Sinha, J.:— The facts in this case are briefly as follows: The plaintiff-appellant Mannalal Serowgie and the joint family of which he is the karta, is the owner of premises No. 8, Banstollah Gully. It is a three-storeyed structure consisting of a number of rooms. On or about 1-7-1944 two persons, one Prasadila since deceased and Chittarmal the second defendant-respondent, took a lease of the first and second floor of the said premises. The lease was for a period of three years at a rent of Rs. 230/- per month. The lease was to take effect from 14th of April, 1945 and it expired on or about 13th April, 1948. The case of the appellant is that upon the expiry of the lease, Prasadilal for self and as karta of a joint family consisting of himself, his brothers and their lineal descendants, and the said Chittormal, became joint tenants in respect of the first, second and the third floor of the said premises. The tenancy was a monthly tenancy at a rental of Rs. 325/- per month. The evidence is that the rent was paid at all material times under the name and style of Prasadilal Chittarmal Jain. They in their turn inducted a number of subtenants. It is in evidence that the respondent No. 1, Ishwariprasad Jain, a brother of Prasadilal, became a subtenant in respect of one room. Prasadilal died in May, 1953. He died unmarried and without issue. It is necessary here to say something about the family of Prasadilal. I have already stated that the appellant alleges that Prasadilal was a tenant for self and as karta of a Hindu joint family and this is denied. However, it appears that Prasadilal had three brothers, Ishwariprasad, Sitaram and Ghiranjilal, Sitaram died during his lifetime, leaving his son Nemchand. Ishwariprasad has a son named Premchand. It is in evidence that Ishwariprasad, Premchand and Nemchand are still residing in the said premises. So far as Chiranjilal is concerned, it is said that he was last known to be residing at Howrah. Anyhow, the evidence of Ishwariprasad is that the family was never joint that the brothers had separated long ago and that neither Prasadilal nor himself ever became karta of a joint family. After the death of Prasadilal the tenancy continued in the same name of Prosauilal Chittarmal Jam, in which name rent was paid to the landlord as well as rents were realised from sub-tenants. The case of the plaintiff is, that after Prasadilal died, Ishwariprasad together with Chittarmal came to him and Ishwariprasad represented that he was the senior member of the family and the premises let out to Prasadilal and Chittarmal should be let out on the same terms to himself and Chittarmal and so they became the tenants. It is stated in the plaint that rents were in arrears for 28 months from Chaitra Sudi 2nd, Samvat year 2011 corresponding to 5th April, 1954 to Asar Sudi 1st, Samvat year 2013 corresponding to 9th July, 1956, aggregating to Rs. 9100/-. In the plaint, the first defendant is Ishwariprasad Jain for self and as Karta of a joint Hindu Mitakshara family consisting of himself, his brother and their lineal descendants. The second defendant is Chittormal Jain. So far as Ishwariprasad is concerned, it is pleaded that upon the death of Prasadilal he became the karta of a joint Hindu family. Alternatively, he was at all material times the legal heir and/or de facto administrator of the estate of Prasadilal Jain since deceased. There is an alternative case made against both the defendants for demages for use and occupation. It appears that only Ishwariprasad contested the suit. At the hearing, Ray J., passed a decree against the defendant Chittarmal with cost as of an undefended suit. The suit against Ishwariprasad was however, dismissed with cost. It is against this judgment dated 14-5-1962 that this appeal has been preferred, and the only contesting respondent is Ishwariprasad Jain.

2. In the court below ten issues were framed which are set out below:—

“1. Did Prasadilal Jain become a tenant under the plaintiff as Karta of a joint family?

2. Did the defendant No. 1 Iswari Prosad Jain become Karta of the Mitakshara joint family in May, 1953 as alleged in paragraph 2 of the plaint?

3. Did the defendant No. 1 become the legal heir and/or de facto administrator of the estate of Prasadilal Jain as alleged in paragraph 2 of the plaint?

4. Is defendant No. 1 Ishwariprasad Jain liable to pay rent from April 5, 1954 to July 5, 1956 at the rate of Rs. 325/- per month as tenant as alleged in paragraphs 3 and 4 of the plaint?

