discharged on 27th August 1934 (Ex. wwwl, II-683). The learned Subordinate Judge had however accepted the bid of defendant 31 on 12th March 1934, the day when the said rule was issued (EX. 48, II-534). After the discharge of that rule, the Sinhas filed an application under Section 174, Ben. Ten. Act, for reversal of the sale. Nafar did not make any application, but the proceedings went on in his presence. That application was made without depositing the decretal amount.
5. The learned Subordinate Judge gave the judgment-debtor applicants time to make the deposit of the decretal amount, but those orders not having been complied with, the application was rejected on 6th October 1934; the sale was confirmed on that date, (EX. 48, II-549) and later on the sale certificate was issued to the purchaser. On 24th September 1934, the three sons of Nafar, Nafar being then alive, instituted the suit in which this appeal arises. They based their right to sue on the basis of the deed of gift, Ex. 1, which Nafar had executed in their favour on 3rd July 1930. Later on the plaint was amended and their right to sue was based on the decree Ex. 44 on the award which was made by the arbitrators in the dispute between Nafar and his sons which we have recited in the earlier part of our judgment. In the suit they have alleged the decrees passed in Kent Suit No. 32 of 1931 and the sale held in exe-cution thereof to be 'fraudulent, illegal, ultra vires and void,' and prayed to the effect that their title to the patni taluq has not been affected. By an amendment of the plaint, a prayer for possession was added. The suit has been dismissed by the learned Subordinate Judge by his judgment and decree dated 13th October 1936. The learned advocate appearing for the plaintiffs-appellants has urged many points which can be classified under five broad heads. They are : (i) that the decrees passed in Bent suit No. 32 of 1931 are fraudulent decrees, and so the court sale in execution thereof is of no effect; (ii) that, even if the decrees are not fraudu-lent, the court sale at which defendant 31 had purchased was a void one, an absolute nullity; that if these two extreme conten. tions are not accepted, only the right, title and interest of the judgment-debtors, and not the putni taluk has passed to the purchaser, inasmuch as, (iii) Suit No. 32 of 1931 was not a rent suit in terms of Section 148A, Ben. Ten. Act; (iv) decrees passed in that suit were not rent decrees, that is, decree having the effect mentioned in Sub-section (6) of Section 148A, Ben. Ten. Act, and (v) those decrees could not in law be executed under chapter 14, Ben. Ten. Act.
6. If any of these contentions (Nos. 3 to 5) is established, defendant 31 would not get the interest which Nafar formerly had in the patni taluq, for at the date of the court sale Nafar had no title to the same, the plaintiffs having acquired the same before the date of the court sale by virtue of the decree (Ex. 44) based on the award of 2lst March 1933.
7. The first point urged depends upon the question as to whether the summons of Kent Suit No. 32 of 1931 on Nafar had been suppressed. The learned Subordinate Judge after examining the evidence in detail has come to the conclusion that there was no suppression and that Nafar had been duly served with the summons of the suit. We agree with his finding on the point. The same peon, Bikuram, had been entrusted with the duty to serve the summons on Nafar and the other defendants. He took out the summons for service on the four sets of tenant defendants on the same day. All those four sets of defendants had to be served in the same locality, namely, the town of Krishnagore, also called Goari. There cannot be any doubt that three sets of those, defendants were duly served with summons on the same day on which the service is alleged to have been made on Nafar, for they entered appearance and filed defences in the suit. There was no motive or necessity under these circumstances for not serving the summons on Nafar. His nephews, the sons of Bipradas were served and they appeared. On each of the four occasions, when the four sets of cosharer landlords were transferred from the category of pro forma defendants to that of co-plaintiffs, notice of the suit was issued for service on Nafar, and the returns show that he had been served. The peons who caused service have been examined and there is truth in what they have said. Nafar was cited by the defendants who contested the rent suit to produce some documents, and his officers in fact produced them and the documents were taken back by them after the decision of the rent suit. We cannot believe the story that all this was done without the knowledge of Nafar, when his zemindary office was in a part of his residential house at Goari. We also find that the persons on whom the peons served the summons were all authorised agents of Nafar and the service was effected at the Kutibary, which was his Katchery at Goari. The learned Subordinate Judge has shown demonstratively that almost every item of evidence which the plaintiffs had led on this part of the case was palpably false, and we agree with his observations.
