B.K. Mudherjea, J.
1. This appeal is on behalf of defendants 1 to 3 and it arises out of a suit commenced by the plaintiffs for setting aside a patni sale under Section 14 of Regn. 8 of 1819. The patni was created by a document dated 20th March 1876, executed by one Nanda Kumar Banerji, the ancestor of the appellants in favour of Jamradannessa, who was the predecessor-in-interest of defendants 4 to 10 in the present suit. There was a previous sale of the patni, under the Patni Regulation, on 15th May 1933 and it was purchased by one Khirod Bashini Devi. The purchaser did not furnish any security nor got her name mutated in the sherista of the landlord and on 18th June 1935, she executed a kobala in respect of the patni in favour of plaintiff 2, Ahamad Ali Khan and defendant 11, Gadadhar Chanda, for a consideration of Rs. 4050 only. It was stated in the kobala that the shares of these two purchasers in the patni were 9 annas 1 ganda and 6 annas 19 gandas respectively. Defendant 11, who is an officer of Hydar Ali Khan Pani, defendant 5 and his cosharers, was said to have purchased this share in the patni as a benamidar of plaintiff 1, Bilquis Khanam, who is the wife of a son of Hydar Ali Khan Pani and he executed a deed of release in favour of the lady on 15th December 1935. Plaintiffs 1 and 2 thus jointly acquired the entire interest in the patni and it was alleged in the plaint that they took possession of the tenure and gave notice of their purchase by registered post to the zemindar defendants. These defendants, however, ignored the purchase of the plaintiffs and as there had been default in the payment of patni rent they started a proceeding for the sale of the tenure under Regn. 8 of 1819, (being case No. 47 of 1936/1937) in the middle of April 1936 and on 15th May 1936 the patni was sold and purchased by the zemindars themselves for a sum of Rs. 5382. It is to set aside this sale that the present suit was brought. The validity of the sale was challenged by the plaintiffs on a large number of grounds.
2. It was urged that the sale was without jurisdiction; firstly because defendants 1 to 3 had not their names registered in the Collec-torate with regard to all the touzis under which the patni was held, and secondly because the patni comprised interests other than permanently settled zemindary interests and with regard to the lands of one mouza there was a patni already existing. The other allegations were that the proceedings under the Patni Regulation were irregular being taken against the old patnidars who had no longer any interest in the tenure and the petition for sale as well as the notices were defective, there being misdescription of the property and misstatement of the arrears of rent due in respect of the patni. The plaintiffs further alleged that there was no service of notices in any of the three places as contemplated by Section 8 of the Patni Regulation and because of these irregu-laritie3 the property was knocked down for a grossly inadequate price. The reliefs claimed by the plaintiffs were of a two-fold character. They prayed that the patni sale might be set aside and they might be allowed damages to the extent of Rs. 668. There was a further prayer for recovery of possession in case the Court found on evidence that the plaintiffs were dispossessed by defendants 1 to 3; but that prayer was subsequently deleted.
3. The suit was contested by defendants 1 to 3; the other defendants did not appear though duly summoned. The defence of the zemindar defendants in substance was that the suit was bad for misjoinder of parties and causes of action and that the plaintiffs had no right to bring the suit they being mere benamidars of the Khan Panis who were the old patnidars. It was asserted that the sale was neither without jurisdiction nor was it vitiated by any irregularity and there was due publication of the notices as required under Section 8 of the Patni Regulation. It was further pleaded that the plaintiffs were estopped from denying the right of these defendants to proceed under Regn. 8 of 1819 and there was no ground either for setting aside the sale or for awarding damages to the plaintiffs.
4. The Subordinate Judge who heard the suit decided in favour of the plaintiffs. The findings arrived at by the trial Judge in substance were that the plaintiffs were not the benamidars of the Khan Panis, that defendants 1 to 3 not being registered proprietors of all the touzis in respect of which the patni was created were not competent in law to avail themselves of the provisions of the Patni Regulation and that there being an existing patni with regard to the lands of one of the mouzas the patni was not saleable at all under the Regulation. The Subordinate Judge further found that there was no proper service of notice as is required under Section 8 of the Patni Regulation. The result was that the sale was set aside, though the claim for damages was disallowed. It is against this decision that the present appeal has been preferred. Mr. Pakrashi, who appears for the appellants, has put forward a threefold contention in support of the appeal. His first argument is that the plaintiffs are benamidars of the old patnidars and they having no interest in the patni are not competent to maintain a suit for setting aside the sale under Section 14 of the Patni Regulation. The second ground urged is that the Court below should not have held that the sale of the patni was void for want of jurisdiction and its conclusions on this point are both unwarranted by facts and unsound in law. The third ground taken is that there was due service of notice under Section 8 of the Patni Regulation and there was no irregularity which vitiated the sale.
5. Now, so far as the first ground is concern, ed, the appellants' case is that neither of the two plaintiffs has a beneficial interest in the patni the sale of which is sought to be set aside; plaintiff 1 was a mere benamidar for the chota taraf of the Khan Panis' estate of which her father-in-law Hyder Ali Khan Pani was the major cosharer while plaintiff 2 was a benamdar of the burra taraf which was represented by Masud Ali Khan Pani, defendant 4. (After going through the evidence his Lordship proceeded.) But on the other hand the defendants have adduced no evidence to show that the consideration for the purchase was paid not by Bilquis Khanam but by her father-in-law or the chota taraf of the Khan Panis' estate. The evidence on her side which stands unrebutted goes to show that she had sufficient funds of her own wherewith she could make the purchase. It is true that the acts of possession which she exercised after her purchase were exercised through officers of the chota taraf of the Panis' estate but there is per se nothing unnatural or unusual in it and a daughter-in-law of the family could very well entrust the affairs of management to the officers of her father-in-law's estate. The matter, therefore, is not carried beyond suspicion and as the burden lies upon the defendants to show that this apparent state of things did not represent the real state we are unable to hold that plaintiff 1 was not a real purchaser.
