1. This is an appeal by the plaintiffs who succeeded in the trial Court but whose claim was dismissed by the lower appellate Court. This suit was for declaration of the plaintiffs' jote right and title to the suit lands and for khas possession with mesne profits. Plaintiffs' case was that they had 2/3rd share in the suit lands, defendants 1 to 6 had 1/6th share and defendant 12 1/6 th share and under them one Gayanath had an occupancy holding with a paddy rent of 6 mds., plaintiffs' share being 4 mds. There was a partition of the superior interest along with other properties of the plaintiffs, defendants 1 to 6 and 12, as a result of which lands consisting of the holding of Gayanath was divided into three portions, one each going to the defendants 1 to 6, defendant 12 and the plaintiffs respectively. The suit lands are those parts of the holding which were allotted to the defendants. The decree in the partition suit was made on 14th July 1930. The plaintiffs brought a rent suit (No. 1337 of 1931) against Gayanath making defendants 1 to 6 and defendant 12 parties to the suit and obtained a decree on 21st December 1931. The record does not show for what period rent was claimed in the suit. The plaintiffs obtained a decree and in execution brought the holding of Gayanath to sale on 23rd August 1935 and took possession on 23rd March 1936. Later, they brought a suit for possession under section 9, Specific Relief Act, on 23rd April 1937. Failing to get possession they brought the present suit. The case of the contesting defendants l to 6 and defendant 12 is that after the partition the plaintiffs were no longer cosharer landlords, that Gayanath has surrendered his interest in the suit lands, that is to say, those portions of the holding allotted to the defendants and therefore the decree in rent suit was not a rent decree and the interest of the defendants in the suit lands did not pass in sale and execution thereof.
2. The trial Court held that in fact there had been no surrender by Gayanath, that in any case there could not be a valid surrender at all of the suit lands as they were mere part of Gayanath's holding unless there had been consent of all the landlords including the plaintiffs. There is no evidence to show that the holding itself had been split up. The defendants had also taken the point that as the landlord's fee as required under section 26(E), Ben. Ten. Act, had not been deposited by the plaintiffs before confirmation of sale and therefore, the sale was void. The trial Court did not accept the contention. The lower appellate Court has held that there was a surrender, that 'the surrender was quite valid inasmuch as this was done after the separation of this land by partition.' The Court had further held that the sale was in any case void for want of compliance with the requirements of section 26 (e), Ben. Ten. Act.
3. The learned advocate for the appellants contends that there is no evidence that the holding itself was split up or that the rent was apportioned or that the provisions of section 88, Ben. Ten. Act, were complied with and therefore, although there has been a partition among the superior landlords the actual land of their holding is a joint one, their shares being represented by the actual lands as partitioned. The learned advocate for the respondents has endeavoured to support by reference to the plaint that there was an admission by the plaintiffs that the holding itself had been split up and the rent had been apportioned. I am unable to accept this contention and on this point, I, therefore, agree with the view of the trial Court to the effect that the holding being still intact there could not be any surrender of a portion of it to some only of the cosharer landlords. Hence assuming that the finding of the lower appellate Court is correct, namely that Gayanath actually gave up possession of the lands in shares of the defendant, that could not have the effect of a valid surrender under the Act, such as to affect the plaintiffs' title obtained by virtue of his purchase in execution of his own decree for rent. If in fact there had been any splitting up of the holding itself, it is not easy to understand why in the rent suit the other defendants should have been made parties at all.
4. As regards the question whether the sale in the rent execution proceedings is void for want of compliance under section 26 (E), Ben. Ten. Act, I agree with the view of the trial Court. In my opinion the sale cannot be held to be void on the ground merely that confirmation of the sale was made without the Court insisting on deposit of the landlord's fees as required by the section. The lower appellate Court has relied on Sk. Babar Ali v. Krishna Malini Dasi 3 C. W. N. 531 a case referring to section 13, Bengal Tenancy Act, as it stood in 1897. The material wording of that section appears to be however, the same as that in section 26(E) of the Act as it stood before 1938 which are the terms applicable to the present case. Sk. Babar Ali v. Krishna Malini Dasi 3 C. W. N. 531 was referred to in Mohim Chandra Bhuttacharjee v. Ram Lochan Dey ('03) 7 C. W. N. 591 and distinguished. With great respect, I must confess, I find it rather difficult to appreciate the distinction. In Sk. Babar Ali v. Krishna Malini Dasi 3 C. W. N. 531 the defendant was a tenant who contended that her interest had been sold to one Baburam Mitter in an execution sale. The plaintiff contended that that sale was invalid for failure to deposit the landlord's fees as required by section 13 of the Act. The Court held that the sale to Baburam was 'invalid and ineffectual as transfer of the tenure to the tenant from the defendant.' This apparently means that the Court treated the sale as a nullity. Otherwise, it is not possible to see how in a rent suit a previous court sale could be ignored. There were no proceedings to set the sale aside on the ground that it was liable to be avoided. The sale was in fact treated as a nullity. In Mohim Chandra Bhuttacharjee v. Ram Lochan Dey ('03) 7 C. W. N. 591 the sale had taken place in execution of a mortgage decree, and the judgment-debtor resisted the auction-purchaser in taking possession on tho ground that the landlord's fee had not been deposited. It was held that it was not competent for the judgment-debtor to raise objection regarding delivery of possession. His objection was held to be mainfestly frivolous because
he objects to the giving up of his tenure which has been properly sold because the auction-purchaser has not completed his title by payment of the landlord's fee and on this ground it has been held that the auction-purchasers cannot be put into possession. The sale however stands.