8. The facts bearing on the second point have already been stated. The patni taluk was put up to sale on 9th March 1934 when defendant 31 offered the highest bid of Es. 65,500 to the Nazir who was conducting the sale, but the bid which had to be accepted by the Subordinate Judge was not accepted by him on that date. It was accepted on Monday following, that is on 12th March 1934. It must have been accepted after 12 o'clock, for proceedings in connexion with sales generally commence at about that hour. This Court issued Civil Eule No. 286 of 1934 on the same day. Having regard to the practice followed in this Court, the rule must have been issued shortly after the sitting of the Court at 11 o'clock. It may, therefore, be taken as established that the interim stay order forbidding the acceptance of the bid by the learned Subordinate Judge had been issued by this Court before the time when the learned Subordinate Judge accepted the bid. It is equally clear on the evidence (EX. 48, n-534) that the learned Subordinate Judge had accepted the bid in ignorance of the said stay order, and before it was communicated to him even informally. The rule was eventually discharged and thereafter the sale was confirmed. The question is whether on these facts and findings the sale was a void sale - an absolute nullity.
9. The first question is what is the effect of a stay order issued by an appellate Court on the powers of the Subordinate tribunal over the subiect-matter of the stay order. The learned advocate for the appellants contends on the authority of the observations made in 33 cal. 9271 that as soon as such an order is passed by the appellate Court the power of the subordinate tribunal is auto, matically suspended from the moment the stay order is passed, and till it is discharged with the result that if the subordinate Court does an act in contravention of the stay order, even in ignorance of the same, the act would be utterly without jurisdiction and so null and void. It would stand on the same legal footing as an act done by a Court which had no jurisdiction over the subject-matter. We will have to examine the position carefully, especially as the contention receives support from the language used in Hukum Chand Boid v. Kamalanand Singh (06) 33 Cal. 927 and repeated in some cases decided thereafter, one of which is Satinath Sikdar v. Ratanmani Naskar (12)15 C.L.J. 335 The actual point which was, however, decided in these two eases was that the order passed or the act done by the subordinate Court in contravention of the stay order of the higher tribunal would be regarded by the higher tribunal which had issued the stay order to be an invalid order, though the order was passed or the act was done by the subordinate Court before the stay order was communicated to it or had been brought to its knowledge. Woodroffe and Mookherjee JJ. in coming to the said conclusion in Hukum Chand Boid v. Kamalanand Singh (06) 33 Cal. 927 expressly dissented from the reason given in support of the view expressed by a Division Bench of this Court in Bessesswari Chowdhurani v. Horro Sundar Mozumdar (97) 1 C.W.N. 226 where the actual decision was that a sale held in contravention of an uncommunicated order for stay issued by the appellate Court was not a nullity, and so could not be ignored in a later suit for possession. The reason which was given was that a stay order was in the nature of a prohibitory order and so could have operation only from the time of its communication and not from the time when it was passed. In our opinion only the1 reason thus given in Bessesswari Chowdhurani v. Horro Sundar Mozumdar (97) 1 C.W.N. 26 was not approved an Hukum Chand Boid v. Kamalanand Singh (06) 33 Cal. 927 A Full Bench of the Madras High Court has taken the view that the operation of a stay order passed by an appellate Court only commences from the time of its communication to the lower Court: Vebjatachalapatiaro v. Kameshwaramma (18) 5 A.I.R. 1918 Mad. 391. The Rangoon High Court has taken the view that it operates from the time of its passing (Mati v. MaThit (33) 20 A.I.R. 1933 Rang. 416) and a Pull Bench of the Allahabad High Court has taken a middle. course. According to that Court it operates from the time of its passing against parties to the proceedings, but against strangers it operates from the time of its communication: Parsotam Saran v. Barhma Nand : AIR1927All401 In the view we are taking it is not necessary to decide which of the aforesaid views is correct, but we may state that the reasoning given by Mukherji J. in 50 ALL. 416 at the bottom of p. 46 and the top of p. 47 of the report is more acceptable. We, however, proceed on the assumption that a stay order made by the appellate Court operates from the time it is passed.
