1. Lot Rosowa appertains to Touzi no. 111 of Beerbhoom Collectorate. The past proprietors of the said touzi settled the same in patni taluk to one Shibohandra Chakravarty at an annual rent of rs. 7623-5-8. The patnidar was to pay the revenue of the touzi (Rs. 4173-14 annas) by barat and the balance of the patni rent as munafa to the proprietor of the said touzi. The plaintiffs purchased 5 as. 19 gundas 3 karas odd share of that touzi at a revenue sale.
2. In 1935 they brought a rent suit, Rent Suit No. 24 of 1935, against a large number of persons for recovery of the arrears of rents due in their share for the years 1339.1341. We call those defendants, for brevity's sake, the Mitters, the Tewaris, the shebaits, the Kabirajes and the trustees of the Jagadamba Estate. It is admitted by the parties, that the Kabirajes had at that time 10 annas share of the patni and were liable as between them and the other patnidars for that share of rent for the period for which rent was claimed in that suit. In that suit the plaintiffs prayed for a joint decree against all the defendants. The Kabiraj defendants, however, pleaded that their liability for rent had been separated and that the plaintiffs could obtain a decree against them only for 10 annas share of the rent claimed in the suit. This defence was overruled by the trial Court, which passed a decree for the whole amount claimed by the plaintiffs against the Kabiraj defendants and the other defendants. The Kabiraj defendants preferred a first appeal to this Court, being no. 136 of 1936. The respondents were the plaintiffs and the other defendants to the said rent suit. The appellants in that appeal, namely, the Kabiraj defendants, and the plaintiffs-respondents filed a petition of compromise in this Court. That compromise was recorded and a decree was passed in terms thereof. The appeal was dismissed as against the other respondents--the defendants-respondents who had not joined in the compromise. The material terms of the compromise were: (i) that on receipt of a selami of Rs. 700 the plaintiffs recognised the Kabiraj defendants as their patnidars at the apportioned rent of Rs. 1784-4-11 per year plus cess rs. 154-4-9 (as being the rent and cesses payable in respect of 10 annas share which they had in the patni); (ii) that this apportionment was to come into effect from 1342 B.S. (iii) that the plaintiffs will not be entitled to make the Kabiraj defendants liable for the rent and cesses of the patni payable in the share of the co-patnidars of the Kabiraj defendants from 1342, and (iv) that out of the apportioned rent of Rs. 1784-4-11 plus cesses, Rs. 154-4-9, the Kabiraj defendants will pay Rs. 976-12-11 as revenue in the Collectorate to the credit of the plaintiffs as per kists of revenue and pay the balance of Rupees 807-8-0 plus cesses, Rs. 154-4-9, as munafa to the plaintiffs according to kists and also interest as mentioned in the patni kabuliat.
3. One Banku Behary who had 1 anna 6 pies share in the patni had mortgaged his patni interest twice. The first mortgagee was Nistarini Debi and the second mortgagees were the Tewaris. The Tewaris brought a suit against their mortgagor and obtained a decree in execution of which they purchased Banku Behari's 1 anna 6 pies share in the patni and obtained delivery of possession. In their character as part purchasers of the patni they were impleaded as parties defendants in Rent Suit No. 24 of 1935. The plaintiffs in that suit got a rent decree against them along with others. On 14th August 1935, which corresponds to some day in Vadra 1340, they sold their patni interest to two ladies, Mankumari and Gouribala. That may or may not be a benami transaction but that fact is not material. We simply recite the same to give a connected history. The material fact, however, is that Nistarini brought a suit, Title Suit No. 6 of 1934, to enforce her mortgage. In that suit she impleaded her mortgagor as also the puisne mortgagees--the Tewaris --as parties defendants. She obtained a decree and in execution thereof purchased on 2nd January 1935 (=18th pous 1341) the mortgaged premises, which as we have already stated, was 1 anna 6 pies share of the patni. The interest of the Tewaris thus came to an end on that date. The sale was confirmed on 22nd March 1935 (chaitra 1341) and she obtained delivery of possession on 9th April 1935. She has not, however, been recognised as a tenant by the plaintiff's.
