1. Two questions of law of some importance and novelty have been argued in these appeals, namely:
2. First, whether a sale in execution of a decree for the whole rent obtained by a landlord, who at the time of the suit is the registered proprietor and who has been placed and maintained in possession by a competent Court, operates as a sale under Chapter XIV of the Bengal Tenancy Act even if it transpires ultimately, as the result of litigation in a title suit, that he is not the sole landlord and has co-sharers in the property. Secondly, whether it is competent to a purchaser at a sale held in execution of a decree for arrears of rant to annul, under Section 167 of the Bengal Tenancy Act, an incumbrance upon the property purchased, without annulling at the same time a superior incumbrance directly subordinate to the interest purchased.
3. The circumstances which render necessary the decision of these questions of law are not the subject of controversy between the parties to the litigation. One Haranath Sarkar was owner of a taluk Sanirjhore under the Government. The first in the series of subordinate interests was an osat taluq held by Aleph Sardar who had under him a howlah held by Abdul Sardar in one case and Srikrishna in another. Under the howladar was the osat howladar, Mafizuddin Sardar, the present plaintiff. The defendant Asutosh Chuckerbutty is a nim-howladar under him. Haranath died on the 14th January 1882. He left three sons, Jogendra Nath, Navendranath and Surendra Nath, the last two infants under the guardianship of their mother Saudamini. Haranath had made a testamentary disposition of his properties and Jogendra managed the estate under the Will till his death on the 2nd December, 1886. He left a widow Kamal bashini and six daughters but no male issue. Upon the death of Jogendra Nath, disputes broke out amongst the members of the family as to the true effect of the dispositions contained in the Will of Hara Nath and on the 9th September 1889, the minor sons of the testator represented by their mother Saudamini commenced an action against Kamal bashini for recovery of the one-third share of the estate of which the latter had taken possession. On the 7th October 1890 the Subordinate Judge made a decree in favour of the plaintiffs. The defendant appealed to this Court but during the pendency of the appeal on some date not specified in these proceedings, the plaintiffs executed the decree and obtained delivery of possession on the 30th August 1892. The appeal was allowed by this Court and the plaintiffs were declared entitled to a two-thirds share only of the estate. They obtained leave to appeal to Her Majesty in Council and as they furnished sufficient security to the satisfaction of the Court, they were allowed to remain in occupation of the entire estate. On the 29th March 1894, they were registered as proprietors in respect of the entire estate under the provisions of the Land Registration Act. On the 22nd February 1896 their Lordships of the Judicial Committee affirmed the decision of this Court. Norendra Nath Sircar v. Kamalbasini Dasi 23 C. 563 : 23 I.A. 18, and it was then finally decided that the plaintiffs were entitled only to a two-thirds share of the estate and that the remainder rightfully belonged to their sister-in-law Kamalbashini. Meanwhile on the 11th April 1895 the plaintiffs had brought a suit against Aleph Sardar for the entire rent of the osattaluq held by him for the period which intervened between April 1891 and February 1895. On the 22nd May 1895, the suit was decided ex parte. The rent-decree was subsequently executed and on the 20th September 1897 one Mohim Chandra Sarkar purchased the osat taluq at the execution sale for the benefit of Tajomoy Chuckerbutty. The purchaser obtained delivery of possession on the 11th December 1897 and subsequently on the 16th March 1898 served notices upon the subordinate tenure-holders under Section 167 of the Bengal Tenancy Act, On the 13th April 1901 and 29th March 1906, the plaintiff Mofizuddin who held the osat howla brought two actions for rent for different parcels of land against Ashutosh Chuckerbutty the nim-howladar for arrears of rent of the years April 1900 to March 1904 and April 1902 to January 1908, respectively. The defendant resisted the action on the ground that his nim-howla as also the osat howla of the plaintiff had been annulled by due service of notice by the auction-purchaser of the osat taluq. The plaintiff contested the validity of this defence on two grounds namely, -first, that the sale in execution of the decree for rent obtained by Saudamini on behalf of Narendra and Surendra was not a sale under the Bengal Tenancy Act, because, as subsequent events showed, they were only two out of three joint landlords; secondly, that if the decree was assumed to be