10. When, the appellate Court passes an order for stay, the proceedings are not withdrawn from the lower Court. They still remain pending in that Court, only the matter which is covered by the stay order is kept in abeyance during the period of its operation. The lower Court does not lose jurisdiction over those proceedings. The case would not in any way be analogous to the case where a Court, having no jurisdiction, either territorial or pecuniary or over the subject-matter, assumes jurisdiction and passes a decree or order and does any other act. There is no analogy between a case where a Court passes an order in contravention of the stay order of the appellate Court and the case, for instance, where a Small Cause Court Judge passes a decree for possession of immovable property. An order passed by a Court, or an act done by it, in contravention of the stay order would be an irregular one, may even be regarded as illegal, but it would only be an order passed or an act done in the illegal exercise of its jurisdiction and so would not, in our judgment be a nullity. It will have to be set aside by appropriate proceedings. The Court which passed the order or did the act may itself recall it, and ought to do so, when it is later on apprised of the stay order. The appellate Court which had issued the stay order may set it aside, if it is brought to its notice, but till recalled or set aside it cannot be totally ignored in another suit or other independent proceeding. In both Hukum Chand Boid V. Kamalanand Singh 33 Cal. 927 and Satinath sikdar v. Ratanmani Naskar the order passed by the lower Court was brought to the notice of the appellate Court that had issued the stay order, and in the former case the possession which had been delivered by the lower Court to the plaintiff respondent in pursuance of its order after the making of the stay order but in ignorance thereof was maintained, the appellate Court imposing certain terms on him, and in 15 0. L. J. 3352 the order made by the Court of first instance was expressly set aside by the appellate Court.
11. The actual decision in 1 C.W.N. 2263 can be maintained on the principle we have formulated above, for, there the sale was attacked in an independent suit. If the observation made in 33 Cal. 9271 that as soon as a stay order is passed by the appellate Court, the power of the lower Court over that matter is suspended, be pushed as far as is contended for by the appellant's advocate that is to say, if it be held that the lower Court completely lost its jurisdiction, and its act became a nullity--manifest injustice would result. To take an illustration. In execution of a money decree the judgment-debtor files an objection to the execution under Section 47, Civil P. C. His objection is overruled by the executing Court and his property is put up to sale. He files an appeal against the order rejecting his objection and obtains an order for stay of the sale, but before the order is communicated the sale is held by the lower Court. The stay order is later on discharged and his appeal is also dismissed. He takes proceedings under Order 21, Rule 90, Civil P.C., to set aside the sale but the application is dismissed and then the sale is confirmed and possession delivered by the Court to the auction purchaser. If the contention of the learned advocate for the appellant is given effect to, it would be open to the judgment-debtor to file a suit against the auction purchaser for possession 11 years 11 months and 29 days after the latter had got delivery of possession from the executing Court, and that there would be no defence to such a suit.
12. The order of the learned Subordinate Judge accepting the bid of defendant 31 on 12th March 1934 was known to Nafar. The rule was finally heard thereafter. The learned Judges finally hearing the rule did not set aside the acceptance of the learned Subordinate Judge. In any view of the matter, after the discharge of the rule on 27th August 1934, there was no fetter on the powers of the learned Subordinate Judge. The Nazir had already put up the property to sale and the highest bid had been offered by defendant 31 before the stay order was passed by this Court. That order simply stayed the acceptance of the bid by the learned Subordinate Judge till the rule was finally heard. After the stay order had lapsed with the discharge of the rule, it was not required that the property should be put up to sale again. The Subordinate Judge could at any time after 27th August 1934 when the rule was discharged, have accepted the bid. In our judgment the confirmation of the sale by the Subordinate Judge, which was after 27th August 1934 obviated the necessity of recording a formal order of acceptance of the bid after that date, which the learned Subordinate Judge would most certainly have done, if any of the judgment, debtors, including Nafar had raised the question that the learned Subordinate Judge could not have in law accepted the bid offered by defendant 31 on 12th March 1934. We accordingly overrule this point also.