6. So far as plaintiff 2 is concerned, the circumstances indeed give rise to a greater suspicion. (His Lordship considered the evidence and proceeded.) We find difficulty in holding that the realisations of rent which were made by officers of the burra taraf were really made on behalf of plaintiff 2 and that plaintiff 2 was a genuine purchaser. It is not, however, necessary for our purpose to decide this matter finally. Bilquis Khanam, as we have said above, has not been proved to be a benamidar and even if Mr. Pakrashi is right in his contention that a benamidar cannot maintain a suit under Section 14 of the Patni Regulation, she alone was quite competent to maintain the suit and pray for annulment of the patni sale in its entirety. I am also incapable of holding that an ostensible purchaser of the patni who may be a benamidar for somebody else is incompetent to institute a suit under Section 14 of the Regulation. There is nothing in Section 14 which makes the principle enunciated in Gur Narayan v. Sheo Lal Singh ('18) 5 A.I.R. 1918 P.C. 140 inapplicable to such cases. Mr. Pakrashi argues that a landlord cannot be compelled to recognise anything like trust in relation to transfer of the tenancy right. If that is so the ostensible purchaser would have to be taken as the real purchaser and no question of benami would at all arise. The plaintiffs are undoubtedly in the position of unrecognized tenants. The landlords might refuse to recognize them as tenants so long as they did not furnish security or comply with the other requirements of the Patni Regulation. But Mr. Pakrashi does not dispute, what has been laid down in several cases, that even an unrecognized holder of a patni tenure is able to sue for setting aside a sale. The first contention of Mr. Pakrashi therefore fails.
7. The second contention put forward by Mr. Pakrashi involves consideration of two different points. The first point is whether the zemindars had their names registered under the Land Registration Act in respect of all the touzis under which the patni was held and if not whether the omission to have their names registered in respect of one or more of the touzis would preclude them from selling the patni under the provisions of the Patni Regulation. The second point is whether there was a previous patni created by the zemindars in respect of some of the lands and whether that would make the present patni unsaleable under the Patni Regulation. As regards the first point the finding of the Subordinate Judge is that the zemindar defendants were able to prove that they had their names registered in regard to all the touzis with the exception of touzi No. 1831 of the Rajshahi Collectorate. The case of the appellants was that this touzi was transferred to Pabna and a new number of the Pabna Collectorate was assigned to it, which they were unable to trace out. This explanation was found to be unsatisfactory by the Court below and we may take it for purposes of this case that the names of the zemindars were not registered in regard to touzi No. 1881 of the Rajshahi Collectorate. The question is whether that would stand in the way of their being able to sell the patni by availing themselves of the provisions of the Patni d Regulation. Section 8 of the Regulation lays down that 'zemindars' that is, 'proprietors under direct engagement with the Government' shall be able to apply for sale of the tenure. This means that the applicants must be proprietors who hold their estates directly under Government and pay revenue to them. This does not by itself imply that the zemindar cannot sell the tenure unless his name was registered under the Land Registration Act of 1878 and, as a matter of fact, this Act was not in existence when the Patni Regulation was passed. Registration is evidence of possession and not of title and unless a person is already a proprietor he is not entitled to have his name registered under the Land Registration Act. It is possible to say, however, that as under Section 78, Land Registration Act, the tenant is not bound to pay rent to any person claiming rent as proprietor unless his name was registered under the Land Registration Act, a similar disability might be imported into the provisions of the Patni Regulation so far as it lays down a procedure for realisation of rents due to proprietors. This, in fact, was the view taken by the late Sarada Charan Mitter in his Tagore Lectures on the Land Laws of Bengal. It is observed by the learned author that the
rule as to who may apply for sale under the Regulation must be taken to be the same as in suits for arrears of rent where tenure is sought to be made liable : vide Edn. 2, page 164.
8. If this principle is invoked in the present case the appellants, in my opinion, can very well rely upon Section 81, Land Registration Act. Admittedly, there was a contract here between the predecessors of the parties in which there was a condition that the patni would be sold under the provisions of the Patni Sale Laws for realisation of arrears of rent and the zemindars can rely upon this condition in the contract for the purpose of realising rents and Section 78, Land Registration Act, would not, in that event, stand in their way. It has been held in a series of cases that the contract referred to in Section 81, Land Registration Act, is not confined to a contract between the immediate parties and it includes a contract between their predeces-1 sors as well: vide the cases in Satyendra Nath Mondol v. Nandalal Choudhury ('36) 40 C.W.N. 588; Prabodh Chandra v. Harish Chandra ('21) 8 A.I.R. 1921 Cal. 145; Masbahuddin Ahmed v. Abdul Borkat ('21) 8 A.I.R. 1921 Cal. 303 though a different view was expressed in Iswar Chandra Bera v. Kali Charan Santra ('18) 5 A.I.R. 1918 Cal. 303. At any rate, it seems to us that if the view taken by the Court below is correct, it would cut at the very root of the plaintiffs' title. If this patni sale is void by reason of non-registration of the names of the proprietors in regard to one of the touzis, the previous sale in favour of Khirod Bashini must be deemed to be void also, as the position was exactly the same at that time. The plaintiffs, in that event, would not acquire any title by their purchase and, to quote the language of the Judicial Committee in Robert Watson & Co. v. Collector of Rajshaye ('69) 13 M.I.A. 160 they would not have the requisite interest which would entitle them to dispute the sale.
