1. This appeal arises out of a suit for rent under the following, circumstances.
2. It appears that a brahmattar tenure was held by one Golak and Chandratarn within the zemindari of the Maharaja of Tipperah. The latter brought a suit and obtained a decree for resumption of the lakhraj against Golak in the year 1862, but no rent was assessed on the tenure at the time. On the 27th March 1866, Golak and Chandratarn granted a miras to two persons at a permanent rent of Rs. 45. The latter sold the miras to one Abkjan Bibi on the 28th February 1871, On the 23rd August of the same year, Golak and Chandratarn sold the right to receive rent to the extent of Rs. 33 out of the Rs. 45 reserved as the miras rent, which was described in the conveyance as malikana masahara, to the then holder of the miras, Abkjan Bibi, Subsequently in the year 1875, the Maharaja sued Golak, Chandratarn as well as Abkjan Bibi for assessment of rent. The suit was dismissed by the Court of first instance but was decreed on appeal against Golak and Chandratarn only and was dismissed against Abkjan on the ground that she being an under tenant, she ought not to have been made a party to the suit. In that suit not only was the rent assessed but the Maharaja obtained a decree for arrears of rent, and in execution of that rent decree, the tenure held by Golak and Chandratarn was sold and purchased by the decree-holder, the Maharaja, himself, in 1888. In 1893 a notice under Section 167 of the Bengal Tenancy Act appears to have been served upon the plaintiffs, who are the heirs of Abkjan. No suit, however, was brought by the Maharaja to recover khas possession of the miras. He dispossessed the mirasdar and took possession himself. Thereupon the defendants brought a suit against him for declaration of their miras title and the suit was decreed. The question of rent, however, was not decided in that litigation.
3. The present suit was instituted by the Maharaja on the 6th February 1913 for recovery of rent at the rate of Rs. 45 against the defendants who represented Abkjan, the mirasdar. The defence was that by the kobala by which the malikana was sold to Abkjan on the 23rd August 1871, the rent of the miras had been reduced from Rs. 45 to Rs. 12 : that Golak and Chandratarn, the landlords, had not realised rent far more than Rs. 12 since the date of that conveyance and that in any case the encumbrance not having been annulled, the Maharaja was not entitled to get anything more than Rs. 12 as rent of the miras. The Court below has given effect to these contentions of the defendants and the plaintiff has appealed to this Court.
4. The question involved in the appeal turns upon the determination of what was transferred by the conveyance dated the 23rd August 1871. The kobala states that it was a sale of malikana masahara of the permanent mokurrari jama (the miras), and at purports to convey the profits to the extent of Rs. 33 per year out of the fixed mokurrari annual profit or rent of Rs. 45 which is described as the annual malikana. It further, states that the purchaser on being entitled to the said malikana of Rs. 33 in the right of the vendors will continue to enjoy the same down to their heirs with the right of gift and sale. The concluding paragraph of the kobala says that after deducting Rs. 33, the profits sold to the mirasdar, the latter would pay to the vendors and their heirs a malikana of Rs. 12 only and that the latter shall not be entitled to claim more than the said jama of Rs. 12.
5. We do not think that there was any reduction of the jama of the miras to Rs. 12, The terms of the document which we have quoted above go to show that there was a transfer of a portion of the rent or profits receivable from the mirasdar, although the effect of such transfer was that the mirasdar became thenceforth liable to pay an annual rent of Rs. 12 only to the vendor. Then the question is whether there was any transfer of the lakhiraj right, or merely an assignment of rent to Abkjan Bibi. There is nothing in the document to show that any portion of the resumed lakhiraj was transferred.
6. It is contended, however, before us that the tenure having been let out in miras settlement permanently, the interest of the landlord was really nothing more than the right to receive rent from the mirasdar, so that Rs. 45, which is referred to in the document as the malikana, represented the entire interest which the landlord had in the property and that, therefore, when the brahmattardars sold Rs. 33 malikana but of Rs. 45, they intended thereby to transfer their interest in the tenure to the extent of Rs. 33. But, in the first place, there is not a single word in the document showing that the right of the vendors in the property itself was going to be transferred; If it was intended to transfer any portion of the property, one would have expected the boundaries of the property and the share which was transferred, stated in the document. Moreover there is nothing in the kobala to show that the purchaser of the malikana to the extent of Rs. 33 was to be liable for any portion of the head rent, that is, the rent payable to the Maharaja. It is true that the rent had not been assessed at that time. But the lakhiraj had already been resumed by the Maharaja and the parties surely expected that the rent would be assessed on the property: and if there was a transfer of a portion of the property itself, meaning thereby the invalid lakhiraj property, there would have been some provision in the kobala for the purchasers being made liable for a part of the rent which might have to be paid to the Maharaja. It is contended that notwithstanding the form in which the property was conveyed and the expressions used in the kobala there was really a transfer of a portion of the property to the extent of 33/45 : that the defendants, therefore, stood in the position of co-sharers of the mirasdars Golak and Chandratarn; and that their interest also passed by the sale held in execution of the rent decree at which the plaintiff purchased, and in that case it was not a mere encumbrance within the meaning of Section 161 of the Bengal Tenancy Act.
7. It appears, however, that the suit by the Maharaja in 1875 against Golak, Chandratarn and Abkjan was instituted after Abkjan had purchased the malikana for Re. 33. The suit was dismissed as against her on the ground that she was an under tenant under Golak and Chandratarn, so that it was decided between the parties, so far back as It 75, that Abkjan's interest was merely that of an under-tenant, although it appears that she produced the kobala by which she had purchased the malikana from Golak and Chandratarn.
8. For all these reasons we are of opinion that Abkjan had not purchased any portion of the tenure itself but was an assignee of a portion of the m V s rent payable to the lakhirajdars Golak and Chandratarn. This assignment of a portion of the rent, we think, was an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act and that being so, it was necessary for the plaintiff to have it annulled under the provisions of Section 167 of the Bengal Tenancy Act. That was not done. The plaintiff cannot, therefore, recover more rent than what Golak and Chandratarn had been realising before the sale at which the plaintiff purcuhased.