5. Is the defendant liable to pay rent or mesne profits for possession of the said premises from 5th April, 1954 as alleged in paragraph 5 of the plaint?

6. Has the plaintiff any cause of action against defendant No. 1 Iswariprosad Jain?

7. Is Iswariprosad Jain in occupation of a room in the premises as sub-tenant under I defendant No. 2 as alleged in paragraph 9 of the written statement?

8. Is the suit maintainable against defendant No. 1 Iswariprosad Jain?

9. Is the suit bad for misjoinder and/or non-joinder of parties?

10. To what relief is the plaintiff entitled?”

3. Before I go into the question as to whether the issues have been properly decided, it would be convenient here to set out the exact stand made by the parties before us. It was a much simpler stand than made in the court below and makes the real issue to be tried, simpler to understand. According to Iswariprosad, there was no joint family of which either Prasadilal or himself was the Karta. According to him, he came to Calcutta when he was only 18 years old and thereafter lived and worked with his maternal uncles in their shop at 86/1, Upper Chitpur Road where they sold brass bells and gilt ornaments. After a while, Prasadilal also came and joined the business. After the death of the maternal uncles, the business was carried on under the name of Prasadilal Iswariprasad at 86 and 86/1, Upper Chitpur Road. According to him, Prasadilal and Chittarmal took the tenancy, and he himself had nothing to do with the same. They did not constitute a joint Hindu family with their brothers or with their brothers' sons. He himself, together with his son Premchand, as also Sitaram since deceased and his son Nemchand, had been residing in the said premises as sub-tenants upon payment of rent to Prasadilal Chittarmal. So far as Chiranjilal is concerned, he was living at Howrah and never lived in the said premises. It is not very clear from the evidence as to where he does reside at present or as to whether he is alive at all. The evidence is that both before the death of Prasadilal as well as after his death, Iswariprasad used to realise rents from the sub-tenants as well as used to pay rents to the landlord, the appellant. According to the appellant, Prasadilal became a tenant, as Karta of a Joint Hindu family, and this was continued after the death of Prasadilal with Iswariprasad as the Karta, representing the joint family: Chittarmal was a tenant throughout in his personal capacity. According to Iswariprasad, there was never any joint family. They were all separate. According to him, Prasadilal in his individual capacity was a joint tenant with Chittarmal of the said premises and after the death of Prasadilal, the tenancy continued in the name of Prasadilal Chittarmal Jain but it was continued by Chittarmal alone. He does not deny, and this has been proved by documentary evidence, that he realised and paid rents both before the death of Prasadilal as well as afterwards. He explains this by saying that before the death at his request and after the death of Prasadilal he did so at the request and as agent of Chittarmal, and that he himself never, either became a tenant under the appellant, nor did he interfere with the estate of Prasadilal. It is also admitted that Prasadilal died unmarried without any issue him surviving. Under the Hindu law, the brothers would be the next heirs. At the time of the death of Prasadilal, two brothers were alive namely, Iswariprasad and Chiranjilal, of whom, only Iswariprasad has been made a party leaving out Chiranjilal, whose whereabouts are not known. Mr. Bhabra appearing for the appellant has formulated his case in a very simple way. He argues that it is unnecessary to go into the question of an undivided family or whether Iswariprasad became a de facto administrator of the estate of Prasadilal. On the admitted facts, Prasadilal and Chittarmal were joint tenants in respect of a monthly tenancy in respect of the first, second and third floors of the said premises. This monthly tenancy is a heritable property and upon the death of Prasadilal his interest devolved on his heirs including Iswariprasad. It is then argued that upon this footing, the heirs of Prasadilal namely, his surviving brothers together with Chittarmal, became tenants of the said premises and each of them had a tenancy-in-common in respect of the whole premises. It is argued, that there was no necessity in law to implead Chiranjilal. Upon the evidence on record, the existence of a joint family of which Prasadilal or, Iswariprasad was a karta has not been proved. But upon the facts mentioned above, there cannot be any dispute that there was a monthly tenancy and upon the death of Prasadila his interest devolved upon his heirs and that Iswariprasad was one of his heirs. The dispute, however, commences here. Tire first point raised by Iswariprasad is, that he never entered into possession and therefore, is not liable for any part of the rent after the death of Prasadilal. The second point raised by him is, that in any event, if there was a liability of the heirs of Prasadilal, it was a joint liability of all the brothers and inasmuch as Chiranjilal has not been made a party to the suit, the action must fail. Upon both these points, the court below found in favour of the respondent No. 1. The learned Judge held that upon the death of Prasadilal, Iswariprasad did not become a tenant of the plaintiff and the plaintiff was not entitled to claim against him on the footing that he was a legal heir or administrator, in the absence of all the heirs. As a result, the suit was dismissed with cost as against the defendant No. 1.

