JUDGMENT
Narayan, J.
1. This is a second appeal by the plaintiff arising out of a suit for recovery of arrears of rent with regard to a tenure. The plaintiff had claimed the rent as purchaser of the interest of two persona named Hira Lal Pathak and Ram Kishore Pathak by two sale-deeds, and the case made out by him was that the tenure carried a yearly jama of Rs. 323 besides cess, out of which he was entitled to realise 1/3rd share.
2. The defendants pleaded that Hira Lal Pathak and Ram Kishore Pathak had reduced the jama to Rs. 200 in the year 1346 and that for the years 1347, 1348 and 1349 rent had been realised by them at this reduced rate; and, consequently, it was contended by the defendants that the plaintiff as the purchaser of the interest of Hira Lal Pathak and Ram Kishore Pathak was not entitled to claim a higher jama.
3. The Courts below upheld the contention of the defendants and passed a decree at the reduced jama of Rs. 200 besides cess.
4. Mr. Mazumdar, on behalf of the plaintiff-appellant, has contended before us that the Courts below have committed an error of law in passing a decree in favour of the plaintiff at the seduced jama of Rs. 200, though, admittedly, the defendants have been paying rent to the cosharers of the plaintiff at the original jama of Rs. 323.
5. The point raised is a somewhat difficult one, and though I am not able to accept the line of reasoning adopted by Mr. Mazumdar, on a consideration of the legal principles, which can be made applicable to such a case, and on the strength of certain authorities, which I have been able to find out, I think a decree should be, in this suit, at the original jama of Rs. 328.
6. Mr. Mazumdar was at pains to show that the rent could not be reduced without a document, and that the receipt, which had been put forward by the defendants as evidence of the variation of the rent being an unregistered document, is inadmissible. But a lease in respect of agricultural lands comes under the operation of Section 117, T. P. Act, and for such a lease a registered instrument cannot be necessary under the law. A verbal settlement is sufficient, and if the defendants are able to show in this case that the rent was altered by a verbal declaration, that will be sufficient. It appears from the khewat that even at the inception of this tenancy the jama had been verbally settled, and evidence has been adduced by the defendant indicating that the jama was reduced even before the receipt, EX. a, in which the causes of reduction are mentioned, was granted. The evidence of Baghunandau Pandey D. W. 1 has been placed before us, and this witness appears to have stated that in Jeth 1346 the rent was reduced to Rs. 200 and that he made payment of rent in Asarh 1346 and obtained receipt according to the reduced jama. The receipt, Ex. A, is dated 8th June 1939, which corresponds to 5th Aaarh 1346, and, as the evidence of D. W. 1 shows, the redaction had been made by the landlord in the preceding Jeth. Section 92, Evidence Act has, therefore, no application in this case, and a discussion with regard to the applicability of this section was, in my opinion, beside the point.
7. The other contention of Mr. Mazumdar was that Section 188, Bihar Tenancy Act was a bar to the alteration of rent by one or some of the joint landlords. But what Section 188, Bihar Tenancy Act, says is that where two or more persons are joint landlords, anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together, or by an agent authorised to act on behalf of both or all of them. It is important to note that the section refers only to an act which the landlord is required or authorised to do under this Act. The distinction has been pointed out by their Lordships of the Judicial Committee in Jatindra Nath v. Prasanna Kumar, 38 Cal. 270 : (8 I. C. 842), in which case their Lordships held that even the bringing of a suit for arrears of rent was not a thing which the landlord was either required or authorised to do under the Bengal Tenancy Act, and that the rent in arrears being a debt the right to recover it arose under the general law. Applying this principle, it is obvious that if some of the landlords agreed to receive rent from these defendants at a reduced jama, that cannot be regarded as an act which the landlord was required or authorised to do under the Bihar Tenancy Act, and, consequently, Section 188 was no bar to the plaintiff’s predecessors reducing the rent in respect of their share, or condescending to receive rent for their share at a reduced jama.
