Judgement Appeal from a decree of the High Court (June 3, 1904), affirming a decree of the Subordinate Judge of Rajshahye (December 17, 1900). The main question decided was whether the appellant, as one of the co-sharers in the zemindari interest in an estate known as Dihi Haloti, is entitled to sue for the whole rent due from the putnidars of the said estate, making his co-sharers in the zemindari interest parties to the suit as defendants. In the year 1837 one Raja Ram Chundra Bahadur was the sole owner of a separate eight-anna share in the said estate. On April 23, 1837, he made a putni settlement of his eight-anna share with one C. I. Abbott on a yearly rental of Rs.6349.6.10. Both the zemindari and the putni interest changed hands. In the year 1900 the zemindari interest was held as follows The appellant, six annas; respondents 14 and 15, one anna; respondents 2, 3 and 16, one anna. The putni interest was held by the remaining respondents, and also by respondent No. 16, by purchase. To the respondent zemindars the putnidars paid nearly the whole of the proportion of the rent they were entitled to. To the appellant they paid no rent at all. He gave notice to the other zemindars asking 25 Law. Rep. 35 Ind. App. 73 ( 1907- 1908) Raja Pramada Nath Roy V. Raja Ramani Kanta Roy 126 them to join him in a suit for the arrears of rent due, and on their failure to do so he sued, making all the putnidars and the co-sharer zemindars defendants thereto. The plaint recited the above facts, and claimed a decree for the whole rent due on the putni, amounting to over Rs.27,000, The purpose in thus framing the suit was to enable the appellant to bring to sale the putni tenure itself in default of payment. The plaint recited the above facts, and claimed a decree for the whole rent due on the putni, amounting to over Rs.27,000, The purpose in thus framing the suit was to enable the appellant to bring to sale the putni tenure itself in default of payment. The written statement of respondents 1 and 4 contained the folio wing defence, which alone is material "As the respective predecessors of the plaintiff and of the performa defendants brought separate suits for arrears of rent, and acquired decrees on account of their respective shares, and also amicably realized the same by separately granting dakhilas in respect of the putni described in the plaint, the suit for arrears of rent brought by the plaintiff in its present form cannot proceed." The Subordinate Judge decreed in favour of the appellant for his share of the arrears of rent due, saying " It appears from the decrees put in evidence by the defendants that the collection of the plaintiffs share is separate. This separated collection therefore gives rise to the presumption that by some arrangement which has been consented to by the co-sharers and the tenants, separate payment of a particular share of the rent has hither to been made to the plaintiff. That being so, so long as the arrangement continues, the plaintiff is not competent to sue for the whole rent, even though the co-sharers are made parties to the suit." The High Court upheld this view by a majority, Geidt J., the dissentient judge, being of opinion that the appellant was entitled to a decree in a suit properly framed for the whole rent due as the only method by which he could enforce the statutory right conferred by the Bengal Tenancy Act of bringing the tenure itself to sale for the recovery of the arrears of rent due therefor. J. R. Atkin, K.C, and De Gruyther, for the appellant, contended that the appellant was entitled to sue for the whole rent due on the tenure with a view to bring it to sale under the Bengal Tenancy Act (VIII. of 1885). Sect. 188 gives that power to the landlords collectively, and it followed that, if they did not agree so to. act, the appellant could by the ordinary rule of civil procedure exercise the right, making the dissentient co-owners defendants. of 1885). Sect. 188 gives that power to the landlords collectively, and it followed that, if they did not agree so to. act, the appellant could by the ordinary rule of civil procedure exercise the right, making the dissentient co-owners defendants. No agreement, express or implied, had been proved whereby the appellant had deprived himself of his ordinary rights under his kabulyat or his statutory rights under the Bengal Tenancy Act. And the separate collection of their shares of rent by the co-owners does not bar them, or any one of them from suing in such a manner as will enable him to sell the tenure. Reference was made to s. 65, ss. 159 et seq., and s. 188; Bengal Act (VIII. of 1869), ss. 22, 29 and 64; Act XI. of 1859, ss. 6, 10 and 13 ; Bengal Act (VII. of 1868), s. 11; Guni Mahomed v. Moran (( 1878) I. L. R. 4 