1. This appeal was heard once before [see the judgment reported in 64 Ind. Cas. 58 : 48 C.1078] but as the judgment proceeded partly upon a concession made by the pleader for the appellant, the judgment was set aside on review and the appeal has been heard again.
2. The appeal arises out of a suit for rent under the following circumstances : One Purna was the proprietor of an estate in the Sunderbuns. He sold an 8-annas share of the estate to one Chandranath on the 9th August 1897. The latter got his name registered in respect of the 8-annas share under the Land Registration Act. About six years afterwards, on 12th May 1903, the defendant No. 1 took a lease of 400 bighas of land from Purna alone and executed a registered kabuliat in his favour agreeing to pay a fixed rent of As. 350. He appears to have paid rent for some years to Purna alone. Purna died leaving two sons and the plaintiff is the jaradar of an 8-annas share of the estate from the sons of Purna, whose names were registered in respect of the 8-annas share. The plaintiff brought a suit against the defendant for the rent reserved in the lease. The defendant pleaded that he had paid an 8-annas share of the rent to the representative of Chandranath who was registered as proprietor of an 8 annas share of the estate under the Land Registration Act and that, therefore, the plaintiff was not entitled to rent in respect of the 16-annas share. The Courts below have given effect to this contention and the plaintiff has appealed to this Court.
3. Now, the name of Purna was registered under the Land Registration Act in respect of 8-annas share; and, although the name of Chandranath was registered in respect of the other 8 annas share, he had nothing to do with the lease which was granted by Purna alone and without reference to his co-sharer Chandranath. It appears that the land was not cultivated at the time when it was let out as it was to be held rent-free for the first few years. The position, therefore, was this : one of the co-sharers alone let out a portion of the land of the estate in order to make a profitable use of it by bringing it under cultivation through his tenant. 'Whether Chandranath had similarly let out other lands or not, and what the arrangement was between the co-sharers, we do not know. But this much is certain that Chandranath had nothing to do with this lease of 400 bighas.
4. The first question for consideration is whether the provisions of Section 60 of the Bengal Tenancy Act are applicable to the present case. That section lays down that where rent is due to the proprietor, manager, or mortgagee of an estate the receipt of the person registered under the Land Registration Act, 1876, as proprietor, manager or mortgagee of that estate or of his agent authorized in that behalf, shall be a sufficient discharge for the rent, and the person liable for the rent shall not be entitled to plead in defense to a claim by the person so registered that the rent is due to any third person. 'We are of opinion that Section 60 does not apply to the present case. In the first place, that section deals with cases where rent is due to the proprietor of an estate. Here the rent is not due to the proprietor as the plaintiff is not a proprietor, but is an Ijaradar, and as ijaradar the plaintiff could not get his name registered under the Land Registration Act In the next place, even assuming that the rent can be said to be due to a proprietor because it was originally payable to Purna who was a proprietor, the section speaks of the proprietor of an estate, and 'the receipt of the person who is registered under the Land Registration Act as proprietor of that estate.' Purna, to whom the rent was originally due under the kabuliat, executed by the defendant, was, and after his death his sons were, the proprietors of an 8-annas share of the estate. Chandranath, and after his death his representatives to whom the defendant is said to have paid a moiety of the rent and from whom he obtained a receipt therefor, are registered as the proprietors of another 8-annas share of the estate. So that neither Purna's sons, nor the representatives of Chandranath are the proprietors of an estate
5. No doubt, ' proprietor' is defined in Section 3, Clause 88 C. 512 : 10 Ind. Cas. 467 : 18 C.L.J. 693 as a person owning an estate or part of an estate, and it is contended that Chandranath who was the owner of an 8-annas share of the estate is a ' proprietor.' But Section 60 lays down that the receipt of the person registered under the Land Registration. Act 'as proprietor of that estate' shall be a sufficient discharge, so that, although a proprietor may be the owner of an estate or a part of an estate, the section merely speaks of proprietor of that estate which indicates an entire estate. The same observations apply to the sons of Purna from whom the plaintiff obtained his ijara.
6. The expression ' proprietor ' is defined in Section 3 (8) of the Land Registration Act as every person being in possession of an estate or of any interest therein, and Section 78 of that Act lays down : ' No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered or as mortgagee unless the name of such claimant shall have been registered under this Act; and no person being liable to pay rent to two or more such proprietors, managers or mortgagees holding in common tenancy shall be bound to pay to any one such proprietor, manager or mortgagee more than the amount which bears the same proportion to the whole of such rent as the extent of the interest in respect of which such proprietor, manager or mortgagee is registered bears to the entire estate or revenue-free property'.
7. It appears, therefore, that the case where rent is payable to two or more proprietors the extent of whose interest is required to be registered under the Land Registration Act, and which is dealt with in the second part of Section 78 of that Act, is not dealt with by Section 60 of the Bengal Tenancy Act.
8. The words ' that the rent is due to a third person ' in the concluding portion of Section 60 of the Bengal Tenancy Act seem to refer to a third person whose name is not registered at all. The object of Section 60 of the Bengal Tenancy Act appears to be, to afford indemnity to tenants who pay rent to the person whose name is registered under the Act, and to debar them from pleading in defense to a claim for rent by such person that the rent is due to a third person; but the section does not appear to have provided for cases where the names of all the part proprietors have been registered under the Land Registration Act.