4. On 18th April 1939 the plaintiffs instituted the suit (Rent Suit No. 1 of 1939) in which this appeal arises. They claim their share of the rent of the patni for the years 1342 to 1345. Defendants 1 to 16 are the Mitters and defendant 17 is Jotindra Mohan Ukil. They have no interest in the patni and have been impleaded on the ground that they were past patnidars. Of them defendants 4 to 6 are the heirs of Banku Behary. Defendants 18 series are the shebaits of a deity, Iswar Madhusudan Jieu Thakur. The deity has 2 as. 6 pies share in the patni. Defendants 22 to 27 are the Tewaris. They have no interest in the patni, their interest having passed by the court sale to Nistarini Debi before the period in claim. The Kabirajes are defendants 28 to 42. They have 10 annas share in the patni. The trustees of Jagadamba Trust Estates who are coplaintiffs in their character as part proprietors of the tauzi, are the owners of the remaining 2 annas share of the patni.
5. The plaintiffs proceed firstly on the basis that 10 annas of the patni which belong to the Kabirajes had become a separate unit by reason of the compromise decree passed in First Appeal no. 136 of 1936. They accordingly pray for a decree for rent for the remaining share against defendants l to 27. They, however, state in the plaint that if the patni be held not to have been split up into two by reason of that compromise decree, then a decree may be passed for the whole of the arrears for 1342-1345, against all the defendants, that is, against defendants 1 to 42.
6. Two sets of written statements are material for this appeal. One has been filed by the Tewaris and the other by the Kabirajes. In their written statement, the Tewaris pleaded that they were not liable to pay any portion of the rent claimed as they had no interest in the patni during the period in suit. The Kabirajes objected to the alternative claim and pleaded that they were separately liable for 10 annas share of the rent on the ground that their share had been separated and was formed into a distinct tenure by reason of the compromise effected in the High Court in First Appeal No. 136 of 1936. The learned Subordinate Judge has overruled the defences of both the Tewaris and the Kabirajes and has passed a decree for the whole of the plaintiffs' claim against all the defendants, including the Tewaris and Kabiraj defendants. Two appeals have been preferred before us against his decree-one No. 59 of 1940-by the Tewaris, and the other, no. 95 of 1940, by the Kabirajes. We will first deal with the appeal filed by the Tewaris. Therein they raise two points: (i) that they are not liable as their interest in the patni had ceased before the period in claim, and (ii) that interest cannot be awarded at more than 6 1/4 per cent.
7. We have already mentioned the fact that they had 1 anna 6 pies share in the patni but they ceased to have any interest in the patni at least from 2nd January 1385, when Nistarini purchased that share of the patni in execution of her mortgage decree. That date corresponds to 18th fous 1341. The claim in suit is from 1342. On general principles the Tewaris would not be liable for the right of the landlords to get rent rests on two foundations, either privity of contract or privity of estate: Jagan Mohan Sarbar v. Brojendra Kumar : AIR1925Cal1056 . An assignee of a leasehold interest is liable to pay rent to the landlord only on the ground of privity of estate: Ram Kinkar Banerjee v. Satyacbaran Jagadamba Loan Co. Ltd. v. Raja Shiba Prosad Singh So the liability of an assignee to pay rent would continue only up to the time that the privity of estate ceases to exist. Admittedly the Tewaris never entered into any contract with the plaintiffs or their predecessors-ininterest to pay rent. They cannot therefore be liable on the basis of a covenant to pay rent nor on the ground of privity of estate as privity of estate ceased when their share in the patni was sold away to Nistarini. The question however is whether there is any provision in the patni regulation which either expressly or by necessary implication affects or modifies those general principles, and if so to what extent. The sections of the patni regulation bearing upon this question are Sections 5 and 6.
