1. In the suit out of which this appeal arises the plaintiffs sued the defendant for the recovery of arrears of rent for the years 1338 to 1341 B.S. on the basis of a kabuliat which was executed by the defendant on 3rd June 1929. Various pleas were put forward by the defendant in the Courts below. He denied the validity of the kabuliat and maintained that he bad not undertaken to pay the rent of Rs. 23 per annum and that the kabuliat dated 3rd June 1929 had not been acted upon. The first Court decreed the plaintiff's suit. The defendant then appealed to the lower Appellate Court and the learned Subordinate Judge reversed the decision of the first Court mainly on the ground that the kabuliat of 3rd June 1929 had been taken by the plaintiffs after an invalid sub-division of the original holding. It appears from the facts found in the judgment of the learned Subordinate Judge that originally three brothers were tenants in respect of the land covered by the holding in respect of which rent is claimed by the plaintiffs. These brothers were Gangaram, Bharat and Rajani (the defendant in this case). They held jointly two raiyati tenancies under the plaintiffs, the rent of the first of these being Rs. 4-9-0 per annum while the annual rent for the other tenancy was Rs. 24-10-4. After the death of Gangaram and Bharat, new kabuliats were taken by the landlords in respect of the original tenancies on 3rd June 1929, the tenants under these kabuliats being Bajani, the defendant in the suit out of which this appeal arises and Nityabashi. Admittedly both Bharat and Gangaram had children but these children were not parties to the kabuliats nor does it appear that these kabuliats were executed on their behalf. It therefore follows that the two kabuliats executed by Rajani and Nityabashi involve a division of the two original holdings without the consent of all the cosbarer tenants of those holdings. The kabuliats must therefore be regarded as invalid having regard to Proviso 2 to Section 88, Bengal Tenancy Act.
2. It is argued by the learned advocate for the appellants in this case that in effect a new tenancy was created in favour of Rajani by the kabuliat dated 3rd June 1929 not only in respect of that portion of the land of the original tenancy which was in his possession but also in respect of some new land which was not included in the original tenanoc. With regard to this point, I would have held that in view of the clear language of Proviso 2 to Section 88, Bengal Tenancy Act, mentioned above, even if new land had been included in the kabuliat, this fact would have made no difference to the validity of the kabuliat itself if the original tenancy had been divided or the rent thereof had been redistributed as has happened in the case with which we are now dealing. In any event however, the finding of the lower Appellate Court is to the effect that it is not safe to rely upon the evidence that there has been an increase in the area of the tenancy. This finding must be regarded as final. In my opinion, the view taken by the lower Appellate Court is correct. The judgment and decree of the learned Subordinate Judge will therefore be affirmed and this appeal is dismissed with costs. Leave to appeal under Clause 15, Letters Patent, is refused.