9. In the case of Abdul Aziz v. Kanthu-Mallik 64 Ind. Cas. 58 : 48 C.1078, it was held that ' an unregistered part proprietor of an estate is not entitled to succeed as against the defendant who, relying upon Section 60 of the Bengal Tenancy Act, has established that his debt has been discharged by payment of rent to the registered proprietor. ' In that case the name of the part proprietor (the plaintiff) was not registered, and it was pointed out by the learned Judges that there was no contest between two persons both of whom were registered as proprietors under the Act. What the precise position might have been if there had been a contest between two persons both of whom were registered under the Act was not considered in that case.
10. As already stated, although the name of Chandranath was registered in respect of an 8 annas share of the estate he had nothing to do with the lease which was granted by Purna alone, and without reference to him. The land was not cultivated at the time of the lease, Purna as a co-owner could have himself cultivated the land and if, in order to make a profitable use of the lands, a portion (400 bighas) of the estate consisting of 4,000 bighas was let out by him to his tenant, without any denial of Chandranath's right, Chandranath would not necessarily be entitled to a share of the rent merely on the ground of his being a co-sharer. It is true, that Section 60 of the Bengal Tenancy Act is not concerned with questions of title, but if the defendant claims a discharge for the rent by reason of his payment to the heirs of Chandranath, he must bring his case strictly within the terms of the section, when he wants to defeat the suit for rent based upon a lease which he obtained from Purna alone, without reference to Chandranath, although the latter at that time had become co-owner of the estate to the extent of 8-annas.
11. The next question is whether the provisions of the Land Registration Act are applicable to the case. We have already referred to Section 78 of that Act, the second paragraph of which lays down that,' no person being liable to payment to two or more such proprietors...holding in common tenancy shall be bound to pay any one such proprietor...more than the amount which bears the same proportion to the whole of such rent as the extent of the interest in respect of which such proprietor...is registered bears to the entire estate...,' Section 79 provides that that the receipt of any proprietor...whose name and the extent of whose interest is registered under this Act shall afford full indemnity to any person paying rent to such proprietor. It is contended on behalf of the respondent that, having regard to the provisions of Section 78 (second paragraph), the defendant would not be bound to pay more than an 8 annas share of the rent to the plaintiff, and under Section 79 the receipt of the heirsof Chandranath whose names are registered with respect to an 8 annas of the estate, would afford full indemnity in respect to such share.
12. Section 81, however, provides: 'Nothing contained in the three last preceeding sections shall be held to interfere with the conditions of any written contract.' In the present case there was a written contract under which the entire rent was due to Purna and his successors. There is some difference of opinion as to the construction to be placed upon Section 81 of the Act. See Iswar Chandra Sera v. Kali Char an Santra 48 Ind. Cas. 726 : 27 C.L.J. 474 at p. 476, and Surja Kanta Ghatak v. Ananda Mohan Chatterjee 24 Ind. Cas. 866.
13. In our judgment before review, we followed the latter case treating the ijaradar as being in the same position as a proprietor, on the assumption that he is merely an assignee of the rent from the proprietor. But it is contended on behalf of the respondent that the plaintiff as ijaradar is merely a lessee, and that Section 81 has no application to a person who is not himself a proprietor but who has an interest subordinate to a proprietor. We think this contention is correct. The plaintiff is a lessee under the proprietor. Section 81 seems to be a rider to Sections 78 to 80, and as those sections deal with the case of proprietors, there is no reason to think that Section 81 refers to cases of persons other than a proprietor. It is unnecessary, therefore, to consider this question of construction of Section 81. But in that view neither Section 78 nor 79 applies to the present case, as the plaintiff is an ijaradar and not a proprietor. In the case of Sukurulla Kari v. Bama Sundari Dasi, 1 C.W.N. xcii it was held upon a construction of Section 3, Clause 1, Sections 38 and 78 of Act VII of 1876, that a patnidar or an ijaradar is not a proprietor of an interest in an estate within the meaning of the Land Registration Act, and it is not necessary, therefore, for a patnidar or ijaradar to register his name under the Act to entitle him to sue, In the case of Syed Serapat Hossain v, Tarini Prosad Dobey 11 C.W.N. 141, it was held that Section 78 has no application to the case of a person to whom rent has been assigned by a proprietor whose name has not been registered under the Act. It may be said that if the proprietor himself was, under the section, under a legal disability to claim the rent, because his name was not registered, he could not, simply by granting a lease confer upon the lessee a right higher than what he possessed. This was considered in that case and the learned Judges (though with some hesitation) observed as follows : ' Having regard to the fact that Section 78 of Act XII of 1876 is the only provision which prohibits a proprietor from bringing a suit for recovery of rent against a person who is not bound to pay him such rent unless he gets his name registered it seems to us that the plaintiff, being a person who does not come within this prohibitory section, cannot be said to be under the same legal disability as his assignor was.' Having regard to the fact that the Section in terms refers only to proprietors and not to lessees who are not required to get, and cannot get their names registered under the Land Registration Act, we agree with the view taken in the above case. On behalf of the respondents we were referred to an unreported decision of this Court in certain suits in which payment of an 8-annas share of the rent to Chandranath's representatives was held to be a sufficient discharge for the rent. (See Second Appeal 1388 of 1918 and analogous cases decided by Teunon and Newbould, JJ. on 25th June 1920). Those cases, however, did not relate to the rent of the 400 bighas covered by the kabuliat in the present case, but related to other lands though of the same estate, and the questions considered by us do not appear to have been considered by the learned Judges in those cases.
14. We are accordingly of opinion (being the same which we held before review, though on different grounds) that the decrees of the Courts below should be set aside and the case remanded to the Court of first instance for decision of the other questions in the case and disposal of the case according to law. Costs to abide the result.