9. On the other point also, I am unable to agree with the decision of the trial Judge. The patni as has been said already, includes fractional shares in a considerable tract of land comprised in several touzis and spread over several districts. The finding of the Court below is that with regard to a share of the lands situated in mouza Gadudaha appertaining to touzi No. 868 of the Bogra Collectorate, there was a previous patni created by the zamindars in favour of certain Poddars. As there could be no patni' over a patni, the present patni even so far as it related to the vast quantity of lands which were situated outside the said mouza was held to be outside the Regulation and incapable of attracting its provisions. I do not think that this conclusion is sound. We have got no materials to show the exact nature and incidents of the tenure created in favour of the Poddars but assuming that it was a patni in the ordinary sense of the word we do not think that the creation of an intermediate interest between the zamindars and the existing patnidars is by itself void and ineffectual. The matter was discussed by this Court in Durgakanta Majumdar v. Surendra Prosad Lahiri Chowdhury ('37) I.L.R. (1937) 1 Cal. 788 and it was held that such interest would be perfectly lawful provided that it did not operate in derogation of the rights of the previous patnidar. When a zamindar creates a patni he has still a reversion left in him and he can certainly grant away a portion of his remaining interest and create a tenure intermediate between himself and the existing patnidar. Though the term 'patni' may introduce some confusion in the ordinary grades and nomenclature of sub-infeudation in this province there is nothing illegal in it.
10. The second patnidar cannot be said to have an interest co-ordinate with the first patnidar, for the zemindar after creating a patni could deal only with the interest that was left in him; and though the first patnidar could never become a darpatnidar under the second patnidar the latter may be a patnidar in the true sense of the word as between him and the zemindar. It is true that all the incidents of a patni tenure could not attach to such an intermediate interest if it is created by the zemindar. But, if there is a stipulation in the contract between the zemindar and the tenure-holder that the tenure would be liable to be sold under the summary process provided in the Panti Regulation such stipulation would be valid. It is not disputed that in this case there was such a stipulation and although the rights of the poddars could not be affected in any way by the sale of the patni the sale cannot be said to be invalid. I may further point out that the same difficulty that arose with regard to the first point would arise in this case also. As the patni is not governed by the Patni Regulation at all the sale to Khirod Bashini must be held to be void and the plaintiffs by their purchase could not acquire any interest in the patni property. I hold, therefore, that the Court below was not right in holding that the sale was void for want of jurisdiction. I now come to the third and last contention raised in this appeal, which relates to the question of due service and publication of notices under Section 8 of the Patni Regulation. As was held by the Privy Council in Maharaja of Burdwan v. Tara Soondari Debi ('83) 9 Cal. 619:
the due publication of the notices prescribed by Regulation 8 of 1819 forms an essential portion of the foundation on which the summary power of sale is exercised, and the Regulation makes the zemindar who institutes the proceeding exclusively responsible for its regularity.
11. Now, the story of the zemindars regarding the publication of the notices is as follows : The application for sale was filed in the Collectorate on 15th April 1936, and five notices were filed along with it. On the following day, that is to say, on the 16th, the Peshkar gave back four notices to the filing pleader and kept one for being hung up in the Collectorate. Of the four notices that were received back Amiya Bhattacharya, the pleader, for the appellants sent one to Brojendra Babu at the sadar office at Murapara with a covering letter which is marked Ex. D and the other three were sent by registered post to Abhoy Das the Naib of the zemin-dars at Sahajadpur, the Naib being present there already to serve notices in the mofussil. The story of Abhoy Das, who is D.W. 9, is that on 17th April 1936, he first went to the thana at Sahajadpur and had the istahar sealed with the seal of the police officer. From that place he went to the cutcheri of the Khan Panis accompanied by Naren Banerjee, Hridoy Bhattacharji, Haran De and Girish Deb and offered the istahar to the two Naibs of the burra taraf and chota taraf respectively. They refused to accept the same, and upon that it was hung up at the door of the cutcheri building in the presence of the persons named above. Then the Naib went to the bazar at Monirampur and served another copy of the notice on the southern door of the golaghar of one Amulya Khan who had a shop in the bazar. As witnesses to this service he took the signatures of Amulya Khan, Jadunandan Singh and Bejoy Bhowmik of that locality. This istahar is marked Ex. E-2. The Naib then proceeded to Serajganj on the same evening and on the following day at 12 noon he swore an affidavit in the presence of the Munsif of that place. This affidavit is Ex. G.
12. Now, as regards the service of the notices in the cutcheri of the Khan Panis, the Judge's finding is that it was ineffectual, the cutcheri not being situated in the defaulter's land. This is certainly a correct view to take which receives support from the pronouncement of the Judicial Committee in Maharani of Burdwan v. Murtunjoy Singh ('87) 14 Cal. 365. But then there was a service of the notice also at the Monirampur bazar which was within the defaulting patni and the Subordinate Judge has held expressly that it was an important town or village within the meaning of Section 8 of the Regulation. (After considering the evidence his Lordship proceeded.) If it is established that notices have been duly served in accordance with the provisions of Section 8 of Regn. 8 of 1819 it is really immaterial that the witnesses who verified the service were not all substantial men. This part of the section has been held by our Court to be merely directory and not mandatory : vide the cases in Sona Beebee v. Lall Chand Chowdhury ('68) 9 W.R. 242 and Bhugwan Chunder Dass v. Sudder Ally ('79) 4 Cal. 41.
