1. One of the defendants-appellants died more than six months ago, and no application was made for the substitution of his legal representatives. That, being so, the appeal abates so far as that appellant is concerned.
2. The question, however, is whether the whole appeal must fail by reason of the abatement of the appeal with respect to one of the appellants.
3. The appeal arises out of a suit for arrears of rent instituted by some co-sharer landlords against the tenants. The tenant defendants claimed abatement of rent. That was allowed by the Court of first instance. On appeal by the landlords, the lower Appellate Court reversed that decree and held that the defendants were not entitled to an abatement of rent as all the landlords were not parties to the suit. Against that decision of the lower Appellate Court, the present appeal was preferred.
4. As stated above, one of the tenants (who were the appellants) died and his legal representatives were not substituted. That being so, the question to be considered is whether the remaining tenants are entitled now to claim abatement of rent. Upon that question, we may refer to the case of Bhoopendra Narain Dult v. Romon Krishna Butt 27 C. 417 : 4 C.W.N. 107 where the learned Judges pointed out that the expression tenant' in Section 52 of the Bengal Tenancy Act does not include the case of a mere co sharer tenant who has only a fractional share in the tenure, it means the tenant of the tenure and not one of many tenants. 'We entirely agree with the view taken in that cafe. If it were otherwise, it would be open to every co-sharer landlord and every co-sharer tenant to litigate the question of abatement of rent in separate suits and would result, as pointed out in that case, in' much confusion and almost endless litigation. 'As observed by Mr. Justice Banerjea, there is no real hardship in the case so far as the tenant defendant is concerned. It is always open to him to bring a suit for abatement of a rent, making all the joint landlords and his co-sharers in the tenancy parties to the suit.'
5. The learned Pleader for the appellants relied upon some observations in the case of Bhosai v. Aminuddi 37 Ind. Cas. 847 : 25 C.L.J. 489 at p. 471 : 21 C.W.N. 371. That was not a suit for abatement of rent but a suit for recovery of rent by a co-sharer landlord under a kabuliat. The other co sharer landlord was made a pro forma defendant. The plaintiff prayed that the pro forma defendant might be joined as plaintiff if she desired to do so and a decree might be passed for the entire rent if it was found that the rent due to her was still left unpaid on taking additional Court-fee from the plaintiff. There was no question of any excess area or of fresh adjustment of rent inconsistent with the terms of the original tenancy. The rate of rent was fixed for the whole area at the inception of the tenancy and the tenant agreed to pay rent, for the entire lands on the happening of the, contingency mentioned in the kabuliat. The suit was really to recover rent upon an ascertainment of the rent payable in. accordance with the terms of the original letting, and it was held that the case did not come within Section 52 of the Bengal tenancy Act, but was maintainable under the general law, as the co-sharer landlord who had not joined as plaintiff was made a party to the suit. We do not think that that ease helps the appellant in any way.
6. We are accordingly of opinion that the present appeal must fail and is dismissed with costs.