1. This Rule arises out of an application for distribution of rent under Section 88 of the Bengal Tenancy Act and the relevant facts are these. There is a tenure bearing a rental of about Rs. 50. The opposite parties Nos. 1 and 2 having purchased 2 as. 13 gandas 1 kr., 1 krant share of that tenure made the application for distribution of rent in their share. The opposite parties Nos. 3 and 4 are the other co-sharer tenants and the remaining opposite parties are the landlords. The application was resisted by the present petitioners who are the opposite parties Nos. 1 to 7 and they stated that the rent of the tenure was being collected separately by the petitioners and the co-sharer landlords, the rent in petitioners' share being Rs. 30-4 and odd gandas, that in the share of opposite party No. 5 being Rs. 4-6 and odd gandas, that in the share of opposite parties Nos. 6 to 10 being Rs. 1-12 and odd gandas, and that in the share of opposite parties Nos. 14 to 21 being annas 9 and 10 gandas. They contended that the distribution as prayed for would be contrary to the provisions of Section 88 and adversely affected the interests of the landlords. It may be mentioned here that the remaining co-sharer landlords made no objection. The learned Munsif overruled the objection of the petitioners and held that the petitioning tenants would pay separately to the maliks every year Rs. 8-l5-l 1/2 p. as rent in respect of their share. Against that decision the present Rule has been obtained.
2. While dealing with the various points raised in support of the Rule, it is as well to remember that it is possible to have a distribution of rent either at the instance of the landlords or at the instance of the tenants. Section 88 of the Bengal Tenancy Act provides for distribution of rent at the instance of the tenants, the basic idea being to give relief to the tenants while not affecting the interests of the landlords. Thai was the old section and the same idea has been developed in the new section. It is also to be noted that the Court is not bound to make a distribution on the application of the tenants, but the Court may do so having regard to the equities of the case and in this matter definite guidance is given by the two limitations for the purpose of ensuring that the resultant divisions may not be too small to suit the convenience of the landlord. In this Court it is first contended in support of the Rule that the tenant is not entitled to make the application, because it is not found by the Court that the landlords had withheld their consent to the distribution of the rent. There is no substance in-this objection. The condition precedent to the application is that the tenant must give notice of his intention to make the application 6 months before filing such application and this has been done. That the landlord withholds his consent is the reason for the tenant to come to Court. In the present case the more fact that the petitioners are opposing the application is sufficient to show that they are withholding their consent. Supposing the landlords state in Court that they do not withhold their consent, that would not disentitle the tenants from having the distribution of rent as prayed for.
3. The next contention is based on the limitation (ii) which runs in these words:
If the distribution of rent results in bringing the rent for any portion below rupees two and eight annas in case of holdings and rupees four in case of tenures.
4. It is contended that the words 'rent for any portion refers to the share of each tenant and if the rent payable in the share of each tenant is below Rs. 4 in case of tenures, there can be no distribution. I consider that these words must be understood with reference to the actual state of affairs. The 'rent' is the whole rent payable for the 'portion' and the 'portion' must be taken to be the portion resulting from the distribution. For instance, if there are three tenants and one applies for distribution of rent and the other two do not, there would be two portions (1) the portion of the applying tenant and (2) the portion of the remaining two tenants. But if two out of three or all three apply for distribution, then obviously there would be three portions. In the present instance it is not the actual case that each tenant pays his rent separately to the landlords. Therefore, there is no question of rent payable in the share of each tenant.
5. The next argument is that the word 'portion' must be taken, to be the landlord's portion, that is to say, the portion which each individual landlord is entitled to collect from the tenant and it is contended that, where the rent. has already been distributed at the instance of the landlords, there can be no fresh distribution at the. instance of the tenant under Section 88. It is also contended that if the rent payable to each landlord is less than Rs. 4 then the 2nd limitation applies and there can be no distribution of rent. This contention is, based on the petitioner's case that there is in existence a system of separate collections by the landlords as regards this tenure. Whether in fact there is such a binding arrangement does not seem to have been gone into in the lower Court. The learned Munsif calculated the rent payable by the petitioning tenants in respect of their share out of the entire rent and he said:
By such distribution the rent payable either by the petitioning tenants or by the remaining co-sharers jointly to the landlords would be not less than rupees four.
6. Now it has to be remembered that it is possible for the landlords and the tenants to have a binding arrangement as to apportionment of rent payable separately to co-sharer landlords. This arrangement may be arrived at either with the consent of the tenants or in a proper suit for apportionment in which all the landlords and tenants have been made parties. If there is such an arrangement a co-sharer landlord may sue for his own share of the. rent and the tenant would be liable to pay. But if there is no such arrangement a co-sharer landlord may not sue for his own share of rent and ordinarily the tenant is entitled to a joint receipt, on failure of which he is entitled to deposit under Section 61 of the Bengal Tenancy Act. On this point reference may be made to the cases of Iswer Chandra Datta v. Ram Krishna Das 5 C 902 : 6 CLR 421 : 3 Shome LR 13 (FB), Full Bench, and Raj Narain Mitter v. Elcadasi Bag 4 CWN 494 which are followed in Shyama Charan Das v. Jogesh Chandra Ray 16 CWN 774 : 14 Ind. Cas. 292, Satyesh Chandra v. Jillar Rahman 27 CLJ 438 : 45 Ind. Cas. 721 : AIR 1919 Cal. 997 and Kamalesh Ray v. Dwarika, Nath Kotal : AIR1925Cal197 . In the present case the petitioners who are the only co-sharer landlords contesting the application stated that there were separate collections as aforesaid. But the other co-sharer landlords do not contest in this Court also. One of the co-sharer landlords, namely opposite party No. 10 has appeared but he does not contest. Evidence was given by an officer of the petitioners to the effect that their share of the rent was collected separately. They also produced the Record of Rights which contains a column headed 'Bartaman Deya Khajna' 'rent payable at present' and , in this column there are entries showing separate rent against individual co-sharer landlords. Whether in fact there is an arrangement which binds the landlords as also the tenants to pay rent separately to the co-sharer landlords has not been investigated. It is contended that although the petitioners may collect Rs. 30-4 and odd gandas in their share, the remaining co-sharer landlords might be collecting jointly the balance amounting to about Rs. 20. If that is so, there is no question of the arrangement being hit by the statutory limit of four Rupees. But on the other hand, if the other co-sharer landlords are collecting separately the small amounts as stated by the petitioners, then the limitation (ii) would apply. It is important to consider this, because it is noteworthy that in making the distribution under Section 88 the Court may annual or modify the division or distribution made by the landlords if considered unfair and inequitable. Therefore, in order to do complete justice between the parties, the Court will have to consider whether in fact there is already a distribution of rent made by the landlords and whether that distribution should be annulled or modified in order to give effect to the application of the tenants. It is obvious that the matter was not looked at in this light. I think, therefore, that the judgment of the learned Munsif should be set aside and the case remitted to him to determine the matter in the light of the observations made above, opportunity should be given to the parties to produce evidence, if necessary, for the purpose of showing that there is a distribution of rent made by the landlords as alleged by the petitioners and after deciding that point the learned Munsif will proceed to deal with the application finally.
7. The Rule will be made absolute accordingly and the case will be sent back to the lower Court for further hearing. There will be no order for costs in this Court. Future costs will be in the discretion of the lower Court.