Judgement Appeal from a decree of the High Court (Jan. 27, 1897) affirming a decree of the District Judge of Bankura which reversed a decree of the Subordinate Judge of Bankura (June 30, 1896). The suit which the Subordinate Judge decreed was brought by Chintamoni Dutt, predecessor of Fakir Chunder Dutt, and the other appellants, against the mokurruridars, dur-mokurruridars, se-mokurruridars, ryots, and other persons claiming interests in a mouzah called Makarkandi, in pergunnah Chatna, in the district of Bankura. The defendants were ultimately thirty-two in number, including the three respondents who appeared to the appeal. The plaintiff claimed to be the purchaser at a sale, on November 7, 1884, in execution of a rent decree dated January 30, 1884, of the mokurruri tenure (tenure at a fixed rent), of which two of the defendants, Babu Lal Roy and Akhoy Roy, were the registered tenants; and he claimed to be entitled, by virtue of the purchase at the said rent sale and of the relinquishment by the Ghose defendants of their tenures, to set aside all subordinate tenures created by the said mokurruridars and to receive rent direct from the ryots and other immediate occupiers of the land of mouzah Makarkandi. Sect. 66 of Bengal Act VIII. of 1869 provides as follows — " The purchaser of an under-tenure, under the provisions of as. 59 and 60 of this Act, shall acquire it free of all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure, his representatives or assignees, unless the right of making such incumbrances shall have been expressly vested in the holder by the written engagement under which the under-tenure was created or by the subsequent written authority of the person who created it, his representatives or assignees, provided that nothing herein contained shall be held to entitle the purchaser to eject khoodkhast ryots or resident and hereditary cultivators, nor to cancel bona fide engagements made with ryots or cultivators of the classes aforesaid by any holder of the under-tenure or his representatives, except it be proved in a regular suit to be brought by such purchaser for the adjustment of his rent, that a higher rent would have been demandable at the time such engagements were contracted by his predecessor. Nothing in this section shall be held to apply to the purchase of a tenure by the previous holder thereof through whose default the tenure was brought to sale." Sects. 59 and 60 prescribe the procedure to be followed in bringing to sale for an arrear of rent a saleable under-tenure. The facts of the case were found by the District Judge in first appeal, and were no longer capable according to the Code of being questioned. He said — "The plaintiff alleged himself to be the mokurruridar of mouzah Makarkandi, and the object of his suit, shortly stated, was this, that avoiding all intermediate tenures, he might be declared entitled to receive rent direct from the ryots in the mouzah. In order to understand this claim the position of the various parties to the suit, and the defences which they set up, it is necessary to refer to the previous history of the various tenures that have been established in the mouzah. “The mouzah Makarkandi was by a pottah, dated 25th Pous, 1272, granted in mokurruri by the zemindar to Babu Lal Roy and Akhoy Roy. These two persons and their co-sharers are the defendants Nos. 1 to 9, and they all may, as the Subordinate Judge has styled them, be conveniently designated as the Roys. A month or two after obtaining their mokurruri lease Babu Lal and Akhoy, by a pottah dated 27th Magh, 1272, granted a dur-mokurruri lease of the mouzah to Sri Churn Ghose, who is now dead, and is represented by his three sons, Notobur, defendant No. 10, Behari, defendant No. 11, and Gobind, defendant No. 12. Sri Churn had a brother, Srimunt, who was admittedly a co-sharer in the dur-mokurruri with him. Against these two brothers, Sri Churn and Srimunt, a mortgage decree was passed in favour of one Broji Lal, nephew of Chintamoni, the present plaintiff, and in execution of that decree their dur-mokurruri rights were sold at auction and purchased by Chintamonis gomashta, Nil Madhub Banerji, the defendant No. 16, on August 16, 1879. Against these two brothers, Sri Churn and Srimunt, a mortgage decree was passed in favour of one Broji Lal, nephew of Chintamoni, the present plaintiff, and in execution of that decree their dur-mokurruri rights were sold at auction and purchased by Chintamonis gomashta, Nil Madhub Banerji, the defendant No. 16, on August 16, 1879. About eight months afterwards, in April, 1880, Nil Madhub Banerji executed two pottahs sub-letting the rights he had thus purchased; one of these pottahs covered 9 ½ annas of the mouzah and was in favour of Notobur, defendant No. 10, who was Sri Churns eldest son, and the second covered the remaining 6 ½ annas and was in favour of Sri Churns brother Srimunt, defendant No. 13. " Meanwhile the plaintiff Chintamoni had acquired, either by private treaty or by public auction, various shares in the mokurruri rights in the mouzah, and by November, 1884, the extent of the rights so purchased by him amounted to no less than 11£ annas of the entire mouzah. In that month a sale was held in execution of a decree for arrears of the mokurruri rent. The mokurruri lease was sold, and was purchased by the plaintiff Chintamoni, who thus claims to be mokurruridar of the whole mouzah. He alleges that Nil Madhub Banerji verbally relinquished in his favour the rights that