1. This appeal arises out of a suit for rent The plaintiffs who are three in number sued as legal heirs of one Bipradas, the defendant, who is a purchaser from the original tenant, one Banwari Das for the rent of the years 1324 to 1327 with cesses and interest at the rate of Rs. 135 a year. The defendant, it may be noted here, purchased by a kobala from Banwari in Magh 1325. The defence was that the defendant was not liable for rent for the year 1324 because she was not in possession and she further pleaded payments over and above those that had been credited in the plaint and also she objected to the claim for cesses and interest as excessive. The First Court held that she was. not liable to pay rent for 1324 and 1326'and gave the plaintiff a proportionate decree. The plaintiff appealed to the District Court with regard to the rent for 1324 which had been disallowed by the First Court. The lower Appellate Court held that the defendant was not liable to pay rent for 1324 as she was not in possession of the tenure in 1324 and that consequently, she could not be said to represent the tenure for that year. The, plaintiff has appealed to this Court with regard to the rent of 1324 and his contention is that under Section 65 of the Bengal Tenancy Act the rent is a first charge on the property and that the purchaser purchased it with notice of the charge and of his liability to pay any rent that might be due at the time he purchased. The respondent contends first of all, that the tenant from whom he purchased was a necessary party and that in his absence no rent decree could be obtained for the year 1324 and that all the landlords were not made parties to the suit at the time when it was instituted and that the landlord who was not originally made a party was added only ' on the 6th February 1922 and for these reasons she was not liable to pay rent for 1324. With regard to the first contention' of the appellant I think that he must succeed. The rent is a first charge and the person who purchased the property must betaken to have purchased the property charged with the rent due at the time of his purchase. It is, therefore, not for this reason necessary that the tenant who was in possession in 1324 should be made a party to. the suit.
2. With regard to the other contention of the respondent that all the landlords were not parties to the suit at the time it was instituted and that when the. landlord who had not been, originally made a party was', made a 'party subsequently, the claim for rent for 1324 was barred, it will appear that the suit was originally instituted by three persons, Manmatha Pal Chowdhury, Amiya Pal Chowdhury and Lilabati Roy as executors of the estate of the deceased Bipradas. At this time these persons fully represented the estate of the deceased and Ranjit the other sen was not a necessary party. Subsequently, it appears that the Will for some reason or other was revoked and this being done, Ranjit was. added as a party and the suit was prosecuted by the legal heirs of Bipradas in place of the executors; It is, however, quite clear that at the time of the, institution of the suit the estate was properly represented by the executors and, therefore, no question arises as to all' the landlords not being parties to the suit: So far as can be seen the whole of the estate of Bipradas was properly represented during whole of the suit.
3. The appellant is entitled to a decree for 1324 against the tenure only and he is not entitled to any personal decree against the defendant. The decree of the lower Appellate Court will, therefore, be modified to this extent that it is ordered that the appellant is entitled |o rent cesses and interest for the year 1324 in addition! to, what has already been decreed this portion of his claim is concerned the decree will be one against the tenure only and not a personal decree against the defendant.
4. The appellant will be entitled to his costs in this and in the lower Appellate Court and proportionate costs in the First Court.
5. I agree.