1. This second appeal is by the defendant and arises out of a suit for rent brought by the plaintiff for a period commencing from 1321 down to 1324 at the rate of Rs. 25-12-5 gandas annually and also for cesses. The suit was based upon a kabuliyat executed by the defendant on the 25th November 1910.
2. The defence of the defendant was that Forong the father of the defendant who was the original tenant left a widow and also a daughter who were alive and that as the widow and the daughter had not been made parties to the suit, the suit for rent was not maintainable. The defendant further pleaded that the kabuliyat was vitiated by fraud and collusion. The defendant also pleaded tender of the rent which was not accepted. Defendant further pleaded that before the kabuliyat was executed the rent paid by his father was at the rate of Rs. 22-14-10 gandas and that the rent was paid at that rate.
3. The Court of first instance found that the kabuliyat was vitiated by fraud and, therefore, was not binding upon the defendant and that, therefore, the rent payable by the defendant was at the rate of Rs. 22-14-10 gandas and gave a decree at that rate. That Court further held that the decree granted to the plaintiff was merely a money decree as the other two heirs of Forong were not made parties to the suit.
4. On appeal by the plaintiff the learned District Judge found that there was no fraud practised in taking the kabuliyat from the defendant and that the defendant fully understood the terms of the contract and the reason for the enhancement of the rent by the kabuliyat from Rs. 22-14-10 gandas to Rs. 25-12-5 gandas. The learned District Judge further found that the defendant represented the tenancy after the death of his father and, therefore, the suit for rent was properly constituted against the recorded tenant and, therefore, the decree would be a rent decree under the law. Upon these findings the learned District Judge made a decree for the amount claimed by the plaintiff; and against that decree the present appeal has been filed by the defendant.
5. The only point raised before me was that the finding of the learned District Judge that the defendant represented the tenancy was not based upon evidence upon which such a finding can be sustained. It was further contended that as Forong admittedly left two other heirs and the defendant did not represent the tenancy the decree made by the learned District Judge could not have the effect of a rent decree. In order to understand this argument it is necessary to state a few facts. It appears that the tenancy admittedly belonged to one Forong who died in the year 1907 or 1908 leaving behind him a widow a daughter and the defendant as his only son. The defendant, as I have already stated, executed a kabuliyat on the 25th of November 1910 in favour of the landlord with respect to the tenancy which Forong had left and by that kabuliyat agreed to pay an enhanced rent at the rate of Rs. 25-12-5. It appears that no question was raised by the widow or the daughter all these years as to their share of the jote left by Forong. The defendant continued in possession of the holding and paid rent fixed by the kabuliyat; and not only that along with the execution of the kabuliyat he executed a kistibandi bond in favour of the landlord for all the arrears of rent due before the execution of the kabuliyat. In the year 1914 the plaintiff brought a suit for rent against the defendant and it was decreed ex parte against him on the 2nd June 1914. An application was made by the defendant to set aside the ex parte decree but that application failed. The present suit for rent was brought against the defendant on the 20th April 1918. It is unnecessary to follow the chequered career of this litigation as we ore not concerned with the earlier decisions in this case. I have already stated what the findings of the two lower Courts in the present trial are.
6. As to the first point the answer is a very simple one and that is this the question as to whether one heir or some of the heirs of a deceased tenant represent the tenancy is primarily a question of fact. If any authority is needed for a proposition like this would refer to the case of Gagan Sheik v. Abajan Khatun 10 Ind. Cas. 116 : 14 C.L.J 180. The learned District Judge has referred to a number, of circumstances and the conduct of the parties in arriving at the conclusion that to the knowledge of the other heirs the defendant alone was allowed to hold the tenancy and on the findings in the present case it appears that the defendant held the tenancy not only for himself but also on behalf of the other heirs of his father. The learned District Judge found that the mother and the sister acquiesced in the arrangement under which the defendant alone was allowed to execute the kabuliyat and to represent the tenancy in the sherista of the landlord.