he had purchased in August, 1879, and that Srimunt and Notobur, sub-lessees of Nil Madhub, also gave up their sub-leases. In this way he claims that all intermediate tenures have been extinguished ; that he is entitled to receive rent from the ryots direct. His cause of action is that in attempting to collect rent from the ryots direct he has met with opposition, and has had to bring against pattadar tenants suits for rent or khas possession, in which suits he has met with varying degrees of success. Accordingly, in this one suit his object is to have settled once and for all that his claim is well founded, and he has included in it the former mokurruridars, defendants Nos. 1 to 9, the dur-mokurruridars and purchasers from them, defendants Nos. 10 to 15, and the tenants on the land, defendants Nos. 17 to 32. Accordingly, in this one suit his object is to have settled once and for all that his claim is well founded, and he has included in it the former mokurruridars, defendants Nos. 1 to 9, the dur-mokurruridars and purchasers from them, defendants Nos. 10 to 15, and the tenants on the land, defendants Nos. 17 to 32. His gomashta Nil Madhub is, as I have said, the defendant No. 16.” The giving up of their sub-leases by Notobur Ghose and Srimunt Ghose, alluded to by the District Judge in the passage just quoted, was accompanied by the acceptance of tenures similar to the tenures they had formerly held, but subordinate in character, called se-mokurruri tenures. The Subordinate Judge held that the Ghoses had lost their dur-mokurruri rights, but that under the pottah granted by Nil Madhub in April, 1880, they as se-mokurruridars were entitled to receive the rents from the respondents, and were bound under the terms of that pottah to pay rent to the plaintiff. The result of the District Judges findings, on the contrary, was that the dur-mokurruri rights were held to be still subsisting. Then with regard to the issue of law the First Court held that the plaintiff purchaser had precluded himself from exercising the power of setting aside the se-mokurruris because " these se-mokurruris were his own acts; he cannot repudiate them; he granted certain leases, and he cannot cancel them.” The First Appellate Court held that the purchaser did not come within s. 66, and, as already stated, that the dur-mokurruris were not otherwise cancelled. With regard to the plaintiffs position under s. 66, the First Appellate Court held that "the evidence shews that there was an arrangement that the dur-mokurruridars should pay the rent thereof direct to the superior landlord, and there is nothing to shew that any act of the plaintiff caused this arrangement to fall through M; and on this ground he held that " the entire mokurruri interest " had passed to tae plaintiff— that is, the First Appellate Court found that the Ghoses, the dur-mokurruridars, ought to have paid their rent direct to the zemindar, and that the mokurruridars—of whom the plaintiff was one—were entitled to have the rent so paid by the Ghoses to the zemindar, in which case there would have been no arrear and no sale. But it was held that this fact did not discharge the mokurruridars from liability, and that the plain tiff, whether in possession or not (although the learned judge thought he was in, possession), was equally bound with the rest of the mokurruridars to pay the rent, and equally a defaulter by not paying, and that consequently he was, although not registered as mokurruridar, excluded from the benefit of s. 66 of Act VIII. of 1869 (B.C.). The High Court held that the plaintiff, having been found to be the owner of a share in the mokurruri, was " one of the previous holders, and the default of one was the default of all." They added " The mere fact that the holders of the subordinate tenure were, by the arrangement of the mokurruridars, bound to pay the rent to the zemindar, did not relieve Chintamoni or his co-sharers from the responsibility of paying the rent. The words ‘through whose default’ in s. 66 do not, we think, mean that it should be through the actual fault of the previous holder as opposed to the fault of any one else that the rent was not paid. If the persons who under the arrangement referred to should have paid the rent did not pay it, the holders of the mokurruri tenure were bound to pay it and if they did not pay, the default was theirs within the meaning of the section. They might, of course, have paid it at any time previous to the sale and so prevented the sale, but they did not do so." They held that the Ghoses were entitled to rely on this objection to the plaintiffs claim, as, where the section applies, " it does not make any difference who the person raising the objection is; those facts being proved, the section becomes inoperative." As regards the share of Notobur Ghose, they held that his relinquishment of his share " would not operate as a transfer of his right to the zemindar, to whom the relinquishment was made .... nor would it affect the entirety of the tenure held by the other co-sharers." C W. Arathoon, for the appellants, contended that the plaintiff Chintamoni, apart from any acts of his own affecting his rights, was on his purchase in 1884 entitled to avoid the subordinate tenures previously created by the mokurruridars, so far as those tenures were not protected by s. 66 of Act VIII. of 1869 (B.C.)