The Judgment of the Court was as follows:—

This appeal arises out of a suit for recovery of cesses in respect of a mourashi mokurari tenure upon a kabuliyat.

It appears that one Kshantakali Dasi who had inherited certain properties from her son, together with the presumptive reversioners, Brojogopal and Aghorenath, granted a mourashi mokurari lease of the property to three persons, Bidhubhushan Bose, Ramlal Bose and Matilal Bose on the 13th Jeyth 1276 B.S The lessees were to pay the Government revenue on behalf of the lessors and credit a portion of the rent in repayment of the debt due to them by Kshantakali under a kistbandi, and pay the net profit, viz., Rs. 300, to Kshantakali for her life, and after her death to the reversionary heirs, Brojogopal and Aghorenath. The lessees undertook to pay the Dak peon's salary and agreed that if in future any anka (cesses) like Dak peon's salary be unloosed, the lessees would pay the same and the lessors would have no connection therewith.

Brojogopal predeceased Kshantakali and after her death the property devolved upon Aghorenath. The lessees failed to pay the cesses, and the Collector realised the same from Aghorenath (the original lamtiff) who thereupon brought the suit out of which this appeal arises to recover the cesses from the Defendants who are the heirs of the original lessees. Three of them, however, were not properly served with summons.

The defence was that the heir of Brojogopal Bose was a necessary party to the suit, that the Defendants were not liable under the lease to pay cesses to the Collector nor to the Plaintiff under the Cess Act, and that the suit was barred under Or. 2, r. 2 of the Civil Procedure Code.

The Court of first instance overruled the contentions of the Defendants and decreed the si it. On appeal that decree was set aside with respect to some of the Defendants only, viz., Pasupati, Probodh and Nanigopal. The remaining Defendants have appealed to this Court.

The first contention in the appeal is that the present suit by Aghore (and on his death by his son) alone is not maintainable in the absence of the heir of Brojogopal. It is urged that although Brojogopal predeceased Kshantakali, he had a vested interest in the property which devolved upon his heir. This contention was not raised in the lower Appellate Court. It is contended that the question arises upon the lease itself and was raised in the Court of first instance. But although Brojogopal as a presumptive reversionary heir joined in the lease, he had merely a contingent interest, his right was contingent upon his surviving Kshantakali, and as he predeceased the lady, he had no right at the time of his death which could devolve, upon his heir. Aghore Bose survived the lady and the suit therefore was properly instituted by him alone.

The next contention is that the suit cannot be maintained against some only of the heirs of the original tenants. The original lessees Bidhubhushan, Ramlal and Matilal are all dead. All the heirs of Bidhubhushan are parties, but some of the heirs of Ramlal and Matilal are not made parties or not properly served with summons, and the question is whether it is necessary to have all the heirs of the original lessees parties to a suit for rent.

So far as the original lessees are concerned their liability for rent was, in the absence of a contract to the contrary, joint and several, having regard to the provisions of sec. 43 of the Contract Act. It has been held in several cases that a landlord may bring a suit for the whole rent if the holding against some of the several joint tenants, see Jogrndra Nath Roy v. Nagendra Narain Nandi , Rameswar Singh v. Jaidev Jha , Krishnadas Roy v. Kalitara Chaudhurani and Beradar Singh v. Bacha Mahto . In all these cases the suit was against some of the original tenants who entered into the contract of tenancy. In the case of Kassi Kinkar Sen v. Satyendra Nath Bhadra , an opinion was expressed that whether a promise is joint or joint and several is a question of construction depending upon the intention of the parties to a contract, and that it is not an inflexible rule of law that in every case of a lease to two or more persons jointly there is a promise that each of them will be responsible for the entire rent, so that the landlord may recover the rent against any one of them. The observations were, however, obiter, as in that case the persons who were sued were not the original contracting parties but the heirs of the original tenants. So far as the original contracting parties are concerned, the cases cited above show that any one of them may be sued for the entire rent.

There is divergence of opinion, however, upon the question whether upon the death of the original contracting party, a suit can be maintained against some only of the heirs. In the case of Kasi Kinkar Sen v. Satyendra Nath Bhadra cited above it was held [following the principle staled in the case of Ahinsa Bibi v. Abdul Kader (6)] that the heirs really constitute one body and cannot be treated necessarily as persons who had made joint and several promises and the suit was accordingly held not to be maintainable. Kasi Kinkar's case was followed in Sheikh Sahad v. Krishna Mohan Basok . In Siba Krishna v. Jagat Chandra , it was held by Woodroffe and Smither, JJ., that a landlord cannot maintain a suit for arrears of rent against one of several heirs of a deceased tenant without joining the others as Defendants, and that sec. 43 of the Contract Act has no application to such a case. In the case of Krishnadas Roy v. Kalitara Chaudhurani , one of the Judges (one of the members of this Bench) expressed a similar view. The observation, however, was obiter, as it was not a case of heirs of the original tenant, and the other learned Judge (Richardson, J.), reserved his opinion on the point.