operative as a true rent decree, the osat howla and nim-howla could not be treated as annulled inasmuch as there was nothing to show that the superior incumbrance of the howladar had been similarly annulled. In one of these suits, the Court of first instance held that the decree obtained by Saudamini was not a true rent decree, that consequently the subordinate tenure-holders were not affected by the sale, and that the plaintiff was accordingly entitled to a decree for rent. This judgment was reversed in appeal by the Subordinate Judge, on the ground that the decree was operative as a rent decree, and it was sufficient for the defendant to prove that his interest as also that of his immediate landlord, the plaintiff, had been annulled by the auction-purchaser. In the other suit, the Court of first instance followed the appellate decision in the earlier suit and held that the decree was a rent decree and the effect of the sale and of the subsequent service of notice was to extinguish the tenancy in respect of which the rent is now claimed. On appeal, this decree has been confirmed by the District Judge; who has treated the decree of 1895 as operative as a rent decree and has farther held that an auction-purchaser can annul any particular incumbrance and need not aunul any superior incumbrance immediately subordinate to the interest purchased by him. The plaintiff has now appealed to this Court and on his behalf the decision of the Court of Appeal below in both the suits has been assailed on the two-fold ground that the decree of 1895 is not operative as a rent decree and that in any view of the matter, till the interest of the howladar is proved to have been extinguished, the subordinate incumbrances owned by the plaintiff and the defendant must be treated as unaffected by the execution sale.
4. In so far as the first of the two questions of law thus raised is concerned, the answer to it must depend ultimately upon the true construction of Section 65 of the Bengal Tenancy Act. That section provides that a tenure or holding shall be liable to sale in execution of a decree for the rent thereof and the rent shall be a first charge thereon. It is because the rent is a first charge that the purchaser at a sale in execution of a decree for arrears of rent takes the property with power to annul incumbrances in the manner provided in Chapter XIV of the Act. But it is essential for this purpose that the arrears claimed should be in respect of the whole rent. It was pointed out by this Court in the case of Sheikh Jarip v. Ram Kumar De 3 C.W.N. 747 that the decree referred to in Section 65 is a decree obtained by all the landlords or at all events a decree obtained by some of the landlords for the entire rent the presence of all, and not a decree obtained by one co-sharer for his share of the rent. Substantially the same view was affirmed in the cases of Chandra Sekhar Patra v. Rani Manjhee 3 C.W.N. 386, Sashi Kumar v. Sitanath Banerji 7 C.L.J. 425, and Pramoda Nath v. Ramani Kanta 35 C. 331 : 7 C.L.J. 139. In the last of these cases, it was held by the Judicial Committee that a suit by a co-sharer for the entire rent in which the other co-sharers are joined as co-defendants must be regarded as properly framed under the Bengal Tenancy Act and in execution of the decree in a suit so framed the tenure itself might be brought to sale. The essential characteristic of a suit for rent under the Bengal Tenancy Act the decree in which has the special operation described in Chapter XIV namely, that the claim should be in respect of the entire rent, is present in the case before us. No doubt, as events ultimately turned out, the plaintiffs were at the time of the suit interested only in a share of the estate, but they were then the only persons competent to maintain an action for rent. They had entered into possession of the entire estate in execution of a decree of a competent Court. Though this decree was subsequently reversed on appeal, they were allowed by another competent Court to continue in possession pending the final disposal of the question of title by the ultimate appellate tribunal. They had their names registered under Act VII of 1876, and the continued effect of Section 76 of that Act and Section 60 of the Bengal Tenancy 'Act was practically to deprive the tenant of all defence upon the question of 'title to receive rent. Under such circumstances, we must hold that the suit was essentially one for rent and the decree therein was operative as a decree in a properly framed suit by all the landlords. The plaintiffs in the suit of 1895 may in essence be regarded as completely repesenting the estate for the purposes of that suit. It may further be remarked that if a common manager had been appointed under the provisions of the Act or a receiver or an administrator had been