1. This appeal arises out of a suit for rent under the following circumstances. One Purna was the proprietor of an estate in the Sunderbans. He sold an 8-annas share of the estate to one Chandra Nath on the 9th August 1897. The latter got his name registered in respect of the 8 annas share under the Land Registration Act. About six years afterwards, on 12th May 1903, the defendant No. 1 took a lease of 400 bighas of land from Purna alone and executed a registered kabuliyat in his favour, agreeing to pay a fixed rent of Rs. 350. He appears to have paid rent for some years to Purna alone. Purna died leaving two sons, and the plaintiff is the ijaradar of an 8-annas share of the estate from the sons of Purna whose names were registered in respect of the 8-annas share. The plaintiff brought a suit against the defendant for the rent reserved in the lease. The defendant pleaded that he had paid an 8-annas share of the rent to the representative of Chandra Nath, who was registered as proprietor of an 8 annas share of the estate under the Land Registration Act, and that, therefore, the plaintiff was not entitled to rent in respect of the 16-annas share. The Courts below have given effect to this contention and the plaintiff has appealed to this Court.
2. Now, the name of Purna was registered under the Land Registration Act in respect of an 8 annas share, and, although the name of Chandra Nath was registered in respect of the other 8-annas share, he had nothing to do with the lease which was granted by Purna alone and without reference to his so sharer, Chandra Nath. It appears that the land was not cultivated at the time when it was let out, as it was to be held rent-free for the first few years. The position, therefore, was this: one of the co-sharers alone let out a portion of the land of the estate in order to make a profitable use of it by bringing it under cultivation through his tenant. Whether Chandra Nath had similarly let out other lands or not and what the arrangement was between the co-sharers, we do not know, But this much is certain that Chandra Nath had nothing to do with this lease of 400 bighas.
3. The Court below has relied upon the case of Abdul Aziz v. Kanthu Mullick 10 Ind. Cas. 467 : 38 C. 512 : 13 C.L.J. 693, which lays down: there can be no estoppel against an Act of the Legislature.' That is a proposition which is not disputed. It further gays that 'An unregistered part-proprietor of an estate is not entitled to succeed am against the defendant, who, relying upon Section 60 of the Bengal Tenancy Act, has established that his debt has been discharged by payment of rent to the registered proprietor.' In that case the name of the part-proprietor (the plaintiff) was not registered, and it was pointed out by the learned Judges that there was no contest between two persons both of whom were registered as proprietors under the Act. What the precise position might have been if there had been a contest between two persons both of whom were registered under the Act, was not considered in that case.
4. It is conceded by Dr. Mitter that had the case been brought by Purna himself, the provisions of Section 60 of the Bengal Tenancy Act would not have been applicable to the acts of the present case, but it is contended that the plaintiff is not a person with whom the contract was made, the contract having been made with Purna from whom he derived title through his sons. Reliance is placed upon a decision of this Court in the case of Iswar Chandra Bera v. Kali Choran Santra 43 Ind. Cas. 726 : 27_ C.L.J. 474. In that case at page 476 Page of 27 C.L.J.--[Ed] the learned Judges, in considering Section 81 of the Land Registration Act which lays down 'Nothing in Section 78 shall be held to interfere with the conditions of any written contract or to prevent any person deeming himself entitled to any sum of money from recovering such sum by due process of law from any other person who has received the same,' held that 'the written contract mentioned in Section 81 refers obviously to a contrast between the person who claims rent as proprietor and the person who is bound to pay the rent to him under Section 78' The learned Judges further observed 'In the case before us there is no written contract of tenancy between the defendant and the plaintiff. There is, no doubt, a written contract between the defendant and the proprietor from whom the plaintiff claims to have derived title as usufructuary mortgagee. A case of this description does not, in our opinion, fall within Section 81, which is consequently of no avail to the palintiff,' On the other band, in the case of Surya Kanta Ghattak v. Ananda Mohan Chatterjee 24 Ind. Cas. 866, where the lower Court held that Section 81 referred to a contract between the proprietor himself and his tenants, 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 and D. Chatterjee, JJ., observed as follows:-'In the present case there was a registered kabuliyat executad by Ananda Mohan Chatterjee in favour of Amrita Lal Bandopadhya. The property was sold to the father of the plaintiff and it then descended to the plaintiff. The defendant is a tenant, By the terms of that kabuliyat the contract is one which is entered into not merely between the executant and the recipient of the kabuliyat but between them and their respective heirs and successors. It must, therefore, I think, be taken in this care that there is a contract between the plaintiff as successor of Amrita Lal Bandopadhya and the defendant. There being, therefore, a contract between the parties, the case falls within the provisions of Section 81 and registration was not necessary.' These observations apply to the contract in the present case, and following that case we hold that the plaintiff was entitled to maintain the suit upon the written contract which was executed Ly the defendant No. 1 in favour of Purna alone and without reference to the other co-sharer, though the name of the latter was registered in respect of 8-annas share.
5. The result is that the decrees of the Courts below are set aside and the case is remanded to the Court of first instance for trial of the other questions raised in the case and disposal of the case according to law, Costs will abide the result.