It appears to us that having regard to the weight of authority this Court, as well as to the question of principle and convenience, the proper solution of the points referred to us is as follows:— That a sale of a share in a tenure, which has been let to a tenant in its entirety, does not of itself necessarily affect a severance of the tenure, or an apportionment of it rent, but that if the purchaser of the share desires have such a severance or apportionment, he is entitled to enforce it by taking proper steps for that purpose.
If he takes no such steps, then the tenant is justified in paying ??? entire rent, as before, to all the parties jointly entitled to it. ??? if the purchaser desires to effect a severance of the tenure ??? an apportionment of the rent, he must give the tenant due ??? to that effect, and then, if an amicable apportionment of ??? rent cannot be made by arrangement between all the parties ??? the purchaser may bring a suit against the tenant for ??? purpose of having the rent apportioned, making all the other ??? parties to the suit.
??? real injustice will be done to the tenant under such circumstances, because the possibility of the severance of the tenure by butwara, sale, or otherwise, is only one of those necessary incidents of the property, which every tenant is, or must be presumed to have been aware of, when he took his lease; and a regards the costs of any suit which may be brought for the purpose of having the rent apportioned, they would of course be a matter for the discretion of the Court, and would probably depend upon how far in each case the tenant has had a fail opportunity of amicably adjusting the apportionment.
An instance of a suit of this nature will be found in the case of Sreenath Chander Chowdhry v. Mohesh Chunder Banerjee, ??? Cal. Law Reports, 453, decided by Jackson and Cunningham JJ., where seven mouzahs had been let in putni to certain tenant by the zamindar, and then under a decree against the zeminda, three of those mouzahs were sold to A, and the other four to B.
A then brought a suit against the putnidars to have his share of the putni rent apportioned, making B, the purchaser of the other mouzahs, a party to the suit, and it was held that the suit was properly brought.
It appears to us that this case was rightly decided, and that it is impossible, upon principle, to distinguish cases where a tenure is sold privately from those where it is sold by public auction, or, on the other hand, to distinguish cases where a tenure is severed by different portions of its area being sold to different persons, from those where it is sold to different persons in undivided shares.
In all cases of this kind the entirety of the joint interest should be considered as severable at the option of the purchaser, and it would lead to most inconvenient results, and to the depreciation of property thus sold in different lots, if the purchaser of such lots were compelled to collect their rents in one entire sum, conjointly with one another, or with the owners of the unsold shares or portions.
In this particular case, as the plaintiff did not take any proper steps to make arrangements with the tenant or to obtain apportionment of the rent, the learned Judge of this Court not right in dismissing the suit; and this appeal must consequently be dismissed with costs, including those of the hearing the Full Bench.