Calc. 96.) ; Jiban Krishna Roy v. Brojo Lal Sen. (( 1903) L. R. 30 Ind. Ap. 81.) C. W. Arathoon, for the first respondent, the purchaser of an interest in the putni tenure, and for the Moitra respondents who were owners of a one-anna share of the zemindari interest, one of them being also a purchaser of an interest in the putni tenure, contended that an agreement had been cometo between the zemindars and putnidars under which the shares of putni rent should be separately paid to the co-snarers in the zemindari. The evidence shewed that an agreement to that effect had been come to and had been consistently acted upon, each co-sharer having, so far as he had received his rent, been paid separately. There had been created separate rights on the one side, separate liabilities on the other. That operated to deprive the collective owners of the right which they would otherwise have had of obtaining a decree for the rent as a whole. If they could not collectively sue for a decree to that effect, it followed that one could not sue therefor by making his co-owners defendants ; and see on this point s. 188. Accordingly the remedy of bringing the tenure to sale in that way was lost. So long as the agreement lasted the appellant was bound by it and was precluded from bringing this suit. He 25 Law. Rep. 35 Ind. App. Accordingly the remedy of bringing the tenure to sale in that way was lost. So long as the agreement lasted the appellant was bound by it and was precluded from bringing this suit. He 25 Law. Rep. 35 Ind. App. 73 ( 1907- 1908) Raja Pramada Nath Roy V. Raja Ramani Kanta Roy 127 referred to the sections already cited of the Bengal Tenancy Act; Rajnarain Mitter v. Ekadasi Rag (( 1899) I. L. R. 27 Calc. 479, 483.) ; Beni Madhub Roy v. Jaod Ali Sircar (( 1890) I. L. R, 17 Calc. 390.) Gopalchnnder Das v. Umesh Narain Chowdhry, (( 1890) I. L. R 17 Calc. 695,697.) Atkin, K.C., replied. The judgment of their Lordships was delivered by SIR. ARTHUR WILSON. This appeal raises a question upon the construction and effect of the Bengal Tenancy Act, a short question, but one which may be of considerable importance wherever that Act applies. The facts of the case are not in dispute, and are simple. In the year 1837 the then owner of the zemindari interest in an eight-anna share in Dihi Haloti created a putni tenure in those eight annas in favour of one Abbott at a rent reserved. The zemindari and the putni interests both underwent subsequent devolutions, and at the time which is now material the present plaintiff (appellant) held six annas of the zemindari interest, respondents 14 and 15 held one anna, and respondents 2, 3 and 16 one anna. The putni interest was held by the remaining respondents, and also by respondent 16. The last mentioned, therefore, was interested both in the zemindari and in the putni. The putni rent fell into arrear so far as the share which should have come to the appellant was concerned. The appellant thereupon brought the present suit on April 17, 1900, in the Court of the Subordinate Judge of Rajshahye. He made the putnidars defendants, and he joined as co-defendants his co-sharers in the zemindari on the ground that they refused to join him as plaintiffs. The suit was framed as one under the • Bengal Tenancy Act to recover the whole rent of the tenure, and for that purpose to bring to sale the tenure itself. But the plaint asked in the alternative or a decree for the plaintiffs share of the rent. The suit was framed as one under the • Bengal Tenancy Act to recover the whole rent of the tenure, and for that purpose to bring to sale the tenure itself. But the plaint asked in the alternative or a decree for the plaintiffs share of the rent. The Subordinate Judge refused to make a decree under the Bengal Tenancy Act for the whole putni rent, and gave a decree only for the plaintiffs share of the rent. On appeal the case came before two judges of the High Court, Ghose and Geidt JJ., who differed in opinion, Ghose J. holding that the view of the Subordinate Judge was correct, Geidt J. being of the contrary opinion. In consequence of this difference the case was referred to a third judge, Brett J., who agreed with Ghose J., with the result that the appeal was dismissed. Against that decision the present appeal has been brought, and it lies upon their Lordships to determine which of the views taken by the learned judges ought to prevail. Sect. 65 of the Bengal Tenancy Act enacts that, - Where a tenant is a permanent tenure holder . . . . he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon." Sect. 159 and the following sections provide the means and procedure for so bringing the tenure to sale, and for the cancellation of incumbrances thereupon. The only other section which it is necessary