13. In my opinion, the evidence shows conclusively that there was due service of notice in the mofussil. As regards the service of notice in the sadar sherista of the zamindars, the evidence adduced by the defendants stands unrebutted. (After considering r the evidence of the service of notice his Lordship proceeded.) Speaking for myself, I see no reason to disbelieve Profulla, D.w. 11, and relying upon him I hold that the application and notices under Section 8 of the Patni Regulation were duly hung up in the notice board of the Collectorate, and these were the papers which were taken down by the Peshkar and read out at the time of the sale. In my opinion therefore the zamindars have discharged the burden which lay upon them of proving proper service of notice under Section 8 of the Patni Regulation. The result is that I allow the appeal and set aside the judgment and decree of the Court below. The plaintiffs' suit will stand dismissed. Defendants 1 to 8 will get their costs of this Court as well as of the Court below.
14. I agree that this appeal should be allowed and I concur with the order proposed by my learned brother. The appeal is by defendants 1 to 8 in a suit for setting aside the sale of a patni taluk held under Regn. 8 of 1819. The competence of such a suit is provided for by the Regulation itself in its Section 14, which runs as follows:
It shall, however, be competent to any party desirous of contesting the right of the zamindar to make the sale, whether on the ground of there having been no balance due, or on any other ground to sue the zamindar for the reversal of the same, and, upon establishing a sufficient plea, to obtain a decree with full costs and damages.
15. The plaintiffs in the present case contest the right of the zamindar to make the sale on the allegations which raise the following grounds : (1) There was no balance due, inasmuch as the plaintiffs' obligation to pay the rent was released by Section 78, Land Registration Act (B.C. Act 7 of 1876), the defendants-proprietors not having got their names registered in the Collectorate under that Act. (2) There were the following other defects, each of which, if established, would be a sufficient plea within the meaning of the section - (a) the petition under Section 8 of the Regulation was not stuck up in the Collectorate with the requisite notice; (b) no notice was stuck up at the sadar cutchery of the zamindar himself; (c)(i) no notice was published at the cutchery or at the principal town or village upon the land of the defaulter, (ii) the imperative provisions of the Regulation in respect of the procuration of attestation of the publication were not complied with.
16. As regards grounds 2 (a), (b) and (c)(i) specified above, it is now settled that these relate to the mandatory provisions of the Regulation, and if established, each one of them without anything more would be a sufficient plea, entitling the plaintiffs to a decree reversing the sale. The Regulation grants a somewhat unusual power to the zamindars. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it is neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred. The Regulation directs that the petition and notices shall be published at the specified places in the specified manner and expressly makes the zamindar exclusively answerable for the observance of the prescribed forms. A rigorous observance of these regulations is essential to the acquisition of the right to sell the tenure.
17. But the defendants in this case did comply with these regulations. As has been pointed out by my learned brother, they have established beyond doubt that the requisite publications were duly made. My learned brother has discussed the evidence on the point and I respectfully concur with the conclusion arrived at by him. As regards ground 2(c)(ii), the requirements of the Kegulation in this respect are not mandatory, Sona Beebee v. Lall Chand Chowdhury ('68) 9 W.R. 242 (Sir Barnes Peacock C.J, and Jackson J.); Ram Sabuk Bose v. Monmohini Dossee ('74) 2 I.A. 71 at p. 77; 10 I.A. 198 at p. 21 and Maharani of Burdwan v. Murtunjoy Singh ('87) 14 Cal. 365 at p. 36. The regulations relating to the procuration of attestation of the publication by three substantial persons are rules for securing the evidence by which the observance of the mandatory requirements is to be proved. Their non-observance may give rise to some difficulty in proving the observance of the essential requirements. But beyond this, any noncompliance with these provisions will not, by itself, be a plea sufficient for entitling the plaintiffs to a decree reversing the sale. In our opinion there has been substantial compliance with the requirements of the regulation in this respect.
18. As regards the first ground, it is not disputed that the balance claimed was the balance left unpaid by* the patnidars. Here there is no dispute regarding the factual situation. The only question is whether Section 78, Land Registration Act, in any way affected the respective rights and liabilities of the parties. The plaintiffs further plead that the tenure in question is not a patni taluk within the meaning of Regn. 8 of 1819 at all inasmuch as some of the lands comprising the present tenure (namely, Mouza Gadudaha appertaining to Touzi No. 868 of Bogra Collectorate which is present Touzi No. 2187 of Pabna Collectorate) had already been let out in patni to a third party before the creation of the present tenure, and there cannot be a patni over a patni.
20. Besides meeting the case of the plaintiffs, the defendants plead that the plaintiffs are mere benamidars of the Khan Panis and as such, they themselves have no interest, legal or equitable, in the patni. Consequently the suit at their instance is not competent. The following four questions of law arise in this case from the decision of the learned Subordinate Judge : (1) Whether a benamidar can maintain an action under Section 14 of Regn. 8 of 1819 for setting aside the sale of a patni held under the Regulation? (2) Some of the lands comprising the present tenure having already been given in a prior patni to a third person, whether the present tenure can at all be a putni within the meaning of Regn. 8 of 1819? (3) Whether, when the patni is under several different estates of the same proprietors and they have got their names registered under the Land Registration Act in respect of some of these estates and not in respect of the others, the provisions of Section 78, Land Registration Act, will be of any avail to the patnidar? (4) Whether, when the patni is proved to have been created by a written contract between the predecessor-in-interest of the present proprietor and the predecessor-in-interest of the present patnidar, Section 81, Land Registration Act, shall protect the present proprietor from interference by Section 78 with his right to realise the rent of the patni? In support of the view that a benam-dar of the real tenant cannot take an action under s, 14 of the Regulation, the, appellants rely (1) on the word 'party' in Section 14 which enacts:
It shall, however, be competent to any party desirous of contesting the right of the zemindar to make the sale...to sue the zemindar,...