4. In my opinion, it is unnecessary to go into all the various issues framed in the court below. The three points to be considered are as follows:—

1. Is Iswariprasad liable as heir of Prasadilal in respect of the arrears of rent in suit—

(a) if he did not enter into possession, or

(b) if he did enter into possession?

2. Is the claim against Iswariprasad bad for non-joinder of his brother Chiranjilal?

3. If the Suit is not bad for non-joinder of parties, is Iswariprasad liable for the whole of the rent, or to the extent of his share, or limited to the assets of Prasadilal in his hand?

5. In the court below, oral evidence has been adduced and Mannalal Serowgie, the appellant and Iswariprosad the respondent No. 1 have both given evidence. Several other witnesses were examined, but their evidence does not appear to be of much importance. It is unnecessary for me to go into the evidence in detail. It is not disputed that before the death of Prasadilal, Iswariprasad realised rents from sub-tenants and paid rent to the landlord on behalf of Prasadilal Chittarmal. It is also not disputed that he did so after the death of Prasadilal, but what is disputed are certain specific instances of payment and the capacity in which Iswariprasad did so after the death of Prasadilal. After considering the legal position I shall come back to the evidence on the last point, which I consider to be important. The legal position may be considered in stages. Firstly, as to the position of a brother as heir under the Hindu law in respect of a person not leaving him surviving, either wife or children, on the footing that ne was a separate person. Reference may be made to Mulla's “Hindu Law” 12th Ed. p. 102, Article 34(iii) read with Article 43 at page 126, where the learned author states that the brother of the whole blood is the preferential heir in the absence of male children, widow, female children and parents. In Mayne's “Hindu Law and Usage” 11th Ed. p. 586, para 484, the learned author says as follows:—

“The right of succession under Hindu law is a right which vests immediately on the death of the owner of the property. It cannot in any circumstances remain in abeyance in expectation of the birth of a preferable heir, not conceived at the time of the owner's death.”

6. Now I come to the nature of a monthly tenancy according to the Indian law. The first case to be cited is a decision of Nasim Ali J., Anwarali Bepari v. Jamini Lal Roy Choudhury, 43 Cal WN 797: (AIR 1940 Cal 89). The learned Judge described the incidences of a monthly tenancy as follows:—

“A tenancy at will is determined by the death of either the tenant or the landlord see James v. Dean, (1805) 11 Ves 383 at p. 391. Such a tenancy is not a lease as defined in the Transfer of Property Act. A tenancy from year to year or from month to month can be terminated only by a notice to quit, (see sections 106 and 11(h) of the Transfer of Property Act). It is nowhere stated in the Act itself that it is determined by the death of either party. It is not, therefore, a tenancy at will. It continues until it is terminated by a notice to quit. In other words, the landlord has no right to reenter until the tenancy has been terminated. A lease from year to year or from month to month is, therefore, not extinguished by the death of the lessee and must devolve on his heirs like any other interest in immovable property. Under the English law “upon the death of a person all his lease-hold interests (including tenancies from year to year) vests in his personal representative”. (Foa's Landlord and Tenant p. 495, 6th Edn.). In India, tenancies from year to year or from month to month are lease-hold interests. Section 106 of the Transfer of Property Act places leases from year to year and from month to month on the same footing. These tenancies under the Transfer of Property Act are transferable and I see no reason why they should not be heritable.”