8. The contentions urged by Mr. Mazumdar, therefore, appear to me to be without any substance, but still the question remains how far this present plaintiff is bound by the reduction made by his predecessors. It is necessary to point out that when Hira Lal Pathak and Ram Kishore Pathak sold their proprietary interest to the plaintiff they gave him to understand that the tenure still carried the jama, which had been recorded in the record-of-rights, and this fact has to be considered along with another, important fact, which is this that neither the contents of the receipts nor the allegations of the defendants go to indicate that the defendants have made out any case for a permanent reduction of rent. There had been no deterioration in the quality of the soil nor bad any portion of the tenure diluviated or gone out of the tenants’ hands. The reasons for redaction as mentioned in the receipt, EX. A, are that the produce had gone down on account of want of irrigation facilities, and that the rent of the tenure was high. While these are the grounds mentioned in the receipt, the statement of D. W. 1 in his deposition was that there were no irrigation facilities and that the crops were being damaged by insects. On none of these grounds could the tenant seek a permanent reduction of rent, and it appears to me that because no permanent reduction had been made, when the proprietary interest was transferred, the plaintiff’s predecessors did not consider it necessary to inform the plaintiff that any reduction had been made. For the reasons mentioned in the receipt or for the reasons mentioned by D. W. 1 in his deposition, the two being not quite consistent the plaintiff’s predecessors might have realised their share of rent from the defendants at a reduced jama, but that was nothing but a temporary remission of rent, it being quite open to a cosharer to remit a portion of the rent for some years. I am, therefore, of the opinion that the materials available do not lead us to hold that the plaintiff’s predecessors had reduced the jama for their share permanently.
9. Even assuming, however, that they had reduced the jama permanently, and fraudulently concealed the fact of reduction of rent when they sold their interest to the plaintiff, I have no hesitation in holding that the plaintiff is not bound by that reduction. Admittedly, the other cosharers have not reduced the jama, and D. W. 1 has admitted that he is still paying rent to them according to the original jama. If, therefore, it is held that so far as the plaintiff’s cosharers are concerned, the original jama is still payable to them, and so far as the plaintiff is concerned he can realise his share of rent only at the reduced jama, the tenure would be deemed to be a tenure carrying two rentals–a situation, which appears to me to be inconceivable in law. This is the view which has been taken in some of the authorities which we have been able to find out, and I can respectfully point out that the other view, namely, that the different co-sharers can realise rent at different jamas is wholly unwarranted by law. The Full Bench decision of the Calcutta High Court in Guni Mahomed v. Moran, 4 Cal. 96: (2 C. L. R. 371 F.B.), which is a case decided by five Judges of the Calcutta High Court, appears to me to be an authority which is directly in point. Their Lordships have laid down in this case that though under an arrangement some of the co-sharers can realise their proportionate share of the rent separately and can bring separate suits for the same, such an arrangement will not enable one co-sharer to sue the tenant for a kabuliat, because a co-sharer who obtains a kabuliat is bound at the request of the tenant to give him patta upon the same terms, and the grant and acceptance of a binding lease of any separate share cannot exist contemporaneously with the original lease of the entire tenure. While discussing the question, Garth C. J., pointed out that a kabuliat by which an entirely new and separate tenancy is created is obviously inconsistent with it, and that if a suit for kabuliat can be maintained, it would bind the tenant for ever. The question as to whether the landlord, or the tenant would be prejudicially affected by it is not material, it being enough for our present purpose that such an arrangement would be binding on both parties and would lead to the creation of a tenancy which would be inconsistent with the original tenancy.
10. Their Lordships in this case referred, with approval, to the view of Norman Acting G. J., and Dwarka Nath Mitter J., as expressed in the Full Bench case of Indur Chunder v. Binddbun Beharee, 15 W. R. 21 : (8 Beng. L. R. 257 F. B.). His Lordship, Norman C. J., had observed as follows :
“A tenure is an entire thing. The obligation to pay the rent reserved upon the letting of land or in respect. of the tenure of land by a ryot is either a contract or an obligation in the nature of a contract to pay the rent. The obligation is single and entire. …. A ryot’s undertaking is to pay his rent simply, not to pay to the several proprietors according to their shares …… I think it clear that, as a general rule, the holder of a tenure cannot be sued by owners of fractional shares in the superior tenure for separate kubooliats according to the proportions to which they allege themselves to be entitled in the superior tenure.”