and (2) on the decision of the Judicial Committee in Robert Watson & Co. v. Collector of Rajshaye ('69) 13 M.I.A. 160 where their Lordships observed:
Without laying down any general rule as to the degree of interest whioh might entitle a party to impeach the sale of a putnee taluk under Regn. 8 of 1819, their Lordships are of opinion that the appellants, who have not even an equitable interest in the taluk, have failed to show that they have acquired that interest in the taluk which entitles them to dispute the sale in question.
21. According to the appellants the words 'any party' as used in the section are of much narrower import than the words 'any person;' and the word 'party' means and refers to only those persons who have some interest in the putnee, and, who, therefore, might take part in the proceeding, either making payments on the service of notices under Section 8 or by proceeding under Section 13 of the Regulation. According to them a mere benamdar is nowhere in the Regulation, and he is not within this word 'party.' He has no interest either equitable or legal. He is only a name and nothing else. It may be that the real tenant can proceed under Section 14 of the Regulation using this assumed name. But that is not the case here. The real tenants are also parties to this suit and they disclaim any interest either in the suit or in the patni. The plaintiffs respondents strongly rely on Gur Narayan v. Sheo Lal Singh ('18) 5 A.I.R. 1918 P.C. 140, and the learned Subordinate Judge upheld the contention of the plaintiffs relying on this decision of the Judicial Committee. The learned Subordinate Judge, however, found as a fact that the plaintiffs were not benamidars of anybody but were the real purchasers of the patni. As we accept this finding as correct, at least so far as plaintiff 1 is concerned, the question of law does not at all arise and we need not give our decision on the point. I, however, feel inclined to the view that the principle of the decision in Gur Narayan v. Sheo Lal Singh ('18) 5 A.I.R. 1918 P.C. 140 shall apply to a case like the present.
22. As regards the second question, the decision of a Division Bench of this Court to which my learned brother Mukherjea J., was a party in Durgakanta Majumdar v. Surendra Prosad Lahiri Chowdhury ('37) I.L.R. (1937) 1 Cal. 788 supports the view that such a tenure can be a patni within the meaning of the Regulation and I respectfully agree with this view. In giving the historical origin of the patni tenures, the preamble to the Regulation gives its character thus: (1) it is directly under a zemindar under direct engagement with Government; (2) it is a taluk created by the zemindar to be held (a) at a rent fixed in perpetuity, (b) by the lessee and his heirs for ever; (3) the tenant may be called upon to furnish collateral security, (a) for the rent, and (b) for his conduct generally or he may be excused from this obligation at the zemindar's discretion; (4) by the terms of the engagements interchanged it is provided (a) that the case of an arrear occurring, the tenure may be brought to sale by the zamindar, and (b) if the sale do not yield a sufficient amount to make good the balance of rent at the time due, the remaining property of the defaulter shall be further answerable for the demand. Section 3 of the Regulation declares such patni tenures valid. All these requirements are present in the case of the present tenure. The only question is whether, when a zemindar creates a patni tenure in respect of some land, he retains any interest in himself which again can be the subject-matter of a tenure under him. In my opinion, the zemindar after creating a patni still retains sufficient interest in the shape of the right to the rent, and perhaps right to the reversion, which interest itself can be the subject of another tenure, still leaving a remnant of interest to the zemindar. The new tenure may have all the characters of a patni and thus may be a patni. Only by its creation the zemindar cannot affect the rights and the privileges, if any, of the holder of the old tenure. As regards the other questions, the respondents rely on (1) section 78, Land Registration Act, (2) on the decisions of this Court in Dhoronidhur Sen v. Wajibunnissa Khatun ('89) 16 Cal. 708n; Bhugwandas v. Raghunath Sahai ('10) 6 I.C. 563 and Iswar Chandra Bera v. Kali Charan Santra ('18) 5 A.I.R. 1918 Cal. 303 and (3) on a certain passage in Mitra's Tagore Law Lectures on Land Laws of Bengal where the learned Professor says:
Only the recorded proprietor, or proprietors jointly, or a common manager whose name is duly registered, may make the application. Registration of the proprietor's name under Act 7 (B.C.) of 1876 is, of course, absolutely necessary to entitle him to any relief under the Regulation. The rule as to who may apply for sale under the Regulation must be taken to be the same as in suits for arrears of rent, where the tenure is sought to be made liable.
23. The relevant provisions of the Regulation are contained in Sections 3, 8 and 14. There is no doubt that defendants 1 to 8 are the proprietors under direct engagements with the Government within the meaning of Section 8. It is not disputed that upon the tenure the rights of selling or bringing to sale for an arrear of rent had been specially reserved by stipulations in the engagements interchanged on the creation of the tenure. The contention of the plaintiff-respondents is that 'no arrear could occur upon the tenure' in this case and that 'no balance could be due' within the meaning of the Regulation because of the provisions of Section 78, Land Registration Act, which destroyed the obligation to pay on the part of the patnidar by reason of the non-registration of the defendant's name as proprietor. Section 78, Bengal Land Registration Act (Bengal Act 7 of 1876), lays down that
no person shall be bound to pay rent to any person claiming such rent as proprietor of an estate unless the name of such claimant shall have been registered under this Act.