8. In the case of the sale of the whole patni the law is settled. The transfer is complete as soon as the deed of transfer is registered but the transferor remains liable to pay rent till the transferee pays the landlord's fee and offers security and his security is accepted. If the zemindar refuses to accept the security offered the transferee has his remedy. He can appeal to the civil Court and if he satisfies the Court as to the sufficiency of the security the zemindar is placed under an obligation to accept it and to give effect to the transfer. The doctrine that liability to pay rent depends upon privity of estate has thus been modified to some extent, inasmuch as the liability of the transferor to pay rent does not cease from the date of transfer but continues till the transferee fulfils the requirements of Section 5, though the title to patni had passed on the registration of the conveyance to the transferee from the date of the transfer: Krishna Chandra v. Dinanath Biswas : AIR1928Cal94 . Tinkari Mukherjee v. Mabima Niranjan Chakravarti : AIR1929Cal108 He thus remains liable to pay rent for a time, i. e., from the date of the transfer till the landlord's fee is paid and security furnished by the transferee, after the privity of estate between him and the zemindar had ceased. The position is the same where the whole patni is sold in execution of a decree, except that in the case of a sale for arrears of patni rent, the purchaser is not under an obligation to pay the fee only.
9. We will however have to examine the position where the sale, either voluntary or in invitum, is only of a share in the patni. The transfer passes title to the purchaser, but the purchaser is not under an obligation to pay the fee to the zemindar or to offer security. He cannot compel the zemindar to recognise him as one of the patnidars. Sections 5 and 6 of the Regulation are inapplicable. He can offer the zemindar fees or offer security, but those acts on his part can at best serve as inducements to the zemindar to recognise him as his tenant. He cannot compel recognition. The position of the purchaser of a part of the patni thus differs materially from the position of the purchaser of the entire patni. These propositions have been laid down in a series of cases beginning with Robert Watson and Co. v. Collector of Zillab. Rajshahye ('69) 13 M.I.A. 160 and ending with Jatis Chandra Pal v. Khirode Kumar : AIR1943Cal319 . This difference in our judgment is an important factor to be taken into consideration in determining the question which we have to decide in this appeal.
10. In the case of a sale of the whole patni, though the liability of the transferor to pay rent may continue for a time after the privity of estate between him and the zemindar had ceased that liability can be put an end to against the will of the zamindar by the transferee paying the landlord's fee, where such fee is payable, and giving security or by compelling the zamindar to accept the security offered through the intervention of the civil Court, where the zamindar had improperly refused to accept it. In the case of a sale of a part of the patni that process is not open to the transferee. It would lead to manifest hardship if we were to hold that the liability to pay patni rent on the part of the transferor would still continue, although he had parted with all his interest in the patni, for it would then be entirely within the power of the zemindar to hold him and his heirs liable for rent forever according to his sweet will throughout the long course of successive transfers by simply withholding recognition of each of the successive transferees. The general doctrine that liability to pay rent (leaving aside the cases of privity of contract, which does not arise in the case before us) depends upon privity of estate has been affected to a certain extent only by the provision of Section 5, Patni Regulation and when that section is made inapplicable by the last paragraph of Section 6 to transfers of a portion of the patni, the reason for continuing the liability of the transferor, who had only a share in the patniafter he had parted with his whole interest disappears. We would accordingly hold that in the case of sales of portions of the patni the liability of the part owner of the patni to pay rent would cease from the date of transfer by which he parts with his entire interest in the patni, unless we are tied down by any decision binding on us. The learned advocate appearing for the plaintiffs-respondents contends that there is a decision of a Division Bench which has taken a view contrary to the view which we have expressed above and we have no option but to follow it or if we differ from it to refer the matter to a Full Bench. The decision that he cites is Sourendra Mohan Tagore v. Sarnomoyi ('99) 26 Cal. 103. In our judgment that case did not decide the point which we have before us, and so far as we are aware the question raised before us is of first impression.
