1. This is an appeal under Clause 15 of the Latter a Patent from a judgment of Mr. Justice Newbould in an appeal from an appellate decree in a suit for recovery of arrears of rent, The question in controversy was, whether there was. a valid, deposit of rent under Section 61 of the Bengal Tenancy Act prior to the institution of the suit, f ha Court of first instance answered in favour of the defendants and dismissed the suit. Upon appeal, the Subordinate Judge reversed that decision and his decree has been confirmed by Mr. Justice Newbould.
2. It appears that the defendants at one time held under the plaintiffs three distinct tenancies. The plaintiffs have instituted the present suit for recovery of rent due in respect of the lands comprised in all the three tenancies, on the allegation that the tenancies had been amalgamated and now constituted, in reality, only one tenancy. The defendants pleaded that the tenancies were distinct and that on this footing they had, prior to the institution of the suit, made three deposits in Court in respect of the three alleged distinct tenancies. It was found by the Subordinate Judge, contrary to the decision of the Court of first instance, that the three tenancies had been amalgamated, and we are of opinion that Mr. Justice Newbould has correctly held that the question whether the three tenancies had or had not been amalgamated was a question of fact, dependent for its decision upon evidence which could not be considered by this Court in second appeal. We must, consequently, proceed on the assumption that at the date of the institution of the suit there was only one tenancy. This raises the question whether the deposits bad been validly made and furnished an answer to the claim.
3. Mr. Justice Newbould has found that none of the conditions precedent to the application of Sub-section (1) of Section 61 has been proved to exist. But it has been urged here on behalf of the defendants-appellants that the case may be brought within Clause (b) as the tenants had on a previous occasion, though many years ago, tendered rent which had been refused, and had consequently reason to believe that rent, if tendered on the, present occasion, might meet with the same fate. We shall not pause to examine whether this view is or is not plausible, for even if we assume that the, case comes within Clause (b) of Sub-section (1) of Section 61, it is clear that the defendants cannot succeed. The section contemplates that the tenant may present, to the Court having jurisdiction to entertain a suit for the rent of his tenure or holding, an application in writing for permission to deposit in the Court the full amount of the money then due. If a tenant holds in fact one tenancy under his landlord but makes three deposits in Court on the allegation that he holds three, distinct tenancies, it cannot be maintained that this is a deposit within the meaning of Section 61. But it has been argued that once a deposit has been made and has been accepted by the Court under Section 62, it is not open to the landlord to question its validity. In support of this proposition, reliance has been placed upon the decision in Sasi Bhusan Dey v. Umakant Dey 25 Ind. Cas. 171 : 20 C.L.J. 153 at p. 157 : 19 C.W.N. 1143 That case, however, is clearly distinguishable. It was there held that where the amount deposited was less than the amount due, the deposit operated as a part payment of the debt due to the landlord, inasmuch as Sub-section (2) of Section 62 provides that a receipt given by the Court operates as an acquittance for the amount of the rent payable by the tenant and deposited as aforesaid in the same manner and to the same extent as if that amount of rent had been received by the landlord. If a tenant unconditionally offers money to the landlord, even though the amount tendered may not cover the entire arrears due, the landlord is bound to accept it in part satisfaction of his dues. The case before us is, however, of a different description. Here the deposits which are said to have been made were, strictly speaking, made, not in respect of the one tenancy held by the plaintiffs, but in respect of three tenancies which were no longer in existence as distinct tenancies but had been amalgamated into one tenancy. We are of opinion that there was no valid deposit and the suit has been rightly decreed. The appeal is consequently dismissed with costs.