G.N. Das, J.
1. This appeal by the defendant is directed against a judgment of Mookerji J. dated 14th June, 1950 passed in 'S. A. No. 300 of 1947'.
2. The facts are not in controversy and may be stated as follows.
3. An occupany holding, which is the disputed property, was held by one Maneswari Dasi under the landlords, Parijat Charitable Trust Estate, represented by the receiver Raja Raj Kissen Deb Bahadur. The latter instituted a suit for recovery of rent, being Rent Suit No. 659 of 1943 against Maneswari Dasi in the First Court of the Munsif at Diamond Harbour. The suit was duly framed under the provisions of Section 148A of the Bengal Tenancy Act (hereinafter called the Act). During the pendency of the suit for rent, on 19-6-43 Maneswari Dassi sold the whole of the occupancy holding to Bireswar Deb Sarkar, husband of the plaintiff Radharani Deb Sarkar. Notice of the transfer of the occupancy holding under Section 26C of the Act was served on 12-12-1944.
4. The landlords Parijat Charitable Trust Estate obtained a decree in the said Rent Suit No. 659 of 1943 on 31-8-1943 and proceeded to execute the decree in Rent Execution Case No. 1446 of 1943 and put up the occupancy holding to sale on 6-3-1944 when the plaintiff purchased the said holding. Bireswar Deb Sarkar the transferee was not made a party to these proceedings. The plaintiff took possession through Court on 9-6-1946 and was resisted by the defendant-appellant. The plaintiff caused to be served on the defendant notice Under Section 167, Bengal Tenancy Act and thereafter brought the suit, out of which this appeal has arisen, for declaration of her title and for recovery of 'khas' possession of the said holding. The defence of the contesting defendant appellant was that on 23-4-1934 the said Maneswari Dasi had granted a lease of the disputed property to himself and his nephew and that on a partition, he has got the entire property in his share; that as the said Bireswar Deb Sarkar, the purchaser of the said occupancy holding, had not been made a party either in the rent suit or in the rent execution proceedings, the decree and the sale at which the plaintiff had purchased, had not the effect of a decree for rent or of a rent sale under the provisions of the Act and the plain-tiff by her purchase had not acquired the occupancy holding free from all encumbrances but had merely purchased the right, title and interest of the judgment-debtor Maneswari Dasi which was non-existent at the time and as such the plaintiff had no title to the disputed occupancy holding, the title having remained with the plaintiff's husband, Bireswar Deb Sarkar.
5. The trial Court decreed the suit on the finding that as notice of the transfer by Manes wari Dasi to the plaintiff's husband, under Section 26C of the Act, was not served on the land-lord till after the rent execution sale, the land lord was not bound to implead the transferee of the said occupancy holding from Maneswari Dasi, and the decree and execution sale against Maneswari had the effect of a rent decree and a rent sale, and that the plaintiff acquired the occupancy holding itself free from the interest of the defendant, who was an under-raiyat and that the plaintiff was entitled to 'khas' possession.
6. On appeal by the defendant-appellant the judgment and decree of the trial Court was reversed and the plaintiff's prayer for 'khas' possession was disallowed on the ground that the decree and sale had not the effect of a rent decree and rent sale and that the aforesaid plaintiff had no title.
7. The plaintiff preferred a second appeal to this Court. The appeal was heard by Mookerjee J. The appeal was allowed on the view that as the landlord had no knowledge or notice of the transfer by Maneswari the landlord was not bound to implead the transferee so as to obtain the benefits of a sale under Chap. XIV of the Act.
8. It is the propriety of this view which is in question in this appeal.
9. Mr. Mitter, learned Advocate for the defendant-appellant, has referred us to the case of 'Sm. Binapani Devi v. Banku Behari', 47 Cal WN 651, 'Kamalakshya Choudhury v. Joychand Lal', 48 Cal WN 105, 'Menajuddin v. Heronuddin Mullick', 51 Cal W N914 and 'Nrisingha Prosad Bose v. Nilratan Singha Roy', 54 Cal W N 683 and has contended that as in the present case Maneswari Dasi, the defendant in the rent suit and the judgment-debtor in the rent execution case, had lost her interest in the occupancy holding before the passing of the decree for rent, the decree was not a rent decree and the resultant sale in execution had not the effect of a rent sale and did not pass the occupancy holding to the purchaser at the sale did not confer on him the rights specified in Section 159 of the Act.
