JUDGMENT
Hugh Walmsley, J.
1. I agree in the view expressed by my learned brother Mr. Justice B.B. Ghose in the judgment which he is going to deliver.
Greaves, J.
2. I also agree, in the view expressed in that judgment.
C.C. Ghose, J.
3. The question that has been referred to the Full Bench is as to whether a suit for rent is maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors-in-interest on the record. In my view, the answer to the question ought to be in the negative. It will serve no useful purpose to discuss the conflicting authorities on the point. It is sufficient for me to observe that I adhere to the view which I expressed in the case of Abinash Chandra Roy v. Fulchand Chaudhuri.(7). I have heard nothing during the (sic) of the argument to induce me to (sic) from the opinion expressed by me in the above case. In my opinion, the suit as framed, should be dismissed and the appeal preferred by the defendants allowed.
B.B. Ghose, J.
4. The facts of the case Which led to this reference shortly stated are these: The plaintiff is entitled to 4 annas share of a taluq under which there is a tenure Which formerly belonged to one Gour Sundar Singh and which by successive devolutions and assignments has come into the possession of about twenty persons. The plaintiff has sued for his share of the rent of the tenure for the years 1324 to 1327 B.S., five persons some of whom have acquired their interest by succession and others under assignments from some of the heirs of Gour Sundar. All these persons were in possession during the period in suit along with (sic) who have not been made parties. (sic) only plea which now requires consideration is that the suit is not maintainable as the other tenants have not been made parties. The Trial Court passed a decree for money personally against the defendants and held that the tenure would not be bound by the decree, and on appeal that decree was affirmed by the Subordinate Judge. One of the defendants preferred a second appeal to this Court. There are two lines of cases in this Court taking contrary views, which has made it necessary for a, reference to the Full Bench of the question “whether a suit for rent is maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors-in-interest on the record.”
5. It would scarcely serve any useful purpose to examine the various conflicting authorities. The question should be decided on well-recognised general principles. It is argued that the tenancy as well as the liability for payment of rent has been inherited by the representatives of the deceased tenant as one body and this body as a whole is liable for the rent on the contract of their predecessor. If the landlord omits to implead anyone of them in his suit for rent, the suit is defective and must be dismissed for not having been brought; against the body of representatives as a whole. This argument seems to me to be grounded on a misconception. The heirs did not take the tenancy as an entire body forming as it were a partnership or a corporation, the individual members of which have no definite interest. They took as tenants-in-common, each having a definite share’ in the whole, which he might deal with in any way he pleased. As a matter of fact, as already stated, some of the heirs of the original tenant had assigned their interest to third persons. The liability of, a tenant to pay rent arises from the fact of possession of the land as a tenant where there is no express contract, and all persons in possession of land as tenants are under an implied obligation to pay the rent for the land to the landlord, whether they got into possession by right of succession or assignment. A tenant-in-common is entitled, to possession of every part of the estate and there is privity of estate between him and the landlord in the whole of the leasehold. The law imposes a liability on a tenant-in-common based on privity of estate for all covenants running with the land, and as his estate is an estate in the whole of the leasehold, there is no reason why he should not be liable for the entire rent. This view is supported by what is stated in Leake on Contracts, 7th, Edn., at p. 931, that each, tenant-in-common being possessed of the whole may be sued separately upon covenants running with the land. Thus whether a contract is implied for payment of rent by all tenants-in-common in possession of a leasehold, or whether it is held that the law imposes the liability for payment of rent by reason of privity of estate, anyone of such tenants may be sued for the entire * rent due to the landlord. This may be either in accordance with the provisions of Section 43 of the Indian Contract Act which applies to express as well as implied promises, or under the general law based on privity of estate.
6. It is hardly necessary to add that a decree in such a suit will not have the effect of a decree for rent under Ch. XIV of the Bengal Tenancy Act.
7. On the grounds stated above I would answer the question in the affirmative, with the result that the appeal should be dismissed.