24. The section has been construed as contemplating a tenancy under a single estate. When the tenancy is under several estates, the owners of these estates claim the rent as proprietor of these several estates. Unless none of the claimants shall have been registered under the Act, the section shall not apply. In the present case, the tenancy in question is admittedly under several different estates, namely Touzi Nos. 238, 1851 and 2187 of the Pabna Collectorate, and 2324 and 1831 of the Raishahi Collectorate. The names of the claimants have been registered under the Act in respect of Touzi Nos. 288, 1851 and 2187 of the Pabna Collectorate and Touzi No. 2324 of Rajshahi Collectorate, but have not been so registered in respect of Touzi Ho. 1831 of the Rajshahi Collectorate. At the Astam proceedings in question defendants 1 to 3 were the persons claiming the rent. They claimed the rent as proprietors of Touzi Nos. 238, 1851 and 2187 of the Pabna Collectorate, of No. 2324 of the Rajshahi Collectorate as also of Touzi No. 1831 of the Rajshahi Collectorate. As their claim could be ascribed to their character as proprietors of the touzis in respect, of which their names had been registered, Section 78 would not have debarred them from claiming the rent, simply because their claim as proprietors of Touzi No. 1831 of the Rajshahi Collectorate might not have been sustainable. The section does not at all apply to a case like the present where there is one tenancy under several estates. As the section stands, the bar imposed by it applies only where (1) the tenancy is under one estate, (2) the claim to rent is in the character of a proprietor of that estate and (3) the name of the claimant has not been registered under the Act in respect of the estate.
25. Section 78, Land Registration Act, is indeed a penal provision in aid of the provisions of Section 38 of that Act. Like all other penal provisions, it should, in my opinion, be strictly construed; and it has always been construed by this Court so as to limit its mischief only to the cases where the tenancy is under one single estate : Rakhaldas Addy v. Prodyot Kumar Tagore ('10) 6 I.C. 121 and Nripendra Nath v. Dharendra Narayan : AIR1928Cal115 . Nripendra Nath v. Dharendra Narayan : AIR1928Cal115 (Sir George Rankin, C.J. and D.N. Mitter, J.) was an appeal under the Letters Patent from the judgment of Majumdar, J. The plaintiff in this case was one of the several co-owners of four revenue paying estates with separate touzi numbers. The whole of the area of these four touzis had been settled in talukdari right with the defendants for a consolidated rent of Rupees 179-2-8. The plaintiff was registered in the Collectorate as having-4-8 share in three of the touzis and-0-19 1/4gds share in the other. In the suit he claimed rent on the footing that he had-4-12gds share in each of the touzis. His share in the touzis was found to be as registered in the Collectorate. It was held that Section 78(2), Land Registration Act, as it then stood did not help the plain tiff in this case as Section 78 of the Act applied only to the case of a holding under the one single estate. Rankin C.J. observed:
The proposition that the section has no application to cases where the land in possession of the tenant is comprised in more than one estate is a sound proposition, particularly as regards the second part of section 78.
26. Later on he said:
Section 78 gives a certain sanction inducing people to make sure to register their interests, but it may well be that the Legislature has thought it sufficient sanction if in all cases where there are tenancies confined to one revenue-paying estate the proprietor is apt to lose what he does not register.
27. The learned Judges followed the decision in Rakhaldas Addy v. Prodyot Kumar Tagore ('10) 6 I.C. 121 (Mookerjee and Tunon, JJ.). In the last named case the lands were comprised in seventeen revenue-paying estates. The plaintiff was registered under the Land Registration Act as the proprietor in respect of one of these estates only. The books of the Collector showed that a two annas thirteen gandas odd share of the entire land was comprised within this estate. On the basis of these books, it was contended by the defendants that the plaintiff was entitled to realize from them only a share of the rent precisely proportionate to the share of the lands comprising the estate of which the plaintiff was the recorded proprietor. The defendants relied on Section 78, Land Registration Act. The plaintiff claimed a four annas share of the rent on the strength of an amicable arrangement among the owners of the several estates. In overruling the contention of the defendants, Mookerjee J. observed:
A close examination of the section, however, makes it reasonably plain that it has no application to cases where the land in possession of the tenant is comprised in more than one. Section 78 provides that no person shall be bound to pay rent to any person claiming such rent as proprietor of an estate in respect of which he is recquired by the Act to cause his name to be registered, unless the name of such claimant shall have been registered under the Act. The section further provides that no person being liable to payment to two or more such proprietors holding in common tenancy shall be bound to pay to any one such proprietor more than the amount which bears the same proportion to the whole of such rent as the extent of the interest in respect of which such proprietor is registered bears to the entire estate. It is clear that the proprietor mentioned in this section is the proprietor of one estate within the ambit of which the lands in possession of the tenants are comprised. The Legislature had not in view the contingency which has happened in the present case, namely a case where the lands in occupation of the; tenants are comprised in a number of estates in one or more of which alone the plaintiff is interested.