13. The arguments advanced in support of the third and fourth points to some extent overlapped, but we will try to keep them separate as far as possible. The reasons given by the learned advocate for the appellants in support of his contention that Rent Suit No. 32 of 1931 could not be regarded as brought under Section 148A, Ben. Ten. Act, are - (i) that all the landlords were not parties to J that suit, and (ii) that all the tenants were not parties. This part of the argument has been advanced on the footing that there was one tenancy, namely, the patni taluk as it was created in 1848 by Umesh. The grounds urged in support of his contention that the decrees passed in that suit were not rent decrees are: (i) that the suit was not in respect of a single tenancy but for arrears of rent of several tenancies, the patni taluk having been replaced by a number of permanent tenures; (ii) that the procedure of Section 148A was not complied with inasmuch as (a) no notice under Sub-section (2) of Section 148A was served on some of cosharer landlords, (b) that notices of the transposition of some of the cosharer landlords from the category of de. fendants to that of co-plaintiffs had not been given to Nafar, (c) that the three rent suits Nos. 32 of 1931, 12 of 1931 and 21 of 1931 had not been consolidated, and (d) that five rent decrees and not one, as is required under Sub-section (b), were passed.
14. We will first take up the question of fact, namely, whether the patni taluk granted in 1848 by Umesh continued as a single tenancy, or had been sub-divided into several tenures. (After considering the evidence his Lordship proceeded.) We hold that there was one tenancy, namely, the patni taluk as granted by Umesh in 1848 and held at the rent of Rs. 26,001 per year when the rent suits of 1931 were brought, and that tenancy is still con. tinuing. Although, there was a partition amongst the patnidars the landlords did not recognise the same. We will now consider the points urged before us, which we have classified above. The first point is whether all the landlords were parties to rent suit No. 32 of 1931. The contention of the learned advocate of the appellants is (a) that one of the landlords, namely, that in Gopeswar's branch, Jogonath Deb Thakur, a deity, was not properly represented; (b) that the share of Haribangsa had vested in the deity Lakshmi Janardan Thakur and that^deity was not a party to the rent suit; (c) that Jotindra Nath Khan was not a defendant, and that he had wrongly become a co-plaintiff; and (d) that Joy Durga and the Sinhas were not parties in their capacity as landlords.
15. It is admitted by the respondents that Gopeswara's share in the zamindari had vested in the deity Jogonath Deb Thakur. It is quite true that the idol was not originally a party to that suit, but that Gopeswara's sons, Sarbeswara and Tarakeswara had been made defendants in their personal capacity. Tarakeswara died leaving his widow, Hiran-moyee as hia legal representative and she was duly substituted. She was also a co-shebait of the deity. Later on the plaint was amended, and Jogonath Deb Thakur was added, and Sarbeswara and Hiranmoyee, who were in fact its shebaits, were described in that capacity. The plaint has been printed in the record from a certified copy which is misleading. We had the original plaint of the rent suit brought up. The said two she-baits applied later on on behalf of the deity to be transposed to the category of plaintiffs. Their application was granted and a decree was passed in their favour and in their capacity as shebaits of the idol. The decree as originally drawn up was defective, but it was rectified by an amendment. The vakalatnama on the basis of which the application for transposition was made is Ex. AA (4) (I-444), and it fully supports the view that the idol was represented in the suit by both the shebaits. Haribangsa left a will (EX. LLL-II-149) by which he appointed his mother, Satyabala, and his widow, Dakhyabala, executrixes. He had an ancestral family deity, Lakshmi Janardan Jiu. He and others were its shebaits. That deity had other endowed properties called the Sarkari properties. During his lifetime Haribangsa used to perform the worship of the, said deity on every fourth year according to his turn of worship, but he used to maintain out of his own personal funds the daily worship of some other deity and out of the same funds used to perform every year the Durgapuja, Shyamapuja, Kartickpuja and Saraswatipuja. In the last part of paragraph two of his will he stated as follows:
In order to carry on the daily and periodical sheba, etc., (worship) and for satisfactorily carrying on the sheba of the said deity Sree Sree Lakshmi Janardan Jeu, I dedicate the whole of my one anna and twelve gandas share, Mahal Taraf Munshipore bearing Touzi 336/4 No. and Dihi Rajapore bearing Touzi No. of the Nadia Collectorate.