Mukerji, J.
8. The authorities bearing upon the point involved in this reference have all been noticed and their precise effect accurately summarised in the judgment of my learned brother Chatterjea, J., in the case of Mohendra Nath Bose v. Abinash Chandra Bose (1923) 1 K.B. 469 at p. 471 : 92 L.J.K.B. 326 : 128 L.T. 768 : 67 S.J. 190 : 39 T.L.R. 825 and it is unnecessary to discuss them as the question has to be answered upon broad and general principles.
9. The question is whether a suit for rent is maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors in-interest on the record. To answer this question, the matter has to be considered from two distinct points of view: Firstly, from the point of view of the defendants’ liability, and secondly from the point of view of the frame of the suit.
10. As regards the first of these matters, we start with the position that in view of Section 88 of the Bengal Tenancy Act, it must be conceded that when a person obtains a share of a tenure either by assignment or by inheritance he becomes a co-tenant with the other tenant or tenants in the whole tenure, and in so far as the relations between him and his landlord are concerned he cannot be deemed to hold any estate in severalty. Each one of the persons in whom a share of the estate may vest by assignment or inheritance becomes a tenant-in-common in the whole of the estate by reason of the indivisibility of the estate without the landlord’s consent. Each one of such co tenants has a privity of estate with the lessor in respect of the whole estate. The proposition is thus enunciated in Foa on Landlord and Tenant, Sixth Edition, p. 469: “Where, however, the share of the demised premises is not held by the assignee in Severalty–as where they become vested in joint tenants or tenants-in-common, the case is different because he, with others, holds the whole estate, and privity in respect of it exists accordingly between him and the lessor.” From this it would seem to follow that each of the joint tenants or tenants-in-common would be liable to the lessor on the covenants running with the land, and so for the whole rent. The contrary view was contended for in the case of United Dairies, Ltd. v. Public Trustee (1923) 1 K.B. 469 at p. 471 : 92 L.J.K.B. 326 : 128 L.T. 768 : 67 S.J. 190 : 39 T.L.R. 825. In that case Greer, J., observed as follows: –“The present case was argued before me on the assumption that in English Law, whatever may be the case in Ireland, a tenant-in-common is not liable for the whole rent, but only for a proportionate part; but I do not think this question appears to be definitely concluded by any of the decisions in the English Courts.” The learned Judge exhaustively dealt with the authorities bearing upon the point and explaining the decision in the case of Merceron v. Dawson (1823) 5 B, & C. 479 : 8 D. & R. 264 : 4 L.J.K.B. (O.S.) 211 : 108 E.R. 179 which apparently contains dicta to the contrary effect, (sic) observed as follows: “It seems to me on the authorities, that it has never been conclusively established that ah assignee holding with other tenants under the terms of the original lease is not liable jointly with those other tenants for the whole rent. He has an interest in the whole of the land leased…and I see no valid reason why tenants-in-common should be in a position as regards liability for rent different from that of joint tenants. I am inclined to think that each of the tenants-in-common has the privity of estate with the landlord in the whole of the land leased.” The reasoning of the learned Judge seems to be unassailable and i agree in his conclusions. I am accordingly of opinion that each one of the defendants in the present suit is liable for the entire rent and there can be no objection to the maintainable of the suit on that ground. I am further of opinion that except in the case of original lessees or persons who were parties to the contract, the provisions of Section 43 of the Indian Contract Act have no application and need not be resorted to.
11. Turning now to the other question, namely, whether the suit is maintainable by reason of defect of parties, the point is as to whether all the persons who are under a joint liability are necessary parties to a suit based upon such liability Here again we start with the following propositions: If lands are let out to two or more tenants their liability to pay the rent is joint and several, except where it is made joint and not several by express agreement; the liability of assignees of the original tenant or tenants may be a joint liability inter se as amongst the assignees, or it may be a joint and several liability if there is an agreement to that effect. The liability of the persons upon whom the rights of the original tenant or tenants devolve on the death of the latter is a joint liability to the extent of the interest which devolves and not a joint and several liability in respect of that interest, as the whole body of persons who succeed in this way constitute in law but one heir.