28. The above cases are certainly authorities for saying that if defendants were the registered proprietors of the first group of touzis named above and another 'X' were the proprietor of Touzi No. 1831 of the Rajshahi Collectorate without the registration of his name, then (i) if by any arrangement between the defendants and 'X', the defendants became entitled to realize the entire rent, their right to realize the same would not have been affected by Section 78, Land Registration Act : Rakhaldas Addy v. Prodyot Kumar Tagore ('10) 6 I.C. 121. It follows from this that (ii) if the defendants and 'X' together instituted a suit for rent, the claim would not have been defective by reason of Section 78, Land Registration Act, because of the non-registration of X's name. Otherwise, if X's claim was hit by Section 78 of the Act, it is difficult to see how he could, by agreement, confer on another the right which he himself had not. In my opinion, these decisions are authorities for confining the mischief of Section 78, Land Registration Act, only to cases where the tenancy in question is under one estate or at least to cases where, though the tenancy is under several estates, there has been registration in respect of none. The present is not a case of that type and is out-side the mischief of the section. The relevant portion of Section 81 of the Land Registration Act, (B.C. Act 7 of 1876) stands thus:
Nothing contained in the three last preceding sections shall be held to interfere with the conditions of any written contract....
29. One of the three preceding sections referred to in it is Section 78 which enacts:
No person shall be bound to pay rent to any person claiming such rent as proprietor...of an estate...in respect of which he is required by this Act to cause his name registered...unless the name of such claimant shall have been registered under this Act.
30. Section 81 protects 'the conditions of any written contract' from any interference by the provisions of Sections 78 to 80. It does not protect 'any written contract' from such interference. The contract by itself is not protected. What is protected is 'the condition' of the contract. 'Condition' is a provision which makes the existence of a right or a liability dependent on the happening or not happening of an event or on the existence or non-existence of something. A promise to pay rent in consideration of the promisee putting the promisor in possession of certain land will be an agreement. This agreement will be a contract if the parties are competent to contract, if the agreement is made by the free consent of the parties, if the consideration is lawful, and if the object of the agreement is lawful. When the above requirements are fulfilled, the promise to pay rent becomes a contract. The parties may impose conditions on such a promise. These will be conditions of the contract. The conditions may be either express or implied. An express condition is a condition expressed in words, i.e., one set out as a term in a contract. An implied condition is one which is not expressed but is annexed by constructions - is one founded on the presumed intention of the parties with the object of giving such efficacy to the transaction as the parties must have intended it should have. In the case of a contract to pay rent, for example, there may be an express condition that the right to realize the rent or the liability to pay it shall arise irrespective of the registration or non-registration of the promisee's name as a proprietor. Or though no such condition is expressed in words, the very fact that the promisee is an unregistered proprietor, and the promise to pay the rent is still made in his favour, the condition may be inferred to the effect that the promisor undertakes the liability independent of the factum of registration or nonregistration of the proprietor's name.
31. Section 78 deals with the obligation to pay rent. Its interference can affect only this obligation. Section 81 therefore necessarily contemplates conditions of contracts relating to such obligation. If by the conditions of the written contract the obligation to pay arises in the event that has happened then Section 78 shall not interfere with that obligation. Section 81 does not speak of a contract between the parties only. It simply uses the words 'any written contract.' Whether 'the conditions of a contract' in any particular case will at all be available to or against any party is a question with which this section has no concern. A particular contract may run with the land and may thus be available to or against persons other than the original parties, because of their connexion with the land. But even then any particular condition of that contract may not at all move beyond the original parties. And it is this condition of the contract and not the contract itself which should be kept in view in applying Section 81, Land Registration Act. There seems to have been some divergence of judicial opinion as to the scope of this s.81; and it seems that in none of the cases already decided the word 'condition' was accorded its due importance. In : Dhoronidhur Sen v. Wajibunnissa Khatun ('89) 16 Cal. 708n (Sir Comer Petheram, C.J. and Tottenham, J.) a suit was brought to recover the rent of a patni, the patni was under an estate which was constituted a wakf by one Hafizunnessa who constituted herself the first mutwalli. Subsequently, the plaintiff Wajidunnessa was appointed mutwalli of the wakf estate in 1291 B.S. and she instituted the suit to recover the patni rent for the period from 1289 to 1292 B.S. The defenoe inter alia was that the plaintiff not being registered as a manager or proprietor under Bengal Act 7 of 1876, was not competent to sue for rent at all. This Court held that this objection of the defendant was fatal to the suit. If a tenant was not bound to pay rent to an unregistered proprietor, he was not liable to be sued for it. It appears that the patni in question could be sold under regulation 8 of 1819 on a prior occasion in 1878. This shows that there must have been a written contract creating the patni. Section 81, Land Registration Act, however, was not at all adverted to in this case.
32. In Bhugwandas v. Raghunath Sahai ('10) 6 I.C. 563 (Harrington and D. Chatterjee JJ.) the defendant himself took a lease from the plaintiff and in the lease there was an agreement by which the defendant undertook to pay the rent to the plaintiff. The plaintiff's name was not registered under the Land Registration Act. The plaintiff was held entitled to the protection of Section 81. It is obvious that in the facts of this case it was possible to say that there was at least an implied condition of the contract to pay the rent that the rent should be paid to the plaintiff even though he had not got his name registered under the Act. This case was followed in Iswar Chandra Bera v. Kali Charan Santra ('18) 5 A.I.R. 1918 Cal. 303 (Mookerjee and Beachcroft JJ.). The tenancy in question in Iswar Chandra Bera v. Kali Charan Santra ('18) 5 A.I.R. 1918 Cal. 303 was a patni created by the proprietor of certain estate. The estate was subsequently given in usufructuary mortgage to another, and the plaintiff was the transferee of this mortgage interest. The plaintiff sought to recover arrears of rent by the suit. His name was not registered under the Land Registration Act. The defence inter alia was that because of this non-registration the plaintiff's suit must fail. The plaintiff contended that his case came within the protection of Section 81 of the Act. In overruling this contention of the plaintiff, Mookerjee J. observed:
The 'written contract' mentioned in Section 81 refers obviously to a contract between the person who claims rent as proprietor and the person who is bound to pay the rent to him under Section 78 : Bhugwandas v. Raghunath Sahai ('10) 6 I.C. 563 in the case before us, there is no written contract of tenancy between the defendant and the plaintiff. There is no doubt written contract between the defendant and the proprietor from whom the plaintiff claims to have derived title as usnfruotuary mortgagee. A case of this description does not, in our opinion, fall within Section 81.
