NARAIN UDDIN Vs. SRIMANTA GHOSE
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Maclean, C J -
(1.) In my opinion the view taken by both the Courts below is correct. I read the words "his tenure or holding shall be liable to sale in execution of a decree for the rent thereof," in Section 65 of the Bengal Tenancy Act as pre-supposing a suit and a decree under the Act, that is, a decree made in a suit in which all the landlord co-sharers are plaintiffs and not merely some of them, that is fractional co-sharers. This view gains support from Section 188 of the Act. Here the claim is for the rent of four years of which the rent of the first two years was properly due and payable to the plaintiffs as the 16 annas landlords, but as regards the last two years rent the plaintiffs were fractional landlords only. At the date of the institution of the suit, the plaintiffs were fractional co-sharers only.
(2.) We are invited to split up the decree and to say that, as regards the first two years rent, it was a decree at the instance of all the landlords and therefore one in which the tenure could be sold. But this is not the decree; it is a decree for the rent of all the four years, and made in a suit in which all the co-sharer landlords are not plaintiffs. The fractional co-sharer landlords have no right to sell the tenure for the rent due for the last two years, and we cannot split up the decree in the manner suggested by the appellant. We can only look at the decree as a whole, and similarly at the suit in which it was made. The appeal fails aud must be dismissed with costs. Banerjee, J.
(3.) I am of the same opinion. The question raised in this case may be shortly stated thus: Whether the sale of a tenure in execution of a decree for rent obtained by certain persons, who did not constitute the entire body of landlords at the date of the suit and of the decree and who were not the entire body of landlords also at the date at which part of the claim for which the rent suit was brought accrued duo, would pass the entire tenure, or merely the right, title and interest of the judgment-debtors in the tenure at the date of the sale.;
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