10. Dr. Sen Gupta, learned Advocate for the plaintiff-respondents, has pointed out that all the cases cited are distinguishable inasmuch as, in all these cases, the landlord had either notice or knowledge of the transfer of the interest of the tenant. He has contended that the landlord, in order to secure to him the benefits conferred by Chap. XIV of the Act, is entitled to proceed against the tenant or tenants whose names appear in the rent roll kept by him and if he impleads all such persons, he is not bound to search out the persons who may have acquired interests in the tenancy and of whose purchase he had no knowledge or notice as provided by the Act. He has referred us to the provisions of Section 26C (5) of the Act and to certain observations of their Lordships of the Judicial Committee in the case of 'Jitendra Nath Ghosh v. Monmohan Ghose', 34 Cal W N 821 at p. 837.
11. I shall proceed to decide upon the contentions of the parties. The theory that a decree against the tenant whose name is recorded in the landlord's rent roll binds all unrecorded transferees has its origin in the earlier rent legislations - Section 27 of Act X (10) of 1859 and Section 26 of Act VIII (8) of 1869 made provisions for registration of transfers etc. in the landlord's rent roll. Section 26 of Act VIII (8) of 1869 entitled the landlord to sue the recorded tenant i.e., a tenant whose name was recorded in his books and provided that the decree so obtained would bind the unrecorded transferee.
12. Act X (10) of 1859 & Act VIII (8) of 1869 were repealed by the present Bengal Tenancy Act (Act VIII (8) of 1885). This Act does not contain similar provisions. It introduced a totally different system providing for service of notices of transfer and succession in case of permanent tenures and 'raiyatis' at fixed rates. The transferee or the successor was required to deposit the requisite fees which would be transmitted by the Collector to the landlord under the provisions of Sections 12, 13, 15 in case of permanent tenures and under Section 18 (1) (a) in case of 'raiyatis' at fixed rates. In the case of 'Kristo Bullabh Ghose v. Kristo Lal Singh', 16 Cal 642, it was held By this Court that a transfer of a permanent tenure is complete as soon as the deed of transfer is registered and that the non-service of the notice of the transfer on the landlord was not material. The reaon for the decision was stated by Petheram C. J. to be that the liability for rent is a liability in consequence of the estate, and that the ordinary rule is that the liability ceases when the estate is transferred and the vendor ceases to have any estate in the property and that there is nothing in the Act which indicates that the Legislature intended to impose any limitation upon the right to transfer by making it dependent on the receipt of notice by the landlord (See PP. 644-645). The above decision was followed in the case of 'Chintamoni Dutt v. Rash Behari Mondal', 19 Cal 17, though not without a mild murmur by the learned Judges that the rule might involve a hardship on the landlord, who might not have received the notice by some neglect on the part of the Registrar or the Collector. The view taken in 'Kristo Bullabh Ghose's case' was reaffirmed in the case of 'Hemendra Nath v. Kumar Nath Roy', 12 Cal W N 478 and must now be taken to be finally settled by the decision of the Privy Council in the case of 'Surupati Roy v. Ram Narayan', 50 Ind App 155.
13. In the case 'Sheikh Babar Ali v. Krishna Manini Dasi', 26 Cal 603, Rampini J. held that if the landlord's fees were not at all paid, the transfer would be invalid. But this decision was superseded by Act I (1) (BC) of 1903 which enacted that non-payment of the landlord's fees would not invalidate the transfer.
14. It follows, therefore, that the non-payment of landlord's fees or the non-service of the notice under Sections 12, 13, 15, 18 (1) (a) and 26C of the Act is immaterial and that neither of these facts justifies the landlord in using for rent the transferor whose name may remain in the landlord's rent roll in spite of transfer or succession. The landlord is ordinarily bound to see the tenant in whom the estate is vested. The charge created by Section 65 of the Bengal Tenancy Act can only be availed of by the landlord it he gets an effective decree for rent by proceeding either against the person in whom the estate is vested or against the person who represents the estate.
15. Section 146A of the Act which was added by the Bengal Tenancy (Amendment) Act IV (4) of 1928 proceeds on the theory of representation of the tenancy by the defendant or the judgment-debtor. A reference to Sub Section 146A (3) shows that the entire body of co-sharer-tenants in a tenure or holding is deemed to be represented if the defendants to the suit for rent include the four categories mentioned in clauses (i) 'to (iv) of that section. These clauses have been held to be conjunctive: 'Amulya Charan v. Prankrishna', 42 Cal W N 755, 'Tayaja Molla v. Birendra Nath', 43 Cal W N 80. It would appear from an examination .of the said four clauses that the landlord. is bound to implead not merely persons whose names appear in his rent-roll or who have given notices under Section 12 (3), 15 or 26C of the Act but other categories of persons as well.