appointed by the Court during the pendency of the suit for construction of the Will, a suit for rent by such manager, receiver or administrator would have been operative precisely in the same manner as the suit actually brought by Saudamini. The view we take does not militate against the decision of this Court in Narainuddin v. Srimanta Ghose 29 C. 219, for there the claim was as to the whole rent in respect of some years and as to a portion only in respect of the other years, so that the vital element, namely, that the claim was for the whole rent was absent in the suit as framed. Reference was made at the Bar to the class of cases Hem Chunder Bhunjo v. Monmihini Dassi 3 C.W.N. 604, Srimant Roy v. Mahadeo Mahata 31 C. 550 : C.W.N. 531, in which it has been ruled that a decree for rent, in order that it may be operative under Chapter XIV of the Bengal Tenancy Act, must be obtained by a person who is and continues to be the landlord from the time of the institution of the suit to the execution of the decree made therein. These cases, however, do not afford any real assistance in the solution of the question raised before us; for, apart from the circumstance that the Judicial decisions on the point are by no means easy to reconcile, Khetra Pal Singh v. Kritarthamoyi Dassi 33 C. 566 : 8 C.L.J. 470, Srimanta v. Mahadeo 31 C. 550 : C.W.N. 531 Maharaj Bahadur Singh v. Forbes 35 C. 737, they are all distinguishable on the ground that in the case before us, the plaintiff in the suit of 1895 retained throughout the character of landlord. The only peculiarity was that though they had not the title to the whole rent, they obtained a decree for the whole rent and enforced it, and they thereby made themselves liable to account to their co-sharers. For the reasons already explained we must hold that the proceedings had the same effect as is attributed to a proper rent suit under the Bengal Tenancy Act. The first question of law formulated above, must consequently be answered in the affirmative.
5. In so far as the second question is concerned, the answer must depend on the true construction of Sections 159 and 161 of the Bengal Tenancy Act. The Court of Appeal below has held that it is competent to the auction-purchaser to annul any one in a series of incumbrances, leaving untouched a superior incumbrance immediately subordinate to the interest acquired by him at the auction sale. In our opinion, this view is obviously untenable. The whole object of the reservation of a power in the auction purchaser to annul incumbrances is to enable him to get rid of a subordinate interest, the holder whereof may intercept the rent which would otherwise be legitimately payable to him. If, however, the purchaser is content to leave untouched the tenure-holder immediately subordinate to the interest acquired by him, there is no intelligible principle upon which he should be allowed to annual incumbrances of an inferior grade. Indeed, for he were allowed to do so, the consequences might be very anomalous. To take one illustration, suppose that under a zemindar, X, we have a succession of subordinate tenures, A. B. C. D. X. in execution of a decree for rent against the holder of A, sells up his tenure, which is purchases by Y. If Y annuls C but not B, what is the position of the latter? He is liable to Y for rent, but cannot recover any rent from the holder of C, whose interest has been annulled, or from the holder of D with whom he has no privity. It is manifest that if Y chooses to exercise his power to annul any incumbrance at all, he must begin with B and may proceed downwards as far as he chooses, but he cannot select arbitrarily any link in the chain and destroy it, while he allows those above it to remain unaffected. In our opinion, the view taken by the Court of Appeal below cannot be supported and the second question of law formulated above must be answered in the negative.
6. The result, therefore, is that these appeals must be allowed, the decrees of the Courts of Appeal below set aside, and the cases remanded to them, to determine whether the howla, which intervenes between the osat taluq and the osat howla has been duly annulled; if this is, answered in the affirmative, the suit must fail; if in the negative, the suit must be decreed. The parties will be at liberty to adduce evidence to elucidate this particular point. The costs of this Court in both the appeals will abide the result.
7. We observe that one of the appeals was heard by the Subordinate Judge of Khulna, and the other by the District Judge of Jessore. It is obviously desirable that as only one question of fact remains to be determined. both the appeals should be heard by the same officer. We, therefore, direct that both the remanded, appeals be transferred to the file of the District Judge of Khulna for disposal.