33. The cases in apparent conflict with this view are : Surya Kanta Ghatak v. Ananda Mohan Chatterjee ('14) 1 A.I.R. 1914 Cal. 890, Prabodh Chandra v. Harish Chandra ('21) 8 A.I.R. 1921 Cal. 145, Masbahuddin Ahmed v. Abdul Borkat ('21) 8 A.I.R. 1921 Cal. 303 and Satyendra Nath Mondol v. Nandalal Choudhury ('36) 40 C.W.N. 588. Surya Kanta Ghatak v. Ananda Mohan Chatterjee ('14) 1 A.I.R. 1914 Cal. 890 (Woodroffe and D. Chatterjee, JJ.), there was a registered kabuliyat executed by the defendant himself in favour of one Amrita Lai Banerjee. Amritalal sold the estate to the father of the plaintiff and the plaintiff inherited it from his father. The Court of Appeal below held that Section 81 did not avail the plaintiff because the section referred to a contract between the proprietor himself and his tenant, that is, the parties themselves, and not to a contract entered into either between the predecessors of the parties or between a successor of one of the parties and another original party. Woodroffe J. observed:
By the terms of that kabuliyat the contraot is one which is entered into not merely between the executant and recipient of the kabuliyat but between them and their respective heirs and successors. It must, therefore, I think, be taken in this case that there is a contract between the plaintiff as successor of Amritalal Bandopadhya and the defendant. There being, therefore, a contract between the parties, the case falls within the provisions of Section 81.
34. It is not clear from the judgment in the above case whether Amritalal Bandopadhya himself got his name registered under the Land Registration Act. If not, then an implied condition might be read into the contract that rent would be paid in spite of such non-registration: and the decision would not, in any way, be in conflict with those in the cases already given, if it be taken as holding that on a proper construction of the kabuliyat the contract with the implied condition ran with the land. Section 81 refers to and speaks of 'the conditions of written contract' and not merely 'a written contract.'
35. In Prabodh Chandra v. Harish Chandra ('21) 8 A.I.R. 1921 Cal. 145 (N.R. Chatterjea and Suhrawardy JJ.) one Puma was the eight annas proprietor of an estate, the other eight annas belonging to one Chandranath. Their names were registered in these respective shares. Purna alone purported to grant a lease of 400 bighas of land of this estate to the defendant who executed a registered lease in favour of Purna agreeing to pay him rent of Rs. 350. Purna died leaving two sons. They got their names registered under the Land Registration Act in respect of Puma's eight annas share. The plaintiff took an ijara from these sons and instituted the suit for the recovery of the rent of the tenancy. The defence contention seems to have been (1) that the name of the plaintiff not having been registered under the Land Registration Act, the suit at his instance was not at all maintainable (first part of Section 78, Land Registration Act) : (2) that in any case the name of Purna and after him, those of his sons having been registered only in respect of 8 annas share in the estate, (a) the plaintiff was not entitled to recover more than 8 annas of the rent (Section 78, second part), (b) Purna might have been able to recover the entire rent on the strength of the contract by reason of Section 81 of the Act; but the plaintiff was not within the protection of that section.
36. The learned Judges applied the decision in Surya Kanta Ghatak v. Ananda Mohan Chatterjee ('14) 1 A.I.R. 1914 Cal. 890 to this case and upheld the contention of the plaintiff that he was within the protection of Section 81 of the Act. Here again there was no conflict if we only keep in view the facts of the case and the language of the section. The condition of the contract here certainly was to make payment of the whole rent to Purna and his successors irrespective of the fact that his name was registered only to the extent of 8 annas share in the estate. If this contract with this condition could run with the land certainly it would be available to Puma's successors in interest. This decision itself, however, was set aside on review in Probodh Chandra v. Harish Chandra : AIR1924Cal124 by the same learned Judges where they held that Section 78, Land Registration Act, did not at all apply where the suit was by an ijaradar.
37. In Masbahuddin Ahmed v. Abdul Borkat ('21) 8 A.I.R. 1921 Cal. 303 (N.R. Chatterjea and Panton JJ.), the estate originally belonged to one Salimannessa. On her death her mother Raisannessa Begum inherited it. Raisannessa did not get her name registered under the Land Registration Act. The defendant executed a kabuliyat in favour of Raisannessa whereby he agreed to pay her rent. Eaisannessa thereafter sold the estate to the plaintiff who too did not get his name registered but instituted the suit for the recovery of the rent on the basis of the kabuliyat referred to above. It was held that the protection of Section 81 extended to the plaintiff. Here again, the kabuliyat being in favour of an unregistered proprietor, there was obviously an implied condition of the contract that the liability to pay rent would arise in spite of the fact that the claimant was not a registered proprietor. The decision, therefore, simply amounts to holding that the contract with this implied condition ran with the land. This is how the decisions stand so far as the meaning and scope of Section 81, Land Registration Act, are concerned. In the case before us, Section 78 itself is not applicable and consequently it is not necessary for us to see if the writtenv contract here contained any conditions, a express or implied, having bearing on the question, and if those conditions would move beyond the original parties to the contract.