to refer to is s. 188, which says that, "Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorized to do must be done either by both or all those persons acting together, or by an agent authorized to act on behalf of both or all of them." By the express terms of the Bengal Tenancy Act, in the event of rent being unpaid, the owners of the zemindari interest are entitled, by suit under that Act, to bring a putni to sale, with the consequences prescribed by the Act. And it is a general rule—a rule not derived from the Bengal Tenancy Act, but from quite another branch of law, namely, the general principles of legal procedure—that a sharer, 25 Law. Rep. And it is a general rule—a rule not derived from the Bengal Tenancy Act, but from quite another branch of law, namely, the general principles of legal procedure—that a sharer, 25 Law. Rep. 35 Ind. App. 73 ( 1907- 1908) Raja Pramada Nath Roy V. Raja Ramani Kanta Roy 128 whose co-sharers refuse to join him as plaintiffs, can bring them into the suit as defendants, and sue for the whole rent of the tenure. This must apparently be the law applicable to the present case, unless there be something to exclude the case from the operation of these general rules. For the purpose of this exclusion, what was relied on was this it was said that, by express or implied agreement between the zemindars and the putnidars, the shares in the putni rent of the several zemindars were to be paid, and so far as they were paid at all were, in fact, paid, separately; and it was contended that that agreement, on the one band, entitled the separate zemindars to sue for their separate shares, and to bring to sale the right, title, and interest of the putnidars, but? on the other hand, either precluded the zemindars altogether from obtaining a decree under the Bengal Tenancy Act for the rent as a whole, or at any rate prevented one of the zemindars from doing so by making his co-sharers defendants. This was the contention which prevailed with the Subordinate Judge and with two out of the three judges in the High Court. The evidence of the alleged agreement consisted of certain decrees, which seemed to shew that the shares of the rent had been from time to time separately recovered. It has long been held in Bengal that agreement, either expressly proved or implied by the conduct of the parties, may establish the right to sué separately for the shares of rent receivable by the separate shareholders ; and their Lordships have no inclination to question that course of rulings. But it has been equally clearly laid down in Bengal that such an arrangement, expressed or implied, merely affects the right to sue separately for rent, and in no other respect modifies the terms of the holding; and their Lordships think that this is clearly a sound view of the law. But it has been equally clearly laid down in Bengal that such an arrangement, expressed or implied, merely affects the right to sue separately for rent, and in no other respect modifies the terms of the holding; and their Lordships think that this is clearly a sound view of the law. And it appears to their Lordships to be sufficient ground upon which to decide this appeal, for it follows, from the propositions referred to, that the right to bring the tenure to sale for arrears of rent remains intact, and also the right of one sharer to sue, making his co-sharers defendants when they will not join as plaintiffs. It only remains to notice s. 188, cited above. It was suggested in argument that this section precludes a suit under the Act, for the aggregate rent of the tenure, unless all those entitled to share in the rent join as plaintiffs. Their Lordships are not impressed by this argument. The filing of a suit is not a thing which the landlord is, under the Act, required or authorized to do. It is an application to the Court for relief against an alleged grievance, which the plaintiff is entitled to submit, not by reason of any provision of the Tenancy Act, but under the general law. Their Lordships will humbly advise His Majesty that this appeal should be allowed ; that the decrees of both Courts in India should be discharged, and that instead thereof it ought to be declared that the appellant is competent to bring a suit, under the Bengal Tenancy Act, for the whole rent due in respect of the property in suit; that the case ought to remitted to the High Court to take the necessary steps for the disposal thereof on the footing of the above declaration ; and that the respondents who defended the appeal to the High Court ought to pay the costs thereof, and that the costs in the Court of the Subordinate Judge ought to be dealt with by that judge on the above footing. The respondents who defended this appeal will pay the costs of it.