16. It may be noted that the Act does not say who is to be sued for rent. Section 148A speaks of the impleading of certain persons as landlords. In the absence of any clear provision in the Act, I see no reason why in a suit for rent, the decree wherein may have very grave consequences under Chap. XIV of the Act, the landlord should be permitted to depart from the ordinary rule that no person shall be bound by a proceeding to which he or his representative is no party. In my opinion, the landlord, in order that he may avail himself of the rights conferred by Chap. XIV of the Act, must implead as defendants, the persons in whom the tenancy is vested or persons who represent the said persons. It is not sufficient merely to implead the persons whose names appear in the landlord's rent-roll.
17. The views taken by me underlies the decision in 'Binapani's case', (47 Cal W N 651) and was the basis of the decision in 'Nrisingha Prosad's case', 54 Cal W N 683, to which I was a party.
18. Dr. Sen Gupta has contended that the above view is opposed to the plain implications of the following observations in 'Jitendra's case', 34 Cal W N 821:
'In this state of the law their Lordships can see no foundation for the contention that a landlord can ignore all transfers of the tenure and rely upon decrees obtained by him against persons whom he chooses for his own purposes still to record as his tenants, though he knows, or must be taken to know, that their interest in the tenure has ceased' (p. 837).
19. In my opinion, the above observations have reference to the question of representation. A landlord who has received the notice under Section 12, 15, or 26-C of the Act or who knows about the cessation of the interest of a tenant fey transfer or succession, cannot be heard to say that the outgoing tenant still represents the transferee or the successor.
20. That the principle of representation is the basis of the decision in 'Jitendra's case', (34 Cal W N 821) will appear from the following passage at p. 838.
'If it was, as is now admitted, statutorily transferable, their Lordships know of no principle or law, nor have they been referred to any provision of the Act which justifies the contention of the Appellants. It would indeed appear from the decision of the Board in 'Surapati Roy v. Ram Narain Mukherjee,' 50 Ind App 155 S C, 28 Cal W N 517, and other cases decided in India (see, for instance, 'Chintamoni Dutt v. Rash Behari', 19 Cal 17), that the original tenure-holders would no longer be liable for the rent, and that an effective decree, therefore, could, only be obtained against the transferees. But, in the present case, it being clear to their Lordships that the decrees which the Appellants claim to execute by the sale of the tenure were not, for the reasons assigned by the High Court, proper rent decrees, they think it is impossible to hold that the Respondents are bound by them.'
21. The reasons given by the High Court, which their Lordships approved, are to be found at p. 825.
'They are no doubt entitled to recover rent against one or some of the heirs of the tenants, but in order that a decree can be treated as a decree for rent all the parties interested in the tenure must be made parties, there being no finding nor evidence that the persons against whom the rent suits were brought represented the whole body of tenants with their consent.'
22. The above remarks also apply to the observations of Mukherjee J. in 'Menajuddin v. Heronuddin Mullick,' 51 C. W. N. 914, which are quoted in the judgment now under appeal and to which Dr. Sen Gupta also drew our attention.
23. The decision of Henderson J. in 'Surendranath Haldar v. Pratap Chandra', 76 Cal L. J. 248, was not based on the effect of service of a notice under Section 13 of the Act. It proceeded on the ground that:
'there was no statutory provision which requires a decree-holder to give a notice to a person who is not the judgment-debtor or a representative of the judgment-debtor'. Page 249).
As was pointed out in 'Nrisingha Prosad's case 54 C. W. N. 683 at p. 688,' the above considerations as to notice referred to by Henderson J. are either irrelevant or unnecessary.
24. In the case of 'Nagendranath Sinha v. Niranjan Patra,' 41 C. W. N. 1173, which was also relied on by Dr. Sen Gupta, the facts were that a suit for rent was instituted against a large body of co-tenants; portions of the tenancy had been purchased by the principal respondents during the pendency of the rent suit. It was found as a fact that the. requirements of Section 146-A (3) were complied with and that notice of transfer was served after the passing of the decree. The landlord thereupon wanted to implead the transferees at the execution stage. This prayer was opposed by the transferees. In these circumstances, M. C. Ghose J. held that:
'as the decree for rent had satisfied the condition laid down in Section 146A, the total holding will pass in execution of the decree if brought to a sale'.
25. The decision does not militate against the view that the tenancy should be represented in the suit and in the execution proceeding by the defendants or the judgment-debtors as the case might be.