7. In Gour Mohan Roy v. Sailendra Nath Saha Chowdhury, 53 Cal WN 863 at p. 865(AIR 1950 Cal 152 at p. 153) Mukharji J., said as follows:—

“Monthly tenancy is a periodical tenancy which does not come to an end by efflux of time at all for the obvious reason that no time is fixed or limited by the tenancy itself. In my judgment it commences with a month and without any further step on the part of the lessor or the lessee continues until either party terminates it by giving the requisite notice to quit under Section 106 of the Transfer of Property Act. It is not a new tenancy every month but a part and parcel of the original tenancy. If any authority is required for the views which I express on the nature of monthly tenancy I need only refer to the decision Usharani Debi, v. The Research Industries Ltd.*, (1946) 50 Cal WN 461 and to Utility Articles Manufacturing Co. v. Raja Bahadur Motilal Bombay Mills Ltd., I.L.R (1943) Bom. 553: (AIR 1943 Bom 306)……………..

8. This aspect of the matter has been lucidly explained by Beaumont C.J in the Bombay case mentioned above, as follows:—

“The nature of a periodical tenancy, whether yearly or monthly or weekly has been explained in many cases, and I may refer to the judgment of Salter J., in Queen's Club Gardens Estate, Ltd. v. Bignell, (1924) 1 KB 117 as containing a very clear exposition of law based on old cases. He points out that a characteristic of a periodical tenancy is that as each period commences, it is not a new tenancy; it is really an accretion to the old tenancy. A monthly tenancy, that is a tenancy subject to a month's notice, creates in the first instance a tenancy for two months certain. But as soon as the third month commences, that is not a new tenancy; it turns the original tenancy into a three months' tenancy, and when the fourth month begins, the tenancy becomes the four months' tenancy and so on so long as the tenancy continues, until, that is to say, notice to quit is given.”

9. We, therefore, find that a monthly tenancy is a heritable asset. A monthly tenancy, that is to say, a tenancy from month to month, is of indefinite duration until it is brought to an end by notice to quit. There is, of course, no question of a notice to quit having been served, so far as this case is concerned. I have also pointed out above, how under the Hindu Lawi Ishwariprasad became one of the heirs of Prasadilal, since the deceased had no widow or children, or parents alive at the time of his death. The next question is whether an heir of a lessee would incur liability, only if he entered into possession. A lease is a transfer of an estate of inheritance, it does not terminate with the death of the original lessee, but survives during the remainder of the term to his heirs and representatives. Maharaja Tej Chand v. Sreekanth Ghosh, (1844) 3 Moo Ind App 261 (PC), Denoollah v. Amanutoolah, (1871) 16 WK 147. Both under the English law and the Indian law, an assignee of a lease is liable by privity of estate whether he enters into possession or not (see Kunhanujan v. Anjelu, (1889) ILR 17 Mad 296, Monica v. Subraya Hebbara, (1807) ILR 30 Mad 410 and Ram Kinkar Banerjee v. Satya Charan Srimani, 66 Ind App 50 at p. 58 : (AIR 1939 PC 14 at p. 16). Since it is an estate of inheritance, upon the death of the lessee the estate devolves on the heir and vests in him by operation of law. In case where the estate vests by operation of law, it may be said that privity of estate is created in the same way as in the case of an assignee. For example, in bankruptcy an estate vests in the assignee in bankruptcy. In the case of bankruptcy, however, there is a special provision by which an onerous estate may be disclaimed. There is no such provision in the case of an ordinary heir (See Titterton v. Cooper, (1882) 9 QBD 473). Or course, an heir of a lessee may terminate the lease by giving a notice to quit. The position seems to be as follows: Under the Hindu law, Ishwariprasad became an heir with regard to the lease-hold property namely, the monthly tenancy. Upon the death of Prasadilal, his estate vested in his heirs including ishwariprasad. I do not see why liability as a lessee should await the taking of possession. Mr. Sen, however, appearing on behalf of the respondent has cited a Nagpur decision which I shall now proceed to consider. In Rajib Husain v. Nawab Yanuskhan, AIR 1937 Nag 321 Vivian Bose J., was considering the case of a tenancy, which in the absence of any evidence as to the terms thereof, was held to be a tenancy from month to month under Section 106 of the Transfer of Property Act. The learned Judge said as follows:

“There is no doubt from the definition of lease given in S. 105 that a lease is a transfer of an interest in land, and there is equally no doubt that the right to land or of an interest in it is ordinarily heritable. Even the learned counsel for the appellant conceded that a lease for a definite term would be heritable and that the heir of a deceased lessee would succeed to the remainder of the term……………Now, even if a lease from month to month is nothing but a lease for a succession of definite terms each of a month's duration, still if the lessee were to the before its termination, it would follow that his heir must, on this admission, succeed at least to the unexpired portion of the month in which the death occurs. Therefore, he would become a lessee for that period, however short it might be. After that, even if it be assumed that the original lease expires at the end of the month, the heir would be a lessee holding over within the meaning of S. 116 and not a trespasser, and would thus, in his turn, be deemed to be a lessee from month to month on the old conditions.

Under the English law, every kind of lease except a tenancy-at-will devolves upon the heir. It is true the heir is not bound to enter, but if he does, he is bound by the lease. We find this in 14 Halsbury 306 and in 20 Halsbury 374, where the devolution of a lease from year to year is dealt with. The principle applicable to a lease from month to month would obviously be the same. Williams on Real Property, Edn. 24, pp. 602 and 625-626, says the same thing. Coming back to the Indian law, Section 108-A(c) of the Transfer of Property Act, also indicates that a lease is heritable, for it states that the benefit of a contract of lease shall be annexed to and go with the lessee's interest as such and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

This is nothing but a statement of the ordinary law of devolution. Sir Dinshaw Mulla states at p. 567, second edition of Transfer of Property Act, that leasehold interests are estates of inheritance and explains that the Transfer of Property Act does not say so in express terms because the Act does not deal with the subject of succession. This is also the view in Kishori Lal Roy v. Krishna Kamini, (1910) ILR 37 Cal 377. Their Lordships of the Privy Council decided in (1844) 3 Moo Ind App 261 (PC) and in Gobind Lal Roy v. Hemendra Narain, (1890) ILR 17 Cal 686 (P.C) that a lease for a term of years is heritable.”

10. So far as the heritable nature of a monthly tenancy is concerned, the learned Judge has correctly stated the position except that, there was no necessity to invoke section 116 of the Transfer of Property Act. Once it is conceded that the lease continues in the hands of the heir and is not terminated until service of a notice to quit, there is no termination of the tenancy by mere death and the continuance of the tenancy is not based on the principle of holding over. The statement by the learned Judge, however, to the effect that under the English law, every kind of lease except a tenancy-at-will devolves upon the heir, but he is not bound to enter and his liability accrues only if he enters into possession, does not state the correct principle. The learned Judge refers to 14 Halsbury 306 and 20 Halsbury p. 374, neither of which supports the proposition that an ordinary heir must enter into possession in order to become liable. What they enumerate is a special provision of the English law which allows some latitude to a “personal representative”, of a deceased lessee which means an executor or administrator. Such a representative is not made personally liable unless he enters into the lease, although he is liable to the extent of the assets of the deceased in his hands. In 14 Halsbury p. 306 Article 561 it is stated that the vesting of a term of years in the deceased's personal representative is a conclusion of law, the executor who accepts the office cannot waive the terms. The interest of a yearly tenant is transmissible to his personal representative, and notice to quit must be given to him. What the learned Judge must have had in mind is Article 453 in 20 Halsbury p. 374 where it is stated as follows:

“The personal representative takes the leasehold property as assignee, but he does not become personally liable for rent or on the covenants in the lease unless he has entered.”

11. The same principle is laid down in Williams on Executors and Administrators, 14th Edn p. 1032 as follows:—

“Similarly, if rent accrues after the death of the lessee, and the executor has not entered upon the demised premises, he cannot be made personally responsible for such rent. He is, however, liable as executor, for he cannot waive the term so as not to be liable for the rent as far as he has assets. Howse v. Webster, (1607) Yelv. 103; Helier v. Casebert, (1665) 1 Lev. 127.”

in any event, there is nothing to show that the Indian Law has extended this exemption of the personal liability of the executor or administrator, to an ordinary heir.

