1. The plaintiff, Maharajah Manindra Chandra Nandi, is the proprietor of two estates bearing separate numbers (Nos. 136-1 and 137) on the revenue, roll of the Rajshahye District. The tenure to which the suit relates comprises these estates and was created in the year 1251 (1841) as a patni taluk, the rent reserved being Rs. 27,C01 per annum. The kabulyat, dated 26th Ashar 1251, executed by the original holder, is recited and its terms are embodied, in the kabulyat dated 16th Srabun 1279 (1872), executed in favour of the plaintiff's predecessor-in-interest by the father of defendants Nos. 1-3, Babu Mohini Mohan Roy, who had purchased the tenure in 1871. By these documents express power is given to the landlord in default of payment of any part of the rent due for any year to bring the tenure to sale under the 'provisions of Regulation VIII of 1819. It appears that the plaintiff made two applications to the Collector to sell the tenure under the Regulation, one in respect of the rent due for the year 1313 and the other in. respect of the rent due for the following year. Both applications were refused and on the second occasion, the matter having been brought before the Board of Revenue, the Collector's action was upheld by an order of the Board dated the 17th September 1908.
2. The plaintiff brought the present suit, firstly, to recover the rent and cesses due for the years 1313, 1314 and 1315 with interest, the claim being laid at Rs. 1,25,174 odd and a further claim being made for interest during the pendency of the suit and up to the date of payment, and, secondly, to obtain a declaration of his right to have the tenure sold under Regulation VIII of 1819. The defendants Nos 1-4 were impleaded as being the' heirs of Babu Mohini Mohan Roy. It has been found, however, (hat on a partition of the property left by the latter, the tenure in question was attached to the defendant No. 1. The defendant No. 5 is Receiver to the estate of that defendant.
3. In the lower Court, the plaintiff obtained a, decree against the defendant No. 1 for the sum claimed with interest after decree at the rate of six per centum per annum. Apparently, by inadvertence the learned Sub-Judge omitted to allow interest during suit. He also rejected the prayer for a declaration. This appeal preferred by the plaintiff is confined to these two matters. The defendants Nos. 1 and 5 were not represented before us and we have not had the advantage of hearing argument on their behalf.
4. As to interest during suit, it should have been allowed at the same rate as interest after suit. The decree of the Sub-Judge will be modified accordingly.
5. The question whether the declaration sought for should have been made is more difficult. The Sub-Judge refused to make the declaration not only on the grounds suggested by the order of the Board of Revenue to which we have referred but also on the further ground that the declaration is unnecessary for the purposes of the suit as a suit for arrears of rent and in the proper exercise of judicial discretion ought not to be made. In connection with the Board's order, the Pleader for the plaintiff (Babu Ram Charan Mitter) very properly drew our attention to note 31 on page 77 of the Board's Manual of the Revenue and the Patni Sale Laws (Edition 1906). The view, which the Board appear to have taken in such cases as the present, is that a tenure covering more than one revenue estate is not a patni tenure within the meaning of Regulation VIII of 1819 and that the zemindar or landlord has, therefore, no right to have* recourse to that Regulation for the recovery of arrears of rent in respect of it. We do not find that this view is based upon any express prohibition in, or any particular provision of, the Regulation. The reasoning, so far as it can be gathered from the material before us, is of a general character, to the effect that it is of the essence of a patni tenure that it should be carved out of one estate, that the Regulation does not contemplate patni tenures embracing more than one estate, and that to admit the existence of such patni tenures would lead to eomplica-fcfetions and is contrary to public policy or the policy of the revenue laws. These propositions are not self evident and, as at present advised, we are not prepared to say that they correctly interpret the law. At the same time, we feel that the matter is one of some importance and that it is inconvenient that we should be called upon to arrive at a decision upon it in a proceeding in which the Revenue authorities have had no opportunity of being heard. The issue lies between the plaintiff and the Collector who refused to sell the tenure at the plaintiff's instance rather than between the plaintiff and his tenants, and so far as any revenue or fiscal question is involved, the Collector would not be bound by any decree which might be made in this suit to which he is not a party and of which he has had no notice. In other words, for the present purpose the suit has not been properly framed. It is within the discretion of the Court to refuse to make a declaratory decree and, in the circumstances, while we do not accept all his reasons, we agree on the whole with the Subordinate Judge that no declaration should be made. 'We come to that conclusion without expressing any final opinion on the question whether the plaintiff has or has not the right which he claims.
6. The result is that the appeal partly succeeds and partly fails. The plaintiff is entitled to costs in proportion to his success. The defendants not having appeared will have no costs.