On the other hand, in three cases a contrary view has been taken. In Lalit Mohan Singh Roy v. Haran Chandra Khamrui , it was held that a suit against the heirs of a deceased tenant for arrears of rent which did not accrue due in the life-time of the deceased is maintainable, even though all the heirs are not made parties to the suit. The case of Kasi Kinkar Sen v. Satyendra Nath Bhadra was distinguished on the ground that the rent sued for in that case became due in the life-time of the father and some of the heirs only were sued for the arrears. The learned Judges, Fletcher and Teunon, JJ., followed the case of Chamatkarini Dasi v. Triguna Nath Sardar and referred to the observations of Jenkins, C.J, in that case, viz., that the liability of the tenants to pay the rent was contractual and that applying the provisions of sec. 43 of the Indian Contract Act any one or more of the promisors could be compelled to fulfil the promise. The case of Lalit Mohan Singh Roy v. Haran Chandra Khamrui again was followed by Fletcher and Walmsley, JJ., in Subashi Dassi v. Raj Krishna Roy .

In the case of Chamatkarini Dasi v. Triquna Nath Sardar , one Biswanath was the original tenant, and he was succeeded by his sons Narendra and Goiwi and two grandsons by two predeceased sons. The suit for rent was instituted against Narendra alone; the holding was purchased by his wife Chamatkarini and the question arose whether the sale at which she purchased was a sale for arrears of rent under Chap. XIV of the Bengal Tenancy Act, so as to pass the entire holding when all the tenants of the holding had not been joined as parties to the suit for rent. It was held that all the tenants should be made parties (except where one of a number of tenants is put forward by the rest as their representative) in order that the decree and the sale in execution of it may have the important consequences described in Chap. XIV of the Bengal Tenancy Act. That was the actual decision in the case but the learned Chief Justice (Jenkins, C.J) observed that the liability of the tenants was contractual and under sec. 43 of the Contract Act a landlord may bring a suit for the whole rent of the holding against one of several raiyats for the purposes of a mere money-decree. It is to be observed that the Defendant to the suit himself did not enter into the contract but was one of the heirs of the original tenant. This evidently was not noticed, and it was unnecessary to do so because the question was whether the decree having been obtained against one of the tenants the entire holding passed at the sale. It was immaterial therefore whether the Defendant was one of the original tenants or was one of the heirs of the original tenant.

In the case of Meajan Mandal v. Jogendra Nath De , the suit for rent was brought against some of the heirs of the sole original tenant and the learned Judges Teunon and Newbould, JJ., held that the cases of Kasi Kinkar Sen v. Satyendra Nath Bhadra , Krishnadas Roy v. Kalitara Chaudhurani , Siba Krishna Sinha v. Jagat Chandra and Sheikh Sahad v. Krishna Mohan Basak were distinguishable (though the grounds of distinction were not stated) and followed the decisions in the cases of Lalit Mohan Singh Roy v. Haran Chandra Khamrui , Subashi Dassi v. Raj Krishna Roy and Chamatkarini Dasi v. Triguna Nath Sardar . The learned Judges observed that they did so more readily as the Defendants in that case were the tenants in actual occupation of the land; and the rent for which the suit was brought accrued due not in the time of the original tenant but in the time of the Defendants, and also because a decree for rent was obtained against the Defendants for a previous period.

It appears therefore that so far as the heirs of the original tenant are concerned the view taken in the cases of Kasi Kinkar Sen v. Satyendra Nath Bhadra , Sheikh Sahad v. Krishna Mohan Basak and Siba Krishna Sinha v. Jagat Chandra Talukdar is in conflict with that taken in Lalit Mohan Singh Roy v. Haran Chandra Khamrui , Subashi Dassi v. Raj Krishna Ray and Meajan Mandal v. Jogendra Nath De .

The observations in the case of Chamatkarini Dasi v. Triguna Nath Sardar and those of one of the Judges in Krishnadas Roy v. Kalitara are obiter, because as stated above, in the first case the question for consideration was whether a sale in execution of a decree for rent obtained against some only of the tenants passed the entire holding, and in the second the suit was brought against some of the original tenants, and was not a case of a suit against some of the heirs of the tenant.