12. So far as an ordinary heir is concerned, the estate vests in him upon the death of the lessee, and there is no necessity for the heir entering into possession, in order to make him liable. The estate devolves by operation of law and the liability arises upon the privity of estate which vests in the heir. This principle has been wel expounded by a division bench Judgment of the Patna High Court, presided over by Fazal Ali J. Jyoti Prosad Singh Deo v. Samual Henry Seddon, AIR 1940 Pat 516. In that case, it was argued that the doctrine of privity of estate does not apply to India and in any event, for the doctrine to apply, there must be actual possession. Both these contentions were overruled. It was held that the doctrine applied to India, as has been held by the Judicial Committee in 66 Ind App 50: (AIR 1939 PC 14) and that actual possession was not necessary. All that was required is that “Possessory title” must have passed; whether possession has been taken was immaterial. When a Hindu testator dies intestate, his estate immediately vests in the heir. If there are personal representatives, then the estate may vest in them as such under section 211 of the Succession Act. This, however, is merely to administer the estate, (see Ramanuja v. Swami Pillai, (1912) 22 Mad L.J 228, Jehangir v. Kukibai, (1903) ILR 27 Bom 281 and Antony Cruz Gonzalves v. Makis, (1911) ILR 34 Mad 395). The principle is well illustrated by a Division Bench judgment of this Court—Mussamat Kulwanta Bewa v. Karamchand Soni, 68 Cal LJ 8: (AIR 1938 Cal 714). In that case, one Perganram was the owner of a valuable property in Darjeeling known as Master's Hall. He died leaving him surviving his widow Mussamat Kulwanta Bewa and his two sons Ramchatti and Ramdas. He died intestate and the widow took out letters of administration. A mortgage was effected of the property jointly by the widow and the two sons. The mortgage by the widow as administratrix was defective as no leave of court was taken. The question was whether the two sons could mortgage their interests. Biswas, J., said as follows:—

“We have not been referred to any authority to show that merely because an estate is in the hands of an administrator the beneficiaries are thereby rendered incompetent to deal with their interest in the estate. Section 211 of the Indian Succession Act, 1925, merely provides that the estate of a deceased person vests in his executor or administrator as such: these words “as such” are important, and show that the vesting is not of the beneficial interest in the property, but only for purposes of representation. The present case is one of intestate succession, and is not complicated by any question of the assent of the executor or administrator being necessary to complete the legatee's title (section 332). In such a case, it does not in our opinion admit of any doubt that the beneficial interest vests in the heir-at-law, and we are unable to find anything in the Indian Succession Act which limits the power of disposal of heir-at-law over such estate, merely because a grant of administration has been made. Nor does the Transfer of Property Act make the interest of the heir-at-law in the estate property which may not be transferred”.

13. The next case to be considered is an English decision cited by Mr. Sen. Stratford-Unon-Avon Corporation v. Parker, (1914) 2 KB 562. The facts in that case are as follows: The mother of the defendant held a leasehold property, containing a covenant to repair. In his mother's lifetime, the defendant collected the rents of the demised premises on her behalf. She died intestate and he, after her death, continued to collect the rents, and after paying the ground rent to the plaintiffs, he paid the balance to his sister until her death. Thereafter, he continued for some time to collect the rents, retaining the surplus for such person or persons as would be entitled to in that behalf. The lessors tried to enforce the covenant in the lease against the mother. The defendant's solicitor informed the owners that the mother was dead and that the defendant had no liability and that the owners might take over possession, which they did. Thereafter, the owners sued the defendant as executor de son tort, and assignee of his mother, claiming damages for breach of the covenant in the lease. It was held that the defendant had never taken possession on his own behalf. At best, he could be said to be an executor de son tort and as such there was no privity of estate to make him liable on the covenant. Lush J., said as follows:—

“If the testator dies possessed of a term of years, the term vests in the executor by operation of law, but he cannot be sued personally on the covenants contained therein; if he enters and takes possession and enjoys the beneficial occupation of the term, the entry, coupled with the legal title as executor, places him in the position of an actual assignee of the term and renders him liable on the covenants by privity of estate just as fully as if the term had been assigned to him inter vivos by the original lessee. But an executor de son tort has no title to the term………………… and therefore never had that privity of estate which would impose upon him the same liabilities in respect of the covenants as if he had actually entered into them”.

