Courtney Terrell, C.J:— This appeal depends for its decision upon the construction of sections 148A and 158B(2) of the Bengal Tenancy Act.
The facts are as follows:—The plaintiff-appellant sued for enforcement of a mortgage of an occupancy holding executed in his favour by the father of defendant no. 1. He impleaded the mortgagors and subsequent purchasers. One of the latter, defendant no. 7, defended on the ground that he had purchased in execution of a decree for rent obtained by two of the seven co-sharer landlords and that he had duly annulled the incumbrances under section 167 of the Bengal Tenancy Act so that the right of the mortgagee-plaintiff was extinguished.
The material facts as to the suit for rent are as follows:—The two co-sharer landlords who had sued representing a 7-annas interest recited in their plaint that they had been unable to discover the amounts, if any, due to the other maliks and impleaded the other maliks as defendants. Two of them were in the course of the suit joined as plaintiffs, the other three remaining defendants. Eventually a decree was passed for the rent claimed by the two maliks who instituted the suit, the proportional shares of the other maliks being merely noted in the margin of the decree. In the heading of the decree the names of all the co-sharers are set forth as plaintiffs and the claim, is stated as follows:—
“Claim for recovery of Rs. 82-12-0 on account of principal amount of rent with cess and damages from 1325 F. to 8 annas kist of 1328 F. at the yearly rent of Rs. 42-2-6 with cess in respect of 11 bighas 1 cottah 6 dhurs of Jand situate in inauza Batharni.”
The operative part of the decree was as follows:—
“It is ordered and decreed that this suit be decreed inter partes with costs and future interest at Rs. 6 per cent, per annum in favour of the plaintiff (sic).
Account.
Rs.
a.
p.
Rs.
a.
p.
Share of Sukdev Singh and Jangi Singh.
25
14
0
Share of the plaintiff
92
12
3
Costs … …
31
1
0
Mahabir Singh …
51
13
3
Sugo Singh and Ramsadagar Singh.
25
14
6
123
13
0
and that the sum of Rs. 92-12-0 decretal amount and Rs. 31-3-0 costs on account of the costs of this suit, with interest thereon at the rate of Rs. 6 per cent. per annum from this date to date of realization be paid by the defendant to the plaintiffs (sic).”
In this mortgage suit by the plaintiff-appellant the Subordinate Judge has held that the rent suit did not comply with the terms of section 148A of the Bengal Tenancy Act and that the decree was not for the consolidated amount of the rent due to all the 16 annas landlords but was a decree in favour of the two co-sharers only who had brought the suit and was for their specific share and that it was accordingly not a rent decree but a money decree only and that the purchaser at the auction sale in execution had no power to annul the incumbrance held by the plaintiff.
The decision of the first appellate Court and that of the single Judge of this Court in second appeal was against this view of the rent suit and decree, both of these Courts holding that section 148A had properly been complied with, and that the decree was a rent decree in accordance with that section.
The second point set up by the plaintiff and upheld by the Subordinate Judge was that the defendants had not proved service of the notice of sale as required by section 158B(2) of the Bengal Tenancy Act inasmuch as the peon's report merely stated that the co-sharer had not been found and that the notice had been affixed to his house. It was contended that the defendants should have proved that resort had not been had to the procedure of affixing the notice to the door until search for the co-sharer had been made by the peon with resultant failure to find him. It was held that this notice, not having been served, invalidated the sale and that the mortgagee-plaintiff was entitled to rely upon this defect. The decision of the Subordinate Judge on this point also was reversed by the first Court of appeal and by this Court in second appeal.
As to the first point it was argued before us that a rent decree under section 148A must be a decree for the whole of the outstanding rent and that the mention in the margin of the decree of shares of ofter co-sharers made it a decree in favour of the amount due to the plaintiff-co-sharer only which it was said was not contemplated by section 148A. In my opinion this view of section 148A is erroneous. The object of the section is quite clearly to protect a plaintiff-co-sharer landlord against the refusal or neglect by his co-sharers to enforce their claims to rent so depriving him of the advantages to be obtained from a rent decree as opposed to a money decree. All that is necessary is that a co-sharer landlord should state in his plaint that he is unable to ascertain the entire amount of rent outstanding to all the co-sharers owing to the refusal of the tenant or the other co-sharers to furnish him with correct information. He must implead his co-sharers and then the “Plaintiff-co-sharer landlord shall be entitled to proceed with the suit for his share only of the rent; and a decree obtained by him in a suit so framed shall, as regards the remedies for enforcing the same, be as effectual as a decree obtained by a sole landlord or an entire body of landlords in a suit brought for the rent due to all the co-sharers.” The meaning and object of the section was considered in this Court in the case of Ram Dhyan Singh v. Pardip Singh by Mr. Justice Manuk. The learned Judge stated:—
“I am of opinion that the essential principles underlying that section are (1) that the suit should, in form, be for the whole rent and in substance for the separate share of rent in arrears; (2) that the Whole body, of landlords are impleaded, with the allegation that the plaintiff has not been able to ascertain what, if any, rents are due to the former. In such cases the whole rent due must, in the nature of things, be always a matter of speculation for the plaintiff and he is entitled to assert that he believes that his share of the rent due is the entire rent due and ask the Court to decide on the accuracy of that belief, if and when the impleaded co-sharers appear and claim any arrears as due to themselves. If his belief is accurate the Court will give him a decree for his share of the rent only as being the entire rent due; if inaccurate, the Court will investigate and decree the arrears due to the impleaded co-sharers as well.”
In accordance with the principles stated by Mr. Justice Manuk the Court which tried the rent suit did investigate the matter and clearly gave to the plaintiff a decree for his share, of the rent only. This decree was made in the presence of all the co-sharers and neither the other co-sharers nor any one else is entitled to question it either by stating that the decree was not for the entire rent due or otherwise. If the other co-sharers had considered that some rent was outstanding and due to them they should have raised it in this suit. On the one hand, therefore, the decree was a decree for the entire rent due and in any case the words of the section are plain and even if the other co-sharer landlords had not felt inclined to claim their shares the section allows the plaintiff-co-sharer landlord to proceed with the suit for his share only of the rent and makes a decree for such share just as effectual as if it had been obtained by the entire body of landlords in a suit for the rent due to all of them. The rent suit and the decree were, therefore, in accordance with section 148A and the purchaser in execution was entitled, to annul incumbrances.
The second point relied on by the plaintiff is based on the contention that the failure to effect notice of the sale required by section 158B(2) was an illegality which rendered the sale absolutely void. In my opinion this contention is equally unfounded. The object of the sub-section is the protection of the co-sharers and if it is not complied with they, and they alone, have a grievance and it is not open to a third party to take advantage of that grievance and allege that the sale is wholly invalid. The failure to effect notice is a mere irregularity and the only person entitled to complain of it is the co-sharer affected. It is open to a co-sharer to waive the benefit of the section. Now an illegality which would make the sale void cannot be the subject of waiver by anybody. The principle was clearly explained by Mr. Justice Mookerjee in Rajani Kanta Ghose v. Sheikh Rahman Gazi.
Both objections to the execution sale urged by the plaintiff-appellant, therefore fail, and I would dismiss this appeal with costs.
Kulwant Sahay, J.:— I agree.
Appeal dismissed.