But the principle upon which the observation by Jenkins, C.J, in the case of Chamatkarini Dasi , was based, viz., that the liability of the tenants was contractual and that under sec. 43 of the Contract Act, a landlord may bring a suit for the whole rent of the holding against one of several raiyats for the purposes of a mere money decree—a principle applicable to the original contracting parties—was applied by Fletcher and Teunon, JJ., to the case of heirs of the original contracting party in Lalit Mohan Singh Roy's case , while in the case of Siba Krishna Sinha Woodroffe and Smither, JJ., held that sec. 43 was not applicable to the Case of heirs.

The authorities on the point appear to be in an unsettled state, and if it were necessary to decide the question we would have referred the matter to the Full Bench because these questions arise very frequently in rent suits. We think, however, that in the present case it is unnecessary to do so because even assuming that in the case of the heirs of the original ten ant the liability is a joint liability and not a joint and several one, in the present case all the heirs of one of the original tenants, viz., Bidhubhushan, are parties to the suit and have been properly served. So far as the original tenants are concerned the decisions are practically agreed [except the obiter dictum in Kasi Kinkar Sen v. Satyendra Nath Bhadra ] that a suit for rent can be maintained against any or some of the tenants having regard to the provisions of sec. 43 of the Contract Act. That being so, Bidhubhushan alone, as one of the original tenants, could have been sued for the entire rent, and all his heirs (assuming that the liability descended to them jointly) can be similarly sued for the entire rent. In other words, assuming that the liability of the heirs of each tenant is a joint one, a suit for the entire rent can be maintained if all the heirs of one of several tenants are made parties. For instance, if A, B and C jointly take a lease, the liability of each of them is a joint and several liability and assuming that on the death of A, the liability of all his heirs is a joint one, a suit can be maintained against his heirs provided all his heirs are joined. In the same manner as A alone could be sued for the entire rent in his life-time, similarly on the death of B and C, the liability of each of them would devolve upon all the heirs of each, but we do not see why upon the death of A, B and C, the liability should devolve upon all the heirs of A, B and C (taken together) jointly.

It may be said that although where A, B and C jointly take a lease, A alone may be sued for the entire rent having regard to the provisions of sec. 43 of the Contract Act, and it would be hard that the heirs of A alone, who were no parties to the contract, should be made liable for the entire rent. But the right of A in the tenure devolved upon his heirs together with the liability for rent, and as A alone could be sued for the entire rent, his heirs who succeed to his rights in the tenure may be sued for the entire rent.

The Defendants relied upon a judgment of the High Court in another suit for rent between the same parties relating to the same tenure where it was held that all the heirs of the deceased tenant (in singular) should be made parties and the rent suit was dismissed because this was not done. The fact, however, that there was not one but several joint contractors originally does not appear to have been brought to the notice of the learned Judges who decided that case. That judgment is therefore not binding upon the question now raised before us.

As stated above, all the heirs of Bidhubhushan, one of the original tenants, who alone could have been sued for the entire rent, in his life-time, are parties to the suit. It is not denied that they are in possession, and there is no suggestion that the arrears of rent accrued due in the lifetime of the original tenants. The Plaintiff, who is the Respondent before us, is willing to take a decree against the heirs of Bidhubhushan alone which of course will be a mere money-decree. In these circumstances we think that the suit cannot be dismissed as against them.

The next contention is that the suit is barred by the provisions of Or. 2, r. 2 of the Civil Procedure Code. It appears that a suit for rent was previously brought against the Defendants and the claim for cesses was not included in it. But under the contract, the lessees agreed to pay cesses into the Collectorate and it was because the Defendants did not pay the same to the Collector and the Collector realised the cesses from the Plaintiff that the latter became entitled to claim the same as damages against the Defendants. The claim for cesses therefore is not barred under Or. 2, r. 2 of the Civil Procedure Code.

The last contention is that the Plaintiff's name was registered only with respect to four annas and odd share, he in not therefore entitled to recover the entire amount claimed. This objection was however not raised in the Courts below, and we decline to entertain it for the first time in Second Appeal.

The result is that the decree of the Court of Appeal below will be confirmed so far as the heirs of Bidhubhushan Bose are concerned, and the suit will be dismissed as against the other Defendants. These other Defendants will, however, pay their own costs in all the Courts. As against the Defendants who are the heirs of Bidhubhushan Bose, the Plaintiff will get costs in all Courts.

S.C.C