14. The first thing to be observed is that the defendant was never said to be the heir of his mother. The case went on, on the footing that he acted as her agent and after her death, he might have become an executor de son tort. It was also found as a fact that he never took possession on his own behalf. As the case was one which turned on the liabilities of an executor de son tort, it does not help us in this case, because we are proceeding on the footing that Ishwariprasad was an heir of Prasadilal and as such the estate vested in him upon his death.

15. The next point to be considered is as to whether on the evidence it can be said that Ishwariprasad did not enter into possession after the death of Prasadilal. He said in his evidence that during the lifetime of Prasadilal be realised rents and paid rents, as his agent. But even after the death of Prasadilal it is found that he was continuing to do so. This he tried to explain by saying that although the rents were realised or paid by him in the name of Prasadilal Chittarmal Jain, he was doing it at the request of Chittarmal and paid all the moneys over to him. It is surprising that this case namely, that after the death of Prasadilal realisations were made on behalf of Chittarmal and made over to him, was never put to any of the plaintiff's witnesses. It was Ishwariprasad who for the first time said this in his evidence. We, therefore, find that after the death of Prasadilal the rents were being collected and paid in the name of Prasadilal Chittarmal by Ishwariprasad and apart from his verbal evidence not a scrap of paper has been shown to prove the statement that he collected moneys on behalf of any one else or that the moneys were made over to Chittarmal. Chittarmal has himself not contested the case and not called to the witness box. The following two questions and answers are significant:—

“127 Q.—What were the total collections from sub-tenants in this house which were realised by Prasadilal Chittarmal?

A.—About Rs. 360 to Rs. 365.

128 Q.—Do you know, what was the tax that they had to pay?

A.—It was agreed that we would pay occupier's share of taxes at the rate of Rs. 45/-”.

16. It will be observed that he used the word “we” when speaking about the agreement to pay the occupier's share of taxes. In my opinion, the defendant No. 1 has failed to establish the fact that after the death of Prasadilal he was merely acting as the agent of Chittarmal. He was one of the heirs and was actually realising rents and paying rents. I do not see what further evidence would be required of entering into possession. In fact, what had happened was that after the death of Prasadilal rent was paid for some time to the landlord but thereafter Iswariprasad and Chittarmal continued to reside in the premises without payment of rent, and were collecting rents from the sub-tenants and appropriating the same to themselves. After the filing of the suit, the plaintiff got himself appointed as a receiver and only then was he able to intercept some of the rent. In my opinion, the defendant No. 1 did enter into possession and is clearly liable upon the lease, but alternatively, even if he did not enter into possession, as the heir of Prasadilal is still liable as such heir owing to privity of estate which vested in him.

17. The next question is as to whether the suit should be dismissed because Chiranjilal has not been made a party. The learned Judge has held that it should be so dismissed, but in my opinion, he is in error. Upon this point, there are conflicting authorities in this Court, which were ultimately the subject matter of a Full Bench decision. As an instance of the earlier decisions, I might mention a Bench decision of this Court—Lalit Mohan Sinha v. Haran Chand, AIR 1916 Cal 458. Fletcher J., held that a suit against the heirs of a deceased tenant for arrears of rent, which did not accrue due during the lifetime of the deceased, is maintainable, even though all the heirs are not made parties to the suit. The decision in Kashi Kinkar Sen v. Satyendra Nath Bhadra, (1910) 7 Ind Cas 840 (Cal) was distinguished on the ground, that in that case the rent sued for became due in the lifetime of the father, and only some of his heirs were sued for the arrears. In Haran Charan Mandal v. Hiralal Naskar, 72 Cal LJ 123: (AIR 1941 Cal 88) it was pointed out that in the case of a suit for arrears of rent under the B.T Act, the landlord should join as defendants in his suit all the persons whose names are borne in the rent roll as tenants. This, however, turned on the special provisions of the B.T Act.