7. As to the second question it appears to, me that mere absence of some of the true and real heirs of a deceased raiyait from a suit for rent does not necessarily make it a suit only against some of the heirs of the deceased tenant. It is a suit against the tenant who represents the tenancy when the suit for rent is brought. When a raiyat dies it very often happens that the male members of the family are allowed to represent the tanancy. So far as the landlord is concerned they are recorded as tenants in the landlord's sherista. The recorded tenants pay rent for the whole holding and the landlord recognizes them as the some tenants of the holding so far as he is concerned. Such an arrangement does not really extinguish the right of the other heirs. If they are ignored they have a right to establish their rights against the usurper and may ask the landlord to record them also as joint tenants. But until that is done the landlord has a right to institute suits for rent against the recorded tenants and the decree which the landlord obtains in such a suit would have the character of a rent-decree although it is obtained against one or some of the heirs of a deceased tenant, the principle being that the landlord is not bound to go beyond his books to find out who the tenants are. That such a decree has the effect of a rent-decree has been repeatedly held by this Court for a long time. I shall refer to only one or two cases where the question was discussed and decided. In the case of Afraz Mollah v. Kulsumannessa Bibi 10 C.W.N. 176 : 4 C.L.J. 68 Mr. Justice Mukherji in his judgment at page 179 Page of 10 C.W.N.--[Ed.] says as follows. 'If A and B are joint tenants of a tenure and if by an arrangement amongst themselves and the landlord, A above is recorded in the books of the latter, A must be taken as between the landlord and his tenants to represent the tenancy completely This is a perfectly intelligible principle, because, as pointed out in the case of Rupram Nama Sudra v. Iswar Namasudra 6 C.W.N.--[Ed.], the recorded tenant represents the ownership of the whole tenure with the consent of his co-sharers'. The same principle was also laid down by Mr. Justice Mukherji in the case of Gagan Sheikh v. Abejan Khatun 10 Ind. Cas. 116 : 14 C.L.J 180 to which I have already referred. Where the tenant recorded in the landlord's sherista is so recorded either with the consent of the other heirs or in the absence of the other heirs who do not take any Interest in the tenancy or are not prepared to undertake the responsibility for paying rent as between the landlord and the tenant, the recorded tenant represents the tenancy. If the conduct of the landlord is free from any fraud or collusion and if the recorded tenant without any objection by the other heirs continues to pay rent to the landlord, I think the landlord is justified in treating the recorded tenant as the tenant of the holding and in seeking his remedy for rent against such recorded tenant, because, as I have already stated the recorded tenant in the landlord's books represents the tenancy and the landlord is not bound to go beyond his books to find out the tenants of the holding. As I, have already stated such representation of the tenancy before the landlord by some of the heirs does not, in any way, affect the rights of the other heirs and until such rights are enforced the landlord is not bound to recognize them.
8. In the present case the original tenant Forong died in 1907. The only heir of Forong who came forward, (and it was quite natural that the son should come forward) and took the responsibility of paying the rent due under the tenancy and executed a kabuliyat agreeing to pay an. enhancement of rent was the present defendant. Not only that, it was he who alone, undertook the responsibility of executing a, kistibandi bond for arrears of rent for the years down to the date of the kistibandi bond. The rent was all along paid by the defendant and as I have already stated he did so without any objection until the present suit was brought. In fact so far as the landlords and the defendant was concerned it was a new tenancy. It is in the present suit that for the first time the landlord was met with the plea of that, there were other heirs who inherited Forong's tenancy along with the defendant. It would be extremely difficult, if not impossible, for the landlords of agricultural holdings to find out on the death of a raiyat who the heirs are and when some of the heirs without any objection by the other, heirs get themselves recorded in the landlord's sherista and undertake to pay the rent payable for the tenancy the position may be looked at either as one or some of, the heirs represent the whole tenancy, lathe interest of the other heirs or as one of new arrangement between the landlord and the heirs who get themselves recorded in the place of the deceased raiyat. An arrangement like this cannot be resiled from either by the landlord or by the recorded tenant unless and until some of the other heirs establish their right against, the recorded tenant and the landlord.
9. In this view Of the law I think it is quite clear that the defendant is bound to pay the entire rent due for this tenancy and the decree which the landlord will obtain will have the character of a decree for rent. On this ground I hold that the judgment of the learned District Judge is correct and this appeal fails and is dismissed with costs.