-He was not a " previous holder through whose default the tenure was brought to sale " within the meaning of that expression, for he was an unregistered holder not directly liable for payment of rent, and therefore was under no contract to pay revenue, and could not in consequence be deemed a defaulter. Reference was made to Anundlall Mookerjee v. Bhugwan Chunder Mookerjee (( 1873) 12 Beng. L. R. 489, n.); Act X. of 1859, s. 106; Bengal Act VIII. of 1869, ss. 62, 63; Act XL of 1859, s. 53; Doolar Chand Sahoo v. Lalla Chabeelchand. (( 1878) L. R. 6 Ind. Ap. 47.) The appellant was therefore entitled to the benefit of s. 66 of Bengal Act VIII. of 1869. The Ghose respondents ought not to be allowed to rely upon the non-payment of rent as a default on the part of the plaintiff, for the failure to pay was a breach of duty on their part. The Ghose respondents moreover, and especially Notobur Ghose, recognised the plaintiffs right to avoid the dur-mokurruri tenures, and dealt with him on that footing, and are now estopped from disputing that right. Moreover the evidence shewed that they relinquished their rights as dur-mokurruridars in favour of the plaintiff, thus virtually transferring them. De Gruyther, for the three first respondents, who was heard only on the point of the validity of Notoburs alleged transfer of interest to the plaintiff, contended that there was no evidence thereof. Besides, a co-defendant of Notobur sets up a title as transferee thereof under a registered deed of sale from him, and so any real question as to title arises between co-defendants. Arathoon replied. The judgment of their Lordships was delivered by LORD MACNAGHTEN. In November, 1884, one Chintamoni Dutt (who is now dead and represented by the appellant Fakir Chunder Dutt) purchased at a sale in execution of a rent decree the mokurruri lease of mouzah Makarkandi. Arathoon replied. The judgment of their Lordships was delivered by LORD MACNAGHTEN. In November, 1884, one Chintamoni Dutt (who is now dead and represented by the appellant Fakir Chunder Dutt) purchased at a sale in execution of a rent decree the mokurruri lease of mouzah Makarkandi. This lease had been granted in 1867 by the zemindar, the Rani of Chatna, to a family called " the Roys," two of whom only—Lal Roy and Akhoy Roy—were the registered tenants. The rent suit was brought against them. After his purchase Chintamoni claimed to be mokurruridar of the whole mouzah and entitled to receive rent direct from the ryots. He took proceedings under s. 66 of Act VIII. of 1869 (B.C.) with the view of avoiding all intermediate tenures. He failed because it appeared that although he was not registered as a tenant, he was himself interested to the extent of 11 ½ annas in the mokurruri lease to the Roys. The High Court, affirming the First Appellate Court, held that he was excluded from the benefit of s. 66 by the last clause of the section, which declares that " nothing in this section shall be held to apply to the purchase of a tenure by the previous holder thereof through whose default the tenure was brought to sale." It was contended by the learned counsel for the appellants that Chintamoni was not a u previous holder " because he was not registered as tenant, that at any rate he was not " the previous holder " because he was not interested in the entirety of the property in lease, and that he was not a defaulter or in default because he was not directly liable to the zemindar and injured no one but himself by non-payment. It seems to their Lordships that there is no substance in any of these objections. They think that the expression which Mr. Arathoon criticized in detail must include a person beneficially interested in a tenure who is in a position to protect his interest by paying the rent into court, and yet omits to do so, with the result that the tenure is brought to sale by the superior landlord. "Default" which prevents the section from applying does not necessarily imply any moral obliquity or any breach of con tractual obligation. It simply means non-payment—failure or omission to pay. "Default" which prevents the section from applying does not necessarily imply any moral obliquity or any breach of con tractual obligation. It simply means non-payment—failure or omission to pay. Another point was made on behalf of the appellants. It is dealt with in the judgment of the High Court, but not very satisfactorily explained. It was contended by Mr. Arathoon that the appellants were at least entitled to a decree against one of the dur-mokurruridars—one Notobur Ghose, defendant No. 10, because it was said that on being served with notice of Chintamonis purchase he relinquished his interest in Chintamonis favour. There is no proof of any transfer by him to Chintamoni. In fact, nothing is offered in proof of the appellants contention as to Notoburs interest except a written statement by Notobur in another suit in which he says that on receipt of the notice of Chintamonis purchase he voluntarily gave up possession to Chintamoni. On the other hand, another defendant, Godai Pal, defendant No. 32, alleges in his written statement in the present suit that he purchased Notoburs dur-mokurruri rights on March 7, 1895, by a registered deed of private sale, and that he has been holding the same since that time as the rightful owner and possessor thereof. The question, if there is a question, seems to be one between co-defendants which cannot properly be dealt with in the present suit. Their Lordships will, therefore, humbly advise His Majesty that the appeal ought to be dismissed. The appellants will pay the costs of the appeal.