Kesho Prasad Singh vs Shamnandan Rai and Others

Das, J.—At some date not very relevant to this case, the Maharaja of Dumraon who is the appellant in this Court brought a rent suit against the present plaintiffs, the present defendants Nos. 4-10 and seven other persons who were dead at the date of the institution of the suit. The Maharaja was made aware of the fact that seven of the defendants were already dead and it appears that he filed a petition in the Court asking the Court not to pass any decree against the dead persons. He recovered judgment as against those tenants who are living, but in the decree the names of the dead persons were included. The judgment was pronounced on the 26th April 1919. In due course the Maharaja took out execution and the holding was purchased by the present Defendant Nos. 2 and 3. It was alleged by the present plaintiffs that Defendants Nos. 2 and 3 are the benamidars of the Maharaja. The present plaintiffs applied for setting aside the sale under the provisions of Order 21, Rule 90 of the Code and that application was rejected on the 8th May 1920. On the 17th July 1920 Defendants Nos. 2 and 3 took delivery of possession of the holding. On the 18th August 1920 the suit out of which the appeal arises was instituted by the plaintiffs, respondents for setting aside the decree of the 26th April 1919 on the ground of fraud. Various allegations were made in the plaint so as to raise a case of fraud from start to finish. These allegations have not been examined either by the primary Court or by the lower appellate Court. The Courts below have decreed the suit on the ground that the decree of the 26th April 1919 obtained by the Maharaja was a nullity inasmuch as it was obtained against dead persons .It should be mentioned that the holding purchased by Defendants Nos. 2 and 3 comprises an area of 1455 acres and that the plaintiffs in this suit claim to recover 6''36 acres as their share in the holding.

It is not open to doubt that a decree against a dead person is a nullity. This was laid down in Jangli Lal v. Laddu Ram Marwari AIR 1919 Pat 430, but the question whether the whole decree is a nullity must depend on the question whether the failure on the part of the landlord to bring the representatives in interest of the deceased tenants on the record affected his right to proceed with the suit. This again must depend on the question whether the tenants who are properly sued could take the plea that the suit could not proceed until the representatives in interest of the deceased tenants were brought on the record. Now on this question it seems to me that only one answer is possible. u/s 43 of the Indian Contract Act the liability of the joint promissor is joint and several and that section excludes the right of the joint contractor to be sued along with his co-contractors. It was in my opinion open to the landlord to bring a suit for rent against all or any of the tenants, though it may be conceded that a decree against some of the tenants cannot be executed as a rent decree and can only be executed as a money decree. This view has been affirmed in oases far too numerous to mention. In Ananda Kumar Naskar v. Hari Das Haider [1900] 27 Cal 545 a decree was a obtained in a suit for rent against some only of the tenants. It was held that the sale did not pass the entire jama, but that only the right, title and interest of the judgment-debtors passed. In Jogendra Nath Roy v. Nagendra Narain Nandi [1907] 11 CWN 1026 it was held that a suit for rent against some of several joint tenants is maintainable, as joint, tenants are jointly and severally liable. In Chandra Nath Tewari v. Protap Udai Nath Sahi AIR 1914 Cal 611 it was held that a decree obtained against some of the tenants cannot be executed as a decree for rent, but that is open to the landlord to treat the decree as a decree for money and to execute it as such. In Joy Gobind Laha v. Manmotho Nath Banerji (1906) 33 Cal 580 the question arose whether the whole appeal had abated because one of the tenants had died and no legal representative of the deceased had been brought on the record. It was held that the liability of the tenants being joint and several the death of one of the tenants without his legal representative being substituted in his place did not have the effect, of exonerating the other defendants from the liability. The case was followed in Abdul Aziz v. Basdeo Singh (1912) 34 All 604 . I find that a similar view has been taken in this Court in Nathuni Narayan Singh and Others Vs. Mahant Arjun Gir and Others, .

Now this being the position, it is quite clear that the entire decree obtained by the Maharaj a on the 26th April 1919 cannot be regarded as a nullity. It is quite true that the holding did not pass at the execution sale which followed the decree of the 26th April 1919 and it is also true that the interests of those tenants who were dead before the institution of the suit did not pass at the sale. But the present plaintiffs were parties to the suit and their interests undoubtedly pass at the sale. In my opinion the Courts below were wrong in decreeing the claim of the plaintiffs on the ground that the decree of the 26th April 1919 was a nullity.

But the questions which were raised by the plaintiff have not been investigated by the Courts below and I should like to point out that the coarse adopted by the learned Additional Subordinate Judge was wrong. It may be that he was confident that his decision on the point of law was a correct decision, but it is at least conceivable that a superior Court may differ from him as to his decision on the point of law and in my opinion the learned Additional Subordinate Judge should have tried all the issues that arose in the case. This would have had the effect of not only shortening the litigation, but of saving of costs to the parties.

I would allow the appeal, set aside the judgment and the decree passed by the Courts below and remand the case to the lower appellate Court with instructions that it should remand the case to the Court of first instance for decision of the questions of facts raised in the case. The appellant is entitled to the costs both of this Court and in the Courts below. The costs incurred in the first Court will abide the result and will be disposed of by the learned Subordinate Judge.

We are informed that one of the plaintiffs is the representative in interest of one of the dead persons. If that be so, his interest has not passed by the execution sale. The learned Subordinate Judge in dealing with the case will bear this in mind.

Adami, J.

I agree.