18. It would be convenient now to come back to the Full Bench decision, Kailash Chandra Mitra v. Brajendra K. Chakravarti, AIR 1925 Cal 1056. The facts in that case were shortly as follows: “The plaintiff was entitled to 4 as share of a Taluq under which there was a tenure which formerly belonged to one Gour Sundar Singh and which by successive devolutions and assignments had come into the possession of about 20 persons. The plaintiff had sued for his share of the rent of the tenure for a certain period, five persons some of whom had acquired their interest by succession and others under assignments from some of the heirs of Gour Sundar Singh. All these persons were in possession during the period in suit along with others who were not made parties. The plea taken in defence was, non-joinder, of parties. As there were two lines of cases in this Court taking contrary views, the matter was referred to a Full Bench on 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.”

B.B Ghose, J.:— said as follows:—

“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. It the landlord omits to implead any one 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.

19. 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,….. 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, any one of such tenants may be sued for the entire rent due to the landlord…… It is hardly necessary to add that a decree in such a suit will not have the effect of a decree for rent under Chap. XIV of the Bengal Tenancy Act.”

Mukherji, J.:— agreed with this majority judgment on the point of liability. He said as follows:—

“Each one of the persons on 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….. 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 maintainability of the suit on that ground.”

20. The learned Judge, however, held that although this was the legal liability, it was the invariable practice that if the plaintiff had been informed of all the persons in whom the whole interest had vested, they should all be made parties. This, however was the minority opinion. With respect, I am unable to see how after the legal liability has been declared, a mere practice can affect the question.

21. It is argued by the respondent No. 1 that the majority decision shows that the tenant must be in possession in order to be liable for the rent. This is not the correct reading of the judgment. B.B Ghose J. has pointed out that the matter may be looked at from two points of view. The first is, where the heirs were in possession and the second is where they succeed to the estate and there is a privity of estate between the lessor and the heirs of the lessee, irrespective of actual possession. In both cases, they are liable.

22. Before concluding this point of nonjoinder, I must state that Mr. Bhabra appearing on behalf of the appellant has rightly pointed out that in the Written Statement it has merely been stated that the suit was bad for “non-joinder and mis-joinder of parties”, without giving any particulars as to who was not joined. It is now firmly established that where a defendant objects to the maintainability of a suit on the ground of non-joinder of necessary parties, he should specifically state as to who are the persons who ought to have been impleaded but are not so impleaded. (See Fazl Ali J., in Narain Pandey v. Surajbhan Lal, AIR 1937 Pat 414). In any event, under O. 1 R. 9 of the CPC, no suit shall be defeated by reason of non-joinder of parties. If necessary, the Court should grant an opportunity to the party to join a party in whose presence the suit should have been decided. I would answer the three points formulated above in the following way:

1. Iswariprasad is liable as heir of Prasadilal in respect of the arrears of rent in suit, whether he had entered into possession or he had not entered into possession. In fact, however, he did enter into possession.

2. The suit is not bad for non-joinder of parties. Iswariprasad is liable for the whole of the rent, but upon payment will be entitled to claim contribution from his co-debtors.

3. Since the liability of Iswariprasad is for the entire rent, and the rent accrued, not in the lifetime of Prasadilal but after his death when Iswariprasad had already entered into possession, he would be liable for the entire rent but would be entitled to sue for contribution as aforesaid.

23. The result is that this appeal succeeds and the judgment and order of the court below dated 14th May, 1962, must be set aside, so far as Iswariprasad Jain, the first respondent is concerned. There will be a decree against the defendant No. 1 for the sum of Rs. 9100/- with interest on judgment at 6 per cent and costs, both in the Court below and of the appeal. The amount deposited by the Appellant should be refunded. The appointment of the Receiver is extended for one month from date and he is to file at once an upto date account.

24. Let the decree be drawn up expeditiously. Certified for two Counsel.

Masud, J.:— I agree.

DG/VSB/D.V.C

25. Appeal allowed.