1. The plaintiff purchased the interest of one of several co-tenants of a transferable tenure. The purchase was made in June 1912. In October 1912, there was an entry made in the Record-of-Rights, recording his vendor as one of the co-tenants. In December 1912, proceedings were taken by the landlord under Section 105, Ben. Ten. Act, for enhancement of rent, and to those proceedings the original tenants, including the vendor of the plaintiff, were made parties. Enhancement was granted, and, in 1917, a suit was brought by the landlord against the original co-tenants for arrears of rent from 1913 to 1916. He obtained an ex parte decree on 8th December 1917, and the decree-holder himself purchased the tenure at the auction-sale pursuant to the decree on 20th December 1918. On 19th June 1924, the plaintiff brought the present suit to establish his title to the share of the co-tenant from whom he purchased. The question which falls for determination is whether, in the circumstances obtaining in this case, the plaintiff is entitled to claim that the interest in the tenancy which he purchased did not pass by the sale.
2. Now, the ordinary law is that where a landlord sues some only of the cotenants of a tenure, obtains a decree, and purchases the tenure in pursuance of the decree, all that he obtains by the purchase is the interest of the defendant-judgment-debtors. But the whole tenure will pass under the auction-purchase pursuant to the decree if the facts warrant a finding that the tenants who were impleaded in the circumstances represented the whole estate. The question in this case is whether the facts justify such a finding. Now, there is no evidence and no finding that the plaintiff expressly represented to the landlord that the co-tenants who were sued represented the tenure including the share therein that he had purchased, and there is no evidence and no finding that the plaintiff knew of the proceedings relating to the Record-of-Bights, or those taken under Section 105, Ben. Ten. Act. In the circumstances obtaining in this case it does not appear that there was any evidence to justify a finding that the tenants who were sued represented the whole estate. In these circumstances the ordinary rule of law will apply, and the plaintiff is entitled to claim the share of the tenure which he has purchased.
3. The result is that the decrees of the lower Courts cannot stand. There will be a declaration that the plaintiff is entitled to the share of the tenancy which belonged to defendant 2 in the suit. He is also entitled to joint possession of the said share with defendant 1, and to mesne profits in respect of that share from defendant 1. The suit must be remanded to the trial Court in order that the amount of the mesne profits may be ascertained. The plaintiff is entitled to his costs in all the Courts.
4. I agree.