16. The periodical shebas mentioned there refer to annual Durgapuja, Syamapuja, Kartiekpuja and Saraswatipuja and the daily sheba is the worship of an unnamed deity. In our judgment not merely was a charge for worship created on the said one anna twelve gandas share of those mehals, but the whole of the income thereof was enjoined to be spent on the worship of all those deities. The mehals however did not vest in Lakshmi Janardan Jeu or in any of the other deities. By the terms of the will the said mehals vested in the executrixes, Satyabala and Dakhyabala. They were made trustees to carry out the religious trusts mentioned in the will, namely, the worship of all those deities. In their capacity as executrixes and trustees they were the landlords of the patnitaluk; they were only bound to apply the whole of the income for the worship of those deities. The idol Lakshmi Janardan Jeu was thus not a necessary party to the rent suit.
17. There is, moreover, another effective an-swer to the appellants' contention. A common manager, Kshirode Kumar Pramanik, was appointed by the District Judge at the instance of Satyabala and Dakhyabala over the estate of Haribangsa including the said two mehals. In our judgment he was appointed under Section 95, Bengal Tenancy Act. He got his name registered under the Bengal Land Registration Act in respect of these two mehals in that capacity. He alone had the right to sue for rent under the terms of Section 98 of that Act. He was substituted in Rent Suit No. 32 of 1931, got himself transferred to the category of a co-plaintiff and got a decree in his favour. In these circumstances it cannot be said that the landlord representing Haribangsa's branch was not a party to that rent suit.
18. The argument that Jotindra Nath Khan was not originally a party defendant proceeds upon a misconception. In the plaint as originally filed defendant 14 was described thus: 'Jotindra Nath Khan, in his place Earn Chandra Dutt by right of purchase,' and defendant 15 was Shujanendra Nath Khan. By the first amendment 'Ram Chandra' was corrected, to 'Sribash Chandra.' Up to this stage, Jatindra Nath was not a party defendant but Sribash appeared as defendant 14. In a further application for amendment it was stated, what the fact was, that Jotindra Nath had not sold his interest in the mehals, but Shujanendra had. That application for amendment was allowed with the result that Jotindra Nath was left as defendant 14 and Sribash became defendant 15 in the place of Shujanendra Nath Khan. Jotindra Nath thereafter became a co-plaintiff along with another (Satyendra Nath Khan) on his own application and got a decree for his share of the rent in arrears.
19. We have already stated that Joy Durga and the Sinhas had acquired 10 gds. odd share in the zamindaris. They were therefore cosharer landlords. They were also some of the tenants. In the cause title of the rent suit their names were mentioned once only and the description was that they were the principal defendants. The cosharer landlords who had not filed the plaint were described as pro forma defendants. But in Para. 6 of the plaint (Ex. 45, 11-371) it was expressly stated that Joy Durga and the Sinhas were also some of the cosharer landlords. In view of that statement, we do not think that it can be contended that they were not parties to the suit qua landlords. The normal practice has been followed. It is not necessary where a person is sued in two capacities, that his name should be repeated twice in the cause title. It is sufficient if the two capacities are indicated in the body of the plaint, and if that is done he will be considered to be a party in the suit in both the capacities. The observations made by Sargant L. J. in (1928) 1K. B. 6637 at p. 699 support our view.