Dwarka Nath Mitter J. had observed as follows:
“I wish to state, however, that, as a matter of principle, the share-holders of an undivided estate have no right to divide a holding or tenure without the consent of the tenant. The payment to each share-holder of his quota of the rent is of itself no evidence of such concent; although, when coupled with other facts and circumstances, it may justify a Court of justice in coming to the conclusion that the tenant actually consented to the division of his tenure into a corresponding number of distinct holdings.”
When the obligation is decreed to be single and entire in spite of the arrangement by which the co-sharers realise their respective share of rent separately and when the tenure is deemed to be an entire thing in itself, it cannot be urged that under the law, there is no bar to a particular tenure carrying two rentals.
11. In Gopal Chunder Das v. Umesh Narain, 17 Cal. 695, the Full Bench case was referred to and their Lordships pointed out that as held by the Full Bench an arrangement of the nature indicated above does not give rise to a separate tenancy and that the original tenancy under all the landlords still continues. In Baidya Nath v. Ilim, 25 Cal. 917: (a C. W. N. 44), the decision in Gopal Chunder Das v. Umesh Narain, 17 Cal. 695, was referred to with approval, and in this case also the principle that the holding or a tenure is to be deemed to be an entire one was reiterated. I thick these authorities are conclusive so far as the point raised is concerned, and there is no justification for the view that a tenure can carry two rentals for ever. It was argued that as the plaintiff has stepped into the shoes of Hira Lal Pathak and Ram Kishore Pathak he is bound by their actions and that he cannot go beyond the agreement by which the rent was reduced. But the simple answer to this contention is that if the plaintiff’s predecessors had entered into such an agreement, that agreement cannot be regarded as a covenant running with the land. It was purely a personal contract between the Pathaka and the tenant, and I have already said that the conduct of the Pathaks clearly shows that they also treated the arrangement, which they had made, as a temporary arrangement, and the agreement into which they had entered as their personal agreement. My conclusion, therefore, in disagreement with the Courts below is that the plaintiff is entitled to a decree at the jama claimed.
12. The appeal is allowed, and the suit is decreed in full with coats throughout.
Reuben J.
13. I agree. First of all, there is no evidence on the record to support the conclusion that there was a permanent reduction of the rent. All that happened was that Hira Lal Pathak and Ram Kishore Pathak bound themselves personally to realise rent only at the rental rate of Rs. 200 ; the agreement was not intended to bind the tenancy, and does not bind the person to whom the landlord’s right in the tenancy has been transferred.
14. Secondly, it seems to me that this is a case of an entire tenancy in which, though the co-sharer landlords by private agreement between the parties have been realising their shares of the rest separately, they are not entitled each separately to alter the rent.
15. In Doorga Prosad v. Joynarain, 4 Cal. 96, a Full Bench of five Judges dealt with tenancies of this kind. Certain co sharer land, lords had sued for (1) a kabuliat for their share and (2) recovery of rent in respect of their share at an enhanced rate. The Full Bench rejected both these claims. It held that the arrangement for separate realisation by each co-sharer landlord of his share of the rent did not break up the entirety of the tenancy, and referred with approval to the observations of Norman, Acting C. J., and Dwarka Nath Mitter J., in Indur Chunder Doogur v. Bindabun Beharee, 15 W. R. 21 : (8 Beng. L. R. 257 F. B.), to which my learned brother has already referred. Having observed that a kabuliat in favour of one co-sharer would be inconsistent with the continued existence of the original tenancy, the Full Bench remarked that the right of one co-sharer to enhance the rent of his share separately is governed by the same principles. Romanath Ruckhit v. Chand Huree Bhoova, 14 W. R. 432: (6 Beng. I.R. 356), is only apparently inconsistent with these observations, it not being clear whether the tenure with which their Lordships were concerned had ever been held at an entire rent vide : Doorga Prosad Mytse v. Joynarain Hazra, 4 Cal. 96 at p. 102. The principle was reaffirmed in Gopal Chunder Das v. Umesh Narain Choudhry, 17 Cal. 695, where their Lordships rejected a claim by a co-sharer landlord for enhancement of rent, observing
“The right of some of several co-sharers to collect separately their share of the entire rent of an undivided holding is quite distinct. It rests on an arrangement between the co-sharers and the tenants as to the mode in which the entire rent shall be collected, but which preserves intact the original tenancy both as regards the area of the holding and the rent paid.”