Khetter Mohan Pal and Others vs Pran Kristo Kabiraj and on his death, his widow and executrix Sm. Kadambini Debi

The Subordinate Judge, reversing the decision of the Munsif has dismissed the Plaintiffs'' suit for the rent of a dur-putni tenure on the sole ground that the Defendant could not alone be held liable for the entire rent of the tenure, and that the other persons who were co-owners with him should have been joined as Defendants. We think the decision of the Subordinate Judge is wrong. The Defendant says that his father and Kally Proshad Kabiraj were the original owners of the dur-putni which, according to the plaint, still stands recorded in the name of Kally Proshad Kabiraj. It is not stated when those persons died, but Defendant says that he and his stop-brothers succeeded to the half share of his father, and that Kally Proshad''s share devolved on his daughters. The Defendant is admittedly in possession of the entire land included in the dur-putni, and it may be conceded that he is, as he says, in possession not as dur-putnidar but under a se-putni grant made by his father and the heirs of Kally Das. The Plaintiffs have not shown that the Defendant is the recorded tenant of the tenure; the Defendant, on the other hand, does not even allege that any of the other heirs of his father or of Kally Proshad got their names registered as tenants in succession to the original holders or that they have been paying the rent and taking receipts for it. Beyond that the Defendant actually paid the rent for the year previous to that for which the rent is now claimed, it is not in fact shown how or by whom the rent for previous years has been paid. We must take it that the tenure still stands recorded in the name of Kally Proshad, that none of the heirs of the original holders now dead have got their names registered in the Sheris-tah of the landlord, that the Defendant is one of the heirs and as such in possession of at least his share of the dur-putni, and that ho is in actual possession of the entire land, although, it may be, under a subordinate right.

Sec. 15 of the present Tenancy Act requires that when a succession to a permanent tenure takes place, the persons succeeding shall give notice of the succession. Sec. 26 of the former Tenancy Act (VIII of 1869, B. C.) and sec. 27 of Act X of 1859, required the holders of a tenure such as this to register in the landlord''s Sheristah all successions thereto and divisions among heirs in cases of inheritance, and the landlord was required to admit to registry and thus give effect to all such successions and divisions. It is therefore the duty of the persons succeeding by inheritance to a permanent tenure to notify the succession and it is not the duty of the superior landlord to find out who all the heirs of a deceased tenure-holder are.

In the present case the Defendant is admittedly one of the heirs and as such in possession and liable for the rent. He cannot, we consider, defeat the Plaintiff''s suit by showing that there are other heirs equally liable unless, possibly, he goes further and shows that their names have ''been notified to the landlord as successors of the original holders, or that they have been paying the rent and getting receipts as successors. There is no law, so far as we know, which compels a landlord in order that he may succeed in a suit for rent, to sue all the heirs of a deceased tenure-holder although he has had no notice who the heirs are. The decision of the Subordinate Judge, if right, would apply equally to a ease in which there were many heirs, possibly very remote ones and he omitted to sue any one of them of whose succession ho had no notice. The landlord cannot be placed in a worse position than he would otherwise occupy by the circumstance that none of the heirs have notified their succession. We reverse the decision of the Subordinate Judge and remand the case in order that he may dispose of all the questions arising on the appeal before him and we give the Appellant the costs of this appeal.

Ameer Ali, J.

I agree.