Richardson and Chatterjee, JJ.
1. In this suit the plaintiff, Daulati Bewa, sought to establish her title to an eight-anna share ofa raiyati holding by right of inheritance.
2. It appears that the holding originally stood in the name of Narandi Sheikh, the plaintiff'sfather-in-law. On his death, it descended to the plaintiff's husband and to his brother, thedefendant No. 1. The name of the latter only was recorded as tenant in the landlord's office.Subsequently, the plaintiff's husband died leaving his widow, a minor son and a daughter. Thetwo children also died; and, under the Mahomedan Law, the plaintiff became entitled, as betweenherself and her brother-in-law, to a four-anna 11/2 pies share of the holding. Her suit, if itsucceeds at all, can only succeed to that extent.
3. The only other defendant who need be mentioned is defendant No. 4. She contends that thewhole holding was purchased by her at a sale held in execution of a decree for arrears of rentobtained by the landlord of the holding against the recorded tenant'.
4. In the Court of first instance, the plaintiff obtained, a decree to the extent of her share asabove determined. The decree has been confirmed on appeal by the learned Additional DistrictJudge, and the defendant No. 4 has appealed to this Court.
5. The judgment of the Additional District Judge rests entirely on the ruling of this Court inthe case of Ashok Bhuiyan v. Karim Bepari (1905) 2 C.W.N. 843. It was there held that therebeing no law obligatory on tenants who are not tenure-holders to get their names recorded in thelandlord's sherista for the purpose of perfecting their title, the sale of a jote in execution of adecree for rent obtained against the recorded tenants does not pass the interest of the tenantswhose names are not registered in the landlord's sherista. The case of Nitayi Behari SahaParamanick v. Hari Govinda Saha (1800) I.L.R. 26 Calc. 677 was distinguished on the ground thatin that case there was a tenure and the tenants were bound to register their names in the landlord'ssherista
6. We think, however, that the case of Ashok Bhuiyan v. Karim Bepari (1905) 2 C.W.N. 843has been given a significance more far reaching than.was intended, and that the languageemployed in the judgment means no more than that a landlord is not justified in treating theregistered tenant of a raiyati holding as the sole tenant merely because his co-sharers in theholding are not registered. The principle of representation is not referred to and there is nonecessary implication that principle cannot apply to a raiyati holding. There is nothing in thecase which prevents the whole body of tenants of a raiyati holding electing to treat one of theirnumber as their representative in their dealings with the landlord. But registration is noteverything. The fact that only one tenant is registered is merely an item in the evidence upon thequestion whether he is or is not the representative tenant qua the landlord.
7. In further support of our view of Ashok Bhuiyan's case (1905) 9 C.W.N. 843 we maymention that no reference is made to previous cases in which the principle of representation hasbeen applied or treated as applicable to raiyati holdings, for instance: Mali Lal Poddar v.Nripendra Nath Roy Chowdhury (1897) 2 C.W.N. 172 Ananda Kumar Naskar v. Hari DassHaldar (1900) I.L.R. 27 Calc. 545, Rupram Namasudra v. Iswar Namasudra (1902) 6 C.W.N.302. Rajani Kant Guho v. Uzir Bibi (1902) 7 C.W.N. 170. There is also the subsequent case ofAjraz Mollah v. Kulsumannessa Bibee (1905) 10 C.W.N. 176.
8. Moreover, it may be observed that under the present rent law, as enacted in the BengalTenancy Act, the distinction between tenures and raiyati holdings in the connection we are nowconsidering, has been largely obliterated. It was pointed out in the case of Ambika Pershad v.Chowdhry Keshri Sahai (1897) I.L.R., 24 Calc. 642, that under the Bengal Tenancy Act a suit by araiyat for the registration of his name in the landlord's sherista cannot be maintained because it isno longer compulsory for the zemindar to register the name of any tenant in his sherista. The Act,it is said, provides for the official registration of transfers of the rights of permanent tenure-holders and raiyats holding at fixed rents. But the transfers of occupancy rights are not soregistered and there is no provision of law by which they can be registered in the landlord'ssherista. This case was referred to in the case of Moti Lal Singh v. Sheik Omar Ali (1898) 3 C.W.N. 19, where it was held that a se-patnidar is not entitled to sue a dar-patnidar to compel him toregister his name in his sherista as the transferee of a se-patni tenure, but it is open to him to suefor a declaration of his right as the tenant of the dar-patnidar. The following passage may bequoted from the judgment:' It is clear from a ruling of this Court in the case of AmbikaPershad v. Chowdhry Keshri Sahai (1897) I.L.R. 24 Calc. 642, that such a suit is not maintainableunder the provisions of the Bengal Tenancy Act. The question then arises whether it ismaintainable under the provisions of the Patni Regulation (VIII of 1819) or of any other Statute.On the whole, we are of opinion that it is not. There is no section in Regulation VIII of 1819expressly giving a se-patnidar a right to compel his superior talukdar to register his name or aright of suit in case of his refusal to do so. We do not think that Sections 5 and 6 of thatRegulation give the plaintiff any such right, the word patnidar in these sections, in our opinion,not including a se-patnidar and the words other superior not being applicable to a dar-patnidar,Under the former rent law, a se-patnidar or other dependent talukdar had a right to compel hissuperior to register his name in his sherista under Section 27 of Act X of 1859 and Section 26 ofAct VIII (B.C.) of 1868, but not under the Patni Regulation. Under the former Act, the dependenttalukdar could apply to the Collector in case of the superior tenant's refusal to register his name,under the latter Act, it would appear he might bring a suit in the Civil Court. However this maybe, both these Acts have now been repealed in Bengal, and therefore it appears to us that theplaintiff has now no right to bring such a suit as the present, and as he cannot bring such a suitunder the provisions of the Bengal Tenancy Act, this appeal must be decreed and the suitdismissed on this ground. It was no doubt open to the plaintiff to sue for a declaration of his rightas the defendant's tenant, but he has not framed his suit in this way.'
9. The provisions of the Bengal Tenancy Act, which are referred to in the former of these twocases as introducing a system for the official registration of permanent tenures, are contained insections 12 to 18, and it is doubtful whether these provisions were intended so much for thebenefit of the superior landlord as for the protection of the tenants under the tenure holder.Section 16, for instance, provides that a person becoming entitled to a permanent tenure bysuccession shall not be entitled to recover, by suit, distraint or other proceedings, any rent payableto him as the holder of the tenure, until the Collector has received the notice and fees referred toin the last foregoing section.
10. In the present case the learned Additional District Judge has expressly and, we think,wrongly refrained from considering the question whether the recorded tenant represented theholding in dispute. He is also, we think, mistaken in saying that the case of Rajani Kant Guho v.Uzir Bibi (1902) 7 C.W.N. 170, 'enunciates the principle that the landlord is not bound to lookbeyond his record.' The question under the present law is always one of fact, whether therecorded tenant represents the holding or not.
11. In the view we take, the decree of the Additional District Judge must be set aside, and thecase remanded to him for the purpose of being re-heard with reference to the observations whichwe have made.
12. Costs will abide the result.