12. Section 43 of the Indian Contract Act expressly refers to “promisor” and “promisee.” As far as the liability under a contract is concerned it appears to make all joint con(sic) joint and several. Order. I, Rule 6, C.P.C., (sic) that the plaintiff may, at his option join as parties to the same suit all or any of the persons severally, or jointly and Severally, liable on any one contract including parties to Bills of Exchange, hundis and promissory-notes. Oases of joint liability or of joint and several liability which do not come within Section 43 of the Contract Act or Order I, Rule 6 must be treated as cases for which no exception has been made in this country to the general rule which obtains in English Common Law and which is in consonance with justice, equity and good conscience. In the words of Lord Redesdale: “All persons materially interested in the subject ought generally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the Court may be enabled to do complete justice by (sic) upon and settling the rights of all (sic) interested, and that the orders of the Court may be safely executed by those who are compelled to obey them, and future litigation may be prevented.” This general rule embraces two classes of parties as defendants, that is to say, those who are indispensable and necessary parties without whom no decree at all can be rendered, and those who are proper parties whose presence makes the adjudication more complete and effectual. Under the English Law where the liability is a joint and several one the plaintiff will not be compelled to add all the persons so liable as defendants, Chalmers v. Guthrie (1923) 156 L.T. Journal p. 382, but where an action has been commenced against one or same only of several joint contractors the defendant or defendants can apply to have the other joint contractor or contractors added and the proceedings stayed until this is done, Kendall v. Hamilton (1879) 4 A.C. 504 : 48 L.J.C.P. 705 : 41 L.T. 418 : 28 W.R. 97. The effect of the latest decision seems to be that a joint debtor, though: he has not an absolute, has an ordinary and a prima facie right to have his co debtors joined; Wilson v. Balearres Brook Steamship & Co. (1893) 1 Q.B. 422 : 62 L.J.Q.B. 245 : 4 R. 286 : 68 L.T. 312 : 41 W.R. 486 : 7 Asp. N.C. 321 and Robinson v. Geisel (1894) 2 Q.B. 685 : 9 R. 555 : 71 L.T. 70 : 42 W.R. 609. There is, in my opinion, no reason why this general right should be denied in this country to a person under a joint liability where the liability arises not under a contract to which Order I, Rule 6 is confined and where the persona are neither severally nor jointly and severally but are only jointly liable.
13. In a case where the liability of the defendants arises not on contract, but on account of privity of estate, the defendant may insist on all the persons jointly liable, to be made party defendants. All such persons, in my opinion, are not merely proper, but also necessary parties. If objection is taken to the maintainability of the suit in their absence, the Court has to follow the provisions of Order I, Rule 10(2) of the C.P.C. In England it has been the essence of the procedure since the Judicature Acts to take care that a suit shall not be defeated by the non-joinder of the right parties. The same rule has been embodied in Order I, Rules 9 and 10, C.P.C. These two rules correspond to Order XVI Rule 11 of the Rules of the Supreme Court, 1883 with regard to which the following is what has been said in Chitty and Marks’ Yearly Practice of the Supreme Court, 1925: “This Rule has not altered the legal principles with regard to the parties to actions or the right of a defendant to insist on the necessary parties before the Court. It has, however, altered the procedure and substituted an application to and the parties improperly omitted or to strike out the parties improperly joined or to stay the proceeding until the necessary’ parties are added. The Court has now, however, a discretionary power to refuse the order; but in the exercise of this discretion it is guided by the same principles as were applicable to the old plea in abatement.”