26. Dr. Sen Gupta has also referred us to the; provisions of Section 26 C(5) Which requires the landlords not to: refuse to recognise the transferee as the tenant nor to omit to enter the transferee's name in the landlord's rent roll in place to the transferor. This provision was in my opinion, inserted with a view to benefit the tenant. It imposes upon the landlord the duty of impleading the transferee who had given notice of transfer, as a party to the suit or the execution proceeding, 'vide' Section 146 A(3). The provision was not intended to enable the landlord to get an effective rent decree by merely impleading persons whose names appear in the rent roll. The view contended for by Dr. Sen Gupta, if accepted would be hard on transferees from tenants. The names of the landlords may be unknown to the transferee or the transferor and may also be difficult of ascertainment. Again even if the names of the landlords are ascertained and the fee is paid by the transferee, notices of the transfer may not issue or may not be served through the neglect of the Collector or the peon over whose act the. transferee has no control. There is moreover, no provision for a second issue of notice, in case the first deposit of fee fails to be effective.
27. Nor can the provisions of Section 73 of the Act assist the landlord in this case. In the present case, what the transfer of the occupancy holding took place during the pendency of the rent suit. The effect of Section 73 was that both Maneshwari Dasi and Bireshwar Deb Sarkar became, jointly and severally liable to the landlord for the arrears in suit. On the principles enacted by this Court in 'Jitendra's case', 34 C. W N. 821 at p. 825, and which were approved by the Privy Council, the landlord was required either to implead both the transferee and transferor in order to get an effective rent decree or to shew that the transferor represented the transferee as well.
28. Dr. Sen Gupta has also contended that there is nothing in the decision in 'Arthur Henry Forbes v. Bahadur Singh', 41 Ind App 91', which justifies its application to cases of cessation of the interest of a sole tenant or of a cotenant. This contention has been negatived in a series of decisions of this Court. The point has been discussed at length in 'Nrisingha Prosad's case,' (54 Cal. W.N. 683), already referred to.
29. It is also immaterial whether the cessation of interest of the tenant took place before the suit for rent or during its pendency or in the stage of 'execution. In the case of 'Jitendranath Ghose v. Monimohan Ghose,' 34 Cal W.N. 821, the interest of the tenant had ceased before the rent suit. In the case of 'Official Tmstee of Bengal v. Purna Chandra*' 34 Cal W.N. 702', the cessation had taken place 'pendente lite'. In the cases of 'Sm. Binapani Devi v. Banku Behari Mondal,' 47 Cal W.N. 651, Kamalaksya Choudhury v. Jovchandlal Babu,' 48 Cal W. N. 105. 'Minajuddin v. Heronuddin Mallick', 51 Cal W N 814 and 'Nrisindia Prasad Base v. Nil Ratan Singha Roy', 54 Cal W N 682, the cessation had taken place after the passing of the decree for rent. Section 146 A (2) of the Act is in consonance with the view that the cessation of interest may take place either before or after the institution of the rent suit or of the rent execution.
30. The above contention raised by Dr. Sen Gupta is therefore of no substance.
31. The view taken by Mookerji J. in the judgment under appeal to the effect that the decree obtained by the landlord against the recorded tenant, without impleading the transferee from the latter, has the effect of a rent decree and the sale held thereunder in proceedings carried on only against the recorded tenant, has the effect of a rent sale in a case where the landlord did not receive notice of the transfer till after the sale, requires some modification. The question to be considered in such a case is not simply whether the notice of the transfer was served on the landlord but whether the defendant to the suit or the judgment-debtor in the execution proceedings represented the tenancy.
32. The above question is one of fact depending upon the evidence in each case, the fact of non-receipt of the requisite notice is a relevant fact to be considered along with other facts of the case, in deciding the question of representation of the tenancy.
33. It may also be pointed out that the burden of proving whether the defendant in the suit for rent or the judgment-debtor in the execution proceedings represented the tenure or holding rests on the landlord. 'Baikuntha Nath Roy v. Debendro Nath', 11 Cal W N 676.
34. In the present case, the case was not approached from the point of view indicated above. No issue was framed on the point.
35. In these circumstances, we are of the opinion that the following issue should be framed:
'Whether Maneswari Dasi represented the tenancy in the suit for rent and in the execution proceedings.
Both parties will be allowed to lead further evidence on this issue only. The evidence on record will also be evidence in the case.
36. If the Court finds that the tenancy was represented by Maneswari Dasi during the suit for rent and in the execution proceedings, the suit will be decreed. If however, the Court finds that the tenancy was not represented by Maneswari Dassi either in the suit for rent or in the course of the execution proceedings, the suit will be dismissed.
37. The result therefore is that the judgments of Mookerjee, J. and of the Court's below are set aside and this case is remitted to the trial Court for a decision of the suit in the light of the observations made in this judgment.
38. Costs of all Courts and of the appeal will abide the final result of the suit.
39. I agree.