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Rai Bahadur Lalit Mohan Sinha Roy Vs. Haran Chand Khamrui and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.243
AppellantRai Bahadur Lalit Mohan Sinha Roy
RespondentHaran Chand Khamrui and ors.
Cases ReferredChamatkarini Dasi v. Triguna Nath Sardar
Excerpt:
contract act (ix of 1872), section 43 - suit for rent against some only of tenants' heirs, maintainability of--joint promisors, non-joinder of some of, whether fatal to suit. - .....brought against certain tenants to recover arrears of rent. it appears from the evidence that one gour mohun and his brothers were entitled to the holding. gour mohun was dead and the suit was brought against his brothers and some of his heirs, the remaining heirs of gour mohun not being made parties to it. the rent in this case sued for in the plaint, which was traversed in the written statement, was clearly the rent that had become due from the defendants. there is no suggestion in the case anywhere that portion of this rent accrued due in the lifetime of gour mohun. but the point that was urged before the learned judge in the lower appellate court and before the learned munsif and with success was that, as the heirs of gour mjhun succeeded on his death, therefore, no suit could be.....
Judgment:

Fletcher, J.

1. This is an appeal from the decision of the learned Subordinate Judge of Hooghly, dated the 5th February 1915, affirming the decision of the Munsif at Arambagli. The suit was brought against certain tenants to recover arrears of rent. It appears from the evidence that one Gour Mohun and his brothers were entitled to the holding. Gour Mohun was dead and the suit was brought against his brothers and some of his heirs, the remaining heirs of Gour Mohun not being made parties to it. The rent in this case sued for in the plaint, which was traversed in the written statement, was clearly the rent that had become due from the defendants. There is no suggestion in the case anywhere that portion of this rent accrued due in the lifetime of Gour Mohun. But the point that was urged before the learned Judge in the lower Appellate Court and before the learned Munsif and with success was that, as the heirs of Gour Mjhun succeeded on his death, therefore, no suit could be maintained against the heirs to recover the arrears of rent unless all the heirs of Gour Mohun were parties to the suit. The decision that is relied upon in support of that proposition is the decision of Mr. Justice Mookerjee and Mr. Justice Sharfuddin in the case of Kashi Kinhar Sen v. Satyendra Nath Bhadrn 7 Ind. Cas. 840 : 15 C.W.N. 191 : 12 C.L.J. 642. But the facts of that case, as appears from the judgment of Mr. Justice Mookerjee, are very different from the facts of the present case. In that case, the rent sued for became due in the lifetime of the father and some of the heirs only were sued for the arrears. Mr. Justice Mookerjee in a considered judgment held that the suit did not lie against some of the heirs only of the deceased father. On the other hand, we have got the decision of Jenkins, C. J., and Mullick, J., in the case of Chamatkarini Dasi v. Triguna Nath Sardar 19 Ind. Cas. 989 : 17 C.W.N. 833, the facts of which case are practically oil all fours with he facts of the present cae There, the learned Chief Justice stated in the course of his judgment that the liability of the tenants to pay the rent was contractual and that, applying the provisions of Section 43 of the Indian Contract Act, any one or more of the promisors could be compelled to fulfil the promise. He pointed out, however, that for the purpose of bringing the holding to sale under Chapter XIV of the Bengal Tenancy Act, other considerations would arise and it might be that, ordinarily, in order to pursue the special remedies given by Chapter XTV of the Bengal Tenancy Act, it was essential that all tenants should be made defendants in the suit. But so far as the plaintiffs' getting a money-decree was concerned, the learned Chief Justice expressed the clear opinion that, under the terms of Section 43 of the Indian Contract Act, the plaintiffs were entitled to get a decree for money against any one or more of the tenants. That seems to me to be clearly right. A count for rent is the common indebitatus count, namely, a count to recover a debt. That clearly falls within the provisions of Section 43 of the Indian Contract Act and the promisee is entitled to require performance by any one or more of the promisors. The mere absence of one of the promisors in a suit in this country, where no plea in abatement or a similar plea is permitted, is not fatal nor a bar to the suit. The Indian Contract Act provides ample remedies where one of the joint promisors has been sued and has paid the whole rent for that promisor to recover the amount paid by him in excess of his share by contribution from the other promisors. I, think, in the present case, the appeal ought to be allowed and the decrees of the Courts below reversed and in lieu thereof a decree should be passed in favour of the plaintiff for the amount claimed in the plaint with interest thereon at the rate of six per cent, per annum, from, the 5th January 1914, until realization. The respondents must pay to the appellant his costs in this Court as well as in the Courts below.

Teunon, J.

2. I agree.


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