It was further held that even if the objections were valid, the landlord's fee might be deposited and a fresh certificate granted apparently meaning that fresh confirmation of sale might be made. If, however, the sale itself be held to be void as was done in Sk. Babar Ali v. Krishna Malini Dasi 3 C. W. N. 531 it is not easy to see how it could be given validity by a subsequent deposit of the landlord's fee nor why an objection on the ground that the sale was null and void was good when raised by a defendant in the earlier suit but bad when raised by the judgment-debtor in the latter case. The decision in the latter case relies on Malkarjun v. Narhari 27 I. A. 216 where a clear distinction is drawn between cases where a proceeding is to be treated as null and void, and eases where proceedings are to be treated merely as invalid and liable to be set aside in other suitable proceedings. With great respect, it appears to me that after Malkarjun v. Narhari 27 I. A. 216 the basis of the decision in Malkarjun v. Narhari 27 I. A. 216 has disappeared.
5. The provisions in section 26(E), Bengal Tenancy Act, and other similar sections of the Act, were clearly made as a means of collecting certain dues on behalf of the landlords. The method adopted is a simple one based rather on the analogy of a charge for admission to a public performance. The transfer can only be made in a certain way and part of the procedure for completing the transfer includes the requirement to pay a certain sum to the officer, Registrar, or the Court, as the case may be, before the final act completing the transfer is done. I can see nothing in the provisions which suggest that the intention was that if owing to the officer concerned overlooking his duties, he does his act without collecting the necessary entrance fee, the whole transfer itself is to be held entirely void. Support for this view, I think, is to be found in the provisions in section 26 (J) either as they now stand after amendment or as they stood previously. Section 26 (J) deals with the case where if we may continue the analogy, the officer as collector of the entrance money has been led astray, often by the deliberate act of the parties concerned. In other words, an occupancy holding has been transferred being described as a tenure thereby incurring a smaller landlord's fee. The officer concerned, acting under section 26(E), Bengal Tenancy Act, or the appropriate section has confirmed the sale under a misapprehension collecting an insufficient fee from the party required to pay. In this ease clearly his act is not to be held entirely void; on the contrary, section 26 (J), Bengal Tenancy Act, explicitly says that the party concerned would be liable to pay the balance, and the landlord is given an opportunity and method of collecting it. It may be noted that in the respective provisions for collecting landlord's fees, there is no express provision that any one is liable to pay anything. The machinery of the Act is simply to provide that the party concerned cannot complete transaction without paying. The Act is silent on what happens if he succeeds in completing it without paying owing to lack of vigilance on the part of the authority concerned. This may be an omission in the Act. It may be that section 26(J) requires an addition making a person who has achieved his object without paying, liable to pay, and giving the landlord a similar right to collect his dues as is given in the case where the parties have paid the deficit amount by a misdescription of the property transferred. The whole procedure of collection has affinity to the procedure for the collection of court-fees. In section 6, Court-fees Act, Courts are enjoined to reject plaints unless plaintiffs pay certain sums. There is a similar provision under Order 7, Rule 11, Civil P.C. that the Court shall reject the plaint if an insufficient court-fee is given as required by the valuation given for the subject matter of the suit. In the Tenancy Act provisions, the Court or the Registration Officer, as the case may be, is collecting money for the landlord; under the Court-fees Act or the Code of Civil Procedure, he is collecting it for Government. In the latter case, I have never heard it suggested, that years after the disposal of the suit the whole proceeding might be treated as null and void on the ground that a sufficient fee had not been paid by the plaintiff when he entered upon his litigation. In my opinion, the objection based on the failure to comply with the requirements of section 26(J), Bengal Tenancy Act, must fail.
6. The result is that this appeal is allowed and the decree of. the lower appellate Court is set aside and that of the trial Court is restored. By consent, the amount of mesne profits is fixed at four maunds of paddy per year, at rupee one per maund from the date of dispossession up to the date of the suit. The decree of the trial Court is modified to this extent only. The plaintiffs will be at liberty to apply for further mesne profits from the date of the suit till the date of recovery of possession of the suit lands, if necessary. Leave to appeal under Clause 15, Letters Patent, is refused. The appellants will have their costs in the lower appellate Court and in this Court.