Asutosh Mookerjee, Acting C.J.
1. This is an appeal by the third defendant in a suit for declaration of title to a Patni Taluk. The patni was created on the 15th January 1879 and was in its inception, held by Obedulla Khan under Nilmoni Bhatterjee as the Zemindar. Subsequently one Gohar Ali Kazi purchased an one-eighth share both in the patni and in the Zemindari. The result of these pruchases by Gohar Ali was that the patni interest in the one-eighth share merged in the Zemindari interest in the one-eighth share. All that remained of the original patni was a seven-eighths share under the owner of an equal share of the Zemindari. The lands were also partitioned, so that specific lands corresponding to seven-eighths of the lands comprised in the original patni were allotted to the patnidar. This patni was brought to sale under the Patni Regulation on the 15th May 1913. The point in controversy is, whether this was a valid sale under the Regulation and passed a good title to the purchaser.
2. The appellant contends that there was no valid sale and that as it was imposible in the events which had happened to bring to sale the entire patni as created on the 15th January 1879, no sale could have taken place under Regulation VIII of 1819. We are of opinion that this contention is unfounded.
3. Reliance has been planed on the first paragraph of the first clause of Section 8 of Regulation VIII of 1819 which provides as follows: 'Zemindars, that is, proprietors under direct engagements with the Government, shall be entitled to apply in the manner following for periodical sales of any tenure upon which the right of selling or bringing to sale for an arrear of rent may have been specially reserved by stipulation in the engagements interchanged, on the creation of the tenure.' In order to determine whether this provision is applicable to the patni as it existed after an one-eighth share thereof had merged in an equal share of the superior interest, let us examine the terms of this clause. The test to be applied is, whether this is a tenure, which at the time of its creation, was made subject to a condition that it could be brought to sale for an arrear of rent and whether there was in the engagements interchanged a stipulation reserved that the property could be sold by the Summary procedure prescribed by Section 8 of Regulation VIII of 1819. The answer can only be in the affirmative. The fact that the original patni had shrunk, by course of events subsequent, into seven-eighths of its original size, has not freed it from the condition imposed upon it at the time of its creation. In fact what has happened is precisely what is contemplated by Section 37 of the Transfer of Property Act which lays down the rule for the apportionment of benefit obligation on severance. That provision is plainly applicable to patni tenures, and there can be no room for doubt that the rent payable in respect of the seven eighths share of the patni was seven eighths of the original rent. This rent, in our opinion, could be summarily levied under the provisions of the Regulation, it is conceded that the contrary view has never been suggested, far less maintained, since the enactment of the Patni Regulation just a century ago: This is significant as transformations of patni tenures, similar to what has happened here, are by no means infrequent under a variety of conditions To take one illustration, as pointed out by a Full Bench of this Court in Ramnarayan Banerjee v. Jayakrishna Mookerjee B.L.R. Sup. Vol. 1 at p. 70 : 1 W.R. 299, a patnidar, like any other lease-holder may bring a suit against the Zemindar for abatement of rent. It does not appear to have been ever suggested that if abatement of rent is granted on the ground that part of the land of the patni has been resumed by Government or has disappeared by diluvion, the provisions of the Regulation cease to be applicable to the patni.
4. We are of opinion that there is no ground for this appeal, which must be dismissed with costs.
Ernest Fletcher, J.
5. I agree.