14. In my judgment persons who are under a joint liability to pay the rent, are necessary parties in a suit for rent. They are so from more points of view than one. They are necessary for determining whether the liability which is prima facie, joint is also joint and several; for protecting the defendant from being made to pay what may have already been paid by others: for safe-guarding against the eventuality of his being defeated in a suit for contribution, as the co-tenant against whom a suit for contribution is brought will not be bound by the result of the earlier suit; for preventing conflicting decisions as to the character and incidents of the same tenancy being arrived at in different suits; and for various other reasons. That a lessor is bound to implead in his suit all the lessees or assignees from the lessees who are known to him is a principle recognised from the earliest times. Bayley, J., in the case of Merceron v.. Dawson (1823) 5 B. & C. 479 : 8 D. & R. 264 : 4 L.J.K.B. (O.S.) 211 : 108 E.R. 179, observed thus: “It may be conceded to the defendant that when the plaintiff is informed of the persons in whom the whole interest is vested they must be sued jointly.” This principle-has been seldom dissented from in this country, and there is no reason that I can think of why it should have been departed from. I do not suggest that a decree obtained in the absence of some of the co-tenants is necessarily a nullity; it is a valid decree and is effective only as a decree for money. But, if objection is taken at the right moment as to the maintainability of the suit, I am clearly of opinion that it should be held that the suit is not properly constituted. In Roop Narain Singh v. Juggol Singh 10 W.R. 304 it was ruled that a suit for rent from several raiyats on account of a holding which has been let out to them, cannot be brought against one of them, but must embrace all of them as defendants. The decision was passed before the Indian Contract Act was enacted. Section 43 of the Act and the provisions of the C.P.C. relating to parties to an action have abrogated this rule in some measure only. In Khetter Mohan Pal v. Prankristo Kabiraj 3 C.W.N. 371, it was assumed as well-settled that upon the death of the original tenant the landlord would be bound to sue so many at any rate of the heirs as had notified their names to him The same principle appears to have been recognised almost consistently in this Court, and the following cases will show the current of judicial opinion on the point, Ananda Kumar Naskar v. Hari Dass Haldar 27 C. 545 : 4 C.W.N. 608 : 14 Ind. Dec. (N.S.) 359, Sreemuty Jogemaya Dasi v. Girindra Nath Mukherjee 4 C.W.N. 500 at p. 592, Ramoyi Desi v. Rupai Pramanick 9 Ind. Cas. 801 : 13 C.L.J. 267 at p. 269, Abdul Rab v. Eggar 35 C.182 at p. 184 : 12 C.W.N. 160, Badi Bibi v. Hanif-ud-din Mandal 6 Ind. Cas. 570 : 12 C.L.J. 267 and Kashi Kinkar Sen v. Satyendra Nath Bhadro (3). I am aware that the rule has been departed from in recent years in some instances, but only on rare occasions and under exceptional circumstances. To depart from this rule gives rise to serious anomalies. To take the case of a permanent tenure, as an instance, it would make nugatory the provisions of Section 17 of the Bangal Tenancy Act and deprive the transferee of a share of his right to recognition which he is entitled to under the law.
15. It follows from what I have said above that in my opinion the suit as framed was not maintainable without impleading as defendants all the parties who are known to be the tenants of the holding. The plaintiff cannot take shelter under the plea of ignorance as to who the persons are their names are entered in the finally published Record of Rights. The suit, however, cannot be dismissed on that ground. The Court must proceed under Order I, Rule 10(2), C.P.C., to make an order for the addition of such of these persons as are not already on the record as defendants, and it is only in the event of the necessary amendments not being made that the suit is liable to be dismissed. On such amendment being made the suit should be tried out in accordance with law, (sic) being noted that the suit will not (sic) merely because the plaintiff may have lost his remedy against the added defendants.
16. In my judgment, therefore, the decree passed by the Courts below should be set aside, and the suit remanded to the Court of first instance to be dealt with as indicated above, and all costs hitherto incurred including the costs of this reference should abide the result.
17. In accordance with the judgment of the majority the appeal is dismissed with costs before the Divisional Bench but without any order as to costs in respect of this reference.