20. The contention that all the tenants had not been made parties defendants in Rent Suit No. 32 of 1931 has been urged under two heads namely: (a) that Nafar was not a party in the eye of law, as no summons had been served on him, and (b) that, there was omission to implead the sons of Nafar (the plaintiffs) as parties defendants. We have already held that summons had been served on-Nafar. There is therefore no substance in the first ground. The second ground will have to be examined. On the finding we have arrived at before that the patni taluk had not been split up, Nafar had an eight annas undivided share in that taluk. Rent Suit No. 32 of 1981 was brought for the recovery of arrears of rent for the years 1334 to 1337 B.S. On 3rd July 1930 corresponding to 18th Assar 1337 Nafar executed a deed of gift (Ex. 1. II-256) in favour of his three sons. The deed comprised his share in the patni taluk as also his other properties. The gift was a conditional one. We hold (and that in disagreement with the learned Subordinate Judge) that the three sons of Nafar got life-estates in the eight annas share of the patni taluk, as also in the other properties mentioned in that deed, from the date of execution of that deed. The condition was a condition subsequent. On the happening of certain contingencies, namely, if the donees failed to pay the debts of Nafar within eight years from the date of that document or violated any of the terms thereof, their interests inthe properties were to come to an end. The life interest which they got by the deed of gift continued till the decree on the award (Ex. 44, n-751) which was passed on 8th July 1933 by which their interests were enlarged from life estates to absolute estates. On these findings the position is that vis-a-vis Nafar his three sons became liable to pay eight annas share of the patni rent from the sraban Kist of 1387. Thus, for a portion of the claim included in Rent Suit No. 32 of 1931 namely for the nine monthly kists, from kist Sraban to kist Ohaitra 1337 B.S. - the sons of Nafar were liable vis-a-vis Nafar. It is however the contention of the learned advocate of the appellants that as soon as Nafar executed the deed his liability to the zemindars to pay his share of the patni rent ceased from that time and the liability of his sons to pay to the zemindars was created; the sons of Nafar became tenants from the date of the deed of gift and the zemindars were bound to implead them as defendants in Rent Suit No. 32 of 1931. Not having done so, that suit was not a suit under Section 148A, Ben. Ten. Act, in view of Sub-section (1) of that section and the decrees passed were not rent decrees having the effect mentioned in Sub-section (6). According to the learned advocate all these consequences follow because a patni taluk is transferable in law.
21. By Section 3, Sub-section (1) of Regulation 8 of 1819 patni taluks are made transferable by sale, gift, etc. That section implies that not only the I, whole taluk but portions or undivided shares therein can be transferred. Sections 5 and 6 define the rights of the zemindar on a transfer by the patnidar. These last mentioned sections apply to the alienations of the whole patni taluk and not to fractional parts or shares thereof for the last portion of Section 6 expressly states that the rules laid down in Sections 6 and 6 would not apply 'to transfers of any fractional portion of a patni taluk' and the reason given is that 'no apportionment of the zamindar's reserved rent can be allowed to stand good unless made under his special sanction.'
22. Where the entire patni taluk is sold or made the subject-matter of gift, the zemindar can refuse registration till the fee payable to him and the security to which he is entitled are given by the transferee. If the fee is not paid or sufficient security is not given, he is entitled to ignore the transferee and, to continue to treat the transferor as his tenant. This has been settled. The question which we have to consider is what are the rights of the purchaser or donee of a fractional part of a patni taluk vis-a-vis the zemindar. The condition about payment of the zemindar's fee and the furnishing of security as provided for in Sections 5 and 6 do not apply. The zemindar is not entitled as of right to demand the fee or the security in such a case. Such being the case, is the zemindar bound to recognise him as his tenant the moment the transfer deed is executed or is the zemindar entitled at his option to treat the transferor only as his tenant ignoring the transferee altogether? If the last mentioned position is the correct one, the plaintiffs of Rent Suit No. 32 of 1931 were not bound to implead Nafar's sons as defendants, and the entire tenancy was represented in that suit by Nafar and the other patnidarg, Joy Durga, etc.
23. Sections 5 and 6 of the Patni Regulation were construed by the Judicial Committee in Robert Waston & Co. v. Collector of Rajshasya The relevant observations , are at pp. 176 and 177 of the report. They are no doubt obiter but they contain an authoritative pronouncement on the subject of part transfers of patni taluks. In that case the Right Honourable Sir James Col. vile after noticing the provision of Patni Regulation including that of Section 6 observed that it was extremely questionable that such transfers would have been binding on the zemindar, and that the transferees who took limited interests in, and those who took absolutely, but of portions of the patni taluk, could not have said to the zemindar that 'we claim to be treated as your patnidars.' Relying on the reason given in the last part of Section 6, it is, however, contended before us that what is not binding on the zemindar is not the transfer, but the apportionment or division of rent, but we cannot accept that contention. The text is clear and the reason cannot control or curtail it. The question was argued in the same form in 18 Rakhal Chandra Das v. Uma Prasad Misri (14) 1 A.I.R. 1914 Cal. 636 but was not accepted. That case is a clear authority on the point and is binding on us. As it is not the plaintiffs case that the transfer to them by their father of an undivided half share in the patni taluk had been recognized by the zemindars, we must 9 hold that Rent Suit No. 32 of 1931 was against all the tenants, Nafar and the other principal defendants in that suit representing the tenancy. The cases cited by the learned advocate for the appellants, namely Sourendra Mohan Tagore v. Surnomoyi (99) 26 Cal. 103 and Aosub Ali Pramanik v. Bisseshuri (99) 26 Cal. 103 are distinguishable. They only lay down the proposition that a zemindar can at his option recognise the purchaser of a part of a patni taluk as his tenant, and if he does, the purchaser becomes jointly liable with the transferor to pay rent to the zemindar. We overrule this point also.