11. A patni or portion of a patni is transferable property. The zamindar has the option of recognising the transferee of a part as his tenant. When he does recognise him, and he does so by either demanding rent from him or suing him for rent, he has the right to get rent from the transferor and transferee jointly. This is the proposition that has been laid down in Sourendra Mohan Tagore v. Sarnomoyi ('99) 26 cal. 103. The facts of that case, however, must be examined closely and the observations of the learned Judges must be read in the light of the facts of that case, Quinn v. Leatham (1901) 1901 A. C. 495. There the patni had been created in 1813. It passed by successive transfers to one Rakhal Das Mukherjee and then by inheritance to Sarat Moni Devi, who was defendant 1 in that suit. Before 1301 B.S. defendant 1 sold 8 annas of the patni to defendant 3, Sourendra Mohan Tagore. The suit for rent was for 1301 B.S., when defendants 1 and 3 were admittedly the patnidars, each having 8 annas share in the patni. The further fact, however, was that defendant 3's name had not up to that time been registered in the office of the zamindar. In Kartick 1302 defendant 3 made a gift of his 8 annas share in the patni to one Danesh Prokash Ganguly. All that was decided in that case was that the zamindar could make defendant 3 jointly liable with defendant 1 for the rent of 1301. In that year there was admittedly privity of estate between the zamindar and defendant 3, for the transfer of a fractional share of a patni is not void. The question which we have to decide would have arisen in that case if the zamindar had sought to make Sourendra Mohan Tagore liable for rent for a period after he had made the gift of his share of the patni to Danesh Prokash Ganguly. We are therefore not faced by any precedent binding on us. We accordingly hold that the Tewaris are not under the liability to pay rent for the period in claim, as they were part owners of the patni and the entire interest they had in patni had ceased before the period in claim.
12. In the view we have taken it is not necessary to decide the second point raised by their advocate. We may however point out that the learned Subordinate Judge has not awarded interest but damages at the rate of 12 1/2 per cent.
13. F. A. No. 95 of 1940.-This appeal is by the Kabirajes and the only point in it is whether the learned Subordinate Judge was right in passing a decree against them jointly with the other defendants on the alternative claim of the plaintiffs. The point depends upon the effect of the compromise decree passed by this Court in First Appeal No. 136 of 1936. We have already recited the material terms there of. There cannot be any doubt that the patni tenure was not split up into two as a result of that compromise, as the persons who had then an interest in the patni, other than the Kabirajes, had not joined in that compromise. A tenure can be split up only by the consent of all the landlords and all the tenants. The Kabirajes accordingly cannot take up the position that the zamindar should have sued them separately for the amount due from them on the basis that they had a separate patni at an annual rental of Rs. 1784-4-11 pies. The plaintiffs were therefore competent to maintain the alternative claim. The effect of the compromise decree, however, is that the plaintiffs cannot hold them personally liable for rent and cesses payable in the share of the other patnidars. The learned Subordinate Judge has not made this reservation in his decree. That ought to be done. The decree of the learned Subordinate Judge is accordingly modified in their favour to that extent.
14. The result is that Appeal No. 59 of 1940 succeeds in full and No. 95 of 1940 in part. The suit against the Tewaris (defendants 22 to 27) is dismissed with proportionate costs to those defendants. The decree as made by the learned Subordinate Judge as against the other defendants must stand with a proviso added to the effect that 'the personal liability of the Kabiraj defendants (28 to 42) would only be for the sum of Rs. 961-12-9 plus 12 1/2 per cent, damages thereon plus costs calculated on the sum of Rs. 961-12-9.
15. The appellants in Appeal No. 59 of 1940, will also get the costs of this Court from the plaintiffs-respondents hearing-fee being assessed at 10 Gold Mohurs. In Appeal no. 95 of 1940 the parties would bear their respective costs in this Court. Let a self-contained decree be drawn up in this Court.