24. We have already recorded sufficient findings on two of the points urged in support? of the contention that the decrees passed in rent Suit No. 32 of 1931 were not rent decrees. They are that the rent suit was for one tenancy. That finding answers the contention which was based on Profulla Nath v. Satyabhusan (29) 16 A.I.R. 1919 P.C. 171 it where in the same rent suit many tenurea had been lumped together and the decree passed was for the lump rental of all those tenures. The second point is concluded by our finding that Nafar was served with all the summons of the suit, that were issued an him. The special notice under Section 148A, Sub-section (2) was not served on Joy Durga and the Sinhas, but was served on all the remaining cosharer landlord defendants. But as Joy Durga and the Sinhas were also tenants, the summons of the suit was served on them and they appeared. The fact that that special notice was not served on them is, in our judgment, not material. The object of that notice is to invite the cosharer landlord defendants to become co-plaintiffs and to claim their share of the rent in that suit. Joy Durga and the Sinhas could not have become co-plaintiffs, for they could not have claimed in the suit the share of rent due to them from themselves.
25. A cosharer landlord who is made a defendant in a suit framed under Section 148A remains only in name as a party, if no notice or summons of the suit is served on him and he does not appear. In that case, he is not a party to the suit in the eye of law and decree would not be in that event a rent decree. But if he is either served with the summons of the suit, or if he appears and is represented in the suit, the decree would be a rentdecree, if other material conditions of Section 148A are fulfilled. If in such a case the special notice under Sub-section (2) is not served on him the only effect of the non-service is that he does not lose his right to sue for his share of the rent for that period in a separate suit. We cannot, therefore, uphold this contention of the appellants. We do not also see any substance in the contention that non-consolidation of the three rent suits reduced the decrees passed in Rent Suit No. 32 of 1981 to mere money decrees. The Court which had seisin over Rent suit No. 82 had notice of the institution of Rent Suits Nos. 12 and 21 of 1931, for applications for consolidation of those suits with Rent Suit No. 32 were in fact made, but no order for consolidation was made and separate decrees were passed in those three rent suits, as the plaintiffs who had instituted Rent Suits Nos. 12 and 21 did not become co-plaintiffs in Rent Suit No. 32. The plaint in Rent Suit No. 12 is on the record (EX. AAA(I)-H-362), but the plaint of the other suit (No. 2l) is not. The plaint of Rent Suit No. 12 was not in accordance with Section 148A, as the remaining cosharer landlords were not made parties.
26. Section 148A, Sub-section (4) requires consolidation with the suit filed under Section 148A. That suit is to be the main suit. On the materials on the record, Rent Suit No. 32 of 1931 was the main suit. If the other suits were not consolidated with that main suit, we do not see why the decree passed in that suit, namely No. 32 of 1931, would not be regarded as a decree having the effect mentioned in Sub-section (6) of Section 148A. We are inclined to go further and to hold that non-compliance with Sub-section (4) of Section 148A would be at most an irregularity, and questions about regularity of the proceedings ought to have been raised in that rent suit. If no such objection was raised, the nature of the decree passed would not, in our opinion, be altered. It would be a rent decree. Sub-section (6) of Section 148A requires one decree to be passed. But that decree must specify the amount payable to each cosharer landlord or to each set of cosharer landlords separately. In this case what has been done is that instead of drawing up one decree in that form, separate decrees have been drawn up in favour of the different sets of co-plaintiffs. The matter is thus one of form and not of substance. We accordingly overrule this point also. The net result of our conclusions is that the decrees passed in Rent Suit No. 32 of 1931 have the effect of a decree passed in favour of the sole landlord or the entire body of landlords. These decrees could be executed under chapter 14, Ben. Ten. Act, unless the fifth point urged by the appellants be accepted. The fifth point is based on the assumption that Jotindra Nath Khan had sold his share in the zemindary before the decree had been passed in Rent Suit No. 32 of 1931. If that position is established the argument would have force, for it has the support of the decisions in A.H. Forbes v. Maharaj Bahadur Singh (14) 1 A.I.R. 1914 P.C. 111 and Krishnapada Chatterjee v. Manada Sundari : AIR1932Cal321 We cannot, however, give effect to this ground of attack for two reasons, (1) because the case has not been raised by the plaintiffs in their plead, ings and (2) because there is no proof of the fact that Jotindra Nath Khan had ceased to be a landlord before the sale at which defendant 31 had purchased.
27. The case that Jotindra Nath Khan had parted with his interest in the zemindary before the decree in Rent Suit No. 32 of 1931 was passed was not pleaded in plaint as originally filed. On 6th July 1936, the plaintiffs applied for amendment of the plaint. By that application for amendment they sought to introduce that case. There they stated that Jotindra Nath had sold his interest to Sreebash Chandra Dutt in Magh 1SS9 B.S. (January.February, 1933). That application was opposed by defendant 31 who in the first instance denied the fact of the sale of Jotindra Nath's share. It was further alleged that even if Jotindra Nath had executed a conveyance in favour of Sreebash' that was a benami affair. That petition of objection has not been printed, but we have looked into the original record. It was also opposed by Sribash Chandra who was a defendant in his capacity as purchaser of Shujanendra Khan's share. The question of amendment was taken up on 7th July 1936. The advocate of the plaintiffs stated in Court that he would not press the application for amendment, if defendant 20 (Sribash Chandra Dutt) gave the date of his purchase of the share of Jotindra Nath Khan. That request was complied with by defendant 20, whose pleader gave 23rd January 1933, as the date of his client's purchase of Jotindra Nath Khan's share in the zemin-dary. That statement is at p. 807 Part I. The application for amendment not being pressed under these circumstances was disallowed (orders Nos. 151 and 152, I, 59 and 60). The contesting defendants, specially No. 31 had, therefore, no such case to meet in the lower Court, and we think it would be wrong to allow the appellants to urge this point.
28. On the question of fact as to whether Jotindra Nath had transferred his share to Sribash Chandra Dutt, the position stands thus. The conveyance has not been produced but there is the statement of Sribash Chandra Dutt who is a defendant to the suit. That statement is not admissible against the co-defendants: Amirtolal Bose v. Rajonikant Mitter (75) 2 I.A. 113 at p. 26. There is thus no evidence which would support the case that Jotindra Nath Khan had parted with his interest in the zemindary before the sale. The learned Sub-ordinate Judge had in his judgment stated that many of the points raised by the plaintiffs could not be agitated in the suit by reason of the bar imposed by Section 47, Civil P.C., or by reason of res judicata in view of the decision passed in Bent Suit No. 82 of 1931. The advocates for the respondents did not make any attempt to support this part of his judgment. We do not also < think that the learned Subordinate Judge was right in his views on these points. We do think that the appellants are not entitled; to succeed for the reasons which we have given above. The result is that this appeal is dismissed with costs to defendant 31 and the appearing zamindar respondents. Defendant 81 would get three-fourths of the hearing fee and the remainder would be dividiedfc equally between the other sets of respondents to whom we have given costs.
29. F.A. No. 81 of 1936 - This appeal arises out of Bent suit No. 14 of 1985 instituted by the common manager, Khirode Kumar Pramanik, for recovery of rent for the years 1338 to kist Bhadra 1841 from Joy Durga, the Sinhas and the heir of Nafar and Bipradas. During this period the said defendants were the tenants, for the period ends with the kist from after which the Midnapur Zamindary Co. Ltd., purchased the patni taluk at the court sale. Only two points have been raised in the appeal namely, (1) whether the patni taluk had been replaced by many tenures, and (2) whether the common manager can sue in his own name. As we have answered both these points against the appellants in the other appeal, this appeal must be dismissed with costs to the plaintiff respondent. Hearing fee 10 gold mohurs. No further order is necessary on the application filed on 6th July 1940.
30. I agree.