P L D 1952 Dacca 461 (PLP)

Subsection (2) of the section runs as follows " In the event of no objection being received by the Collector from any co‑sharer of the applicant or from the Zamindar or any of his co‑sharers within six weeks from the time of service or publication of the copy of application under subsection (1) whichever is later, the Collector shall direct the zamindar or zamindars to open a separate account in the name of the applicant to which all payments made by him shall be credited separately to his share. The date on which the Collector directs the opening of a separate account shall be held to be that from which the separate liabilities of the share of the applicant commence." Subsection (3) of that section runs as follows :‑ " If any of the co‑sharers of the applicant or the zamindar or any of his co‑sharers object that the applicant has no right to the share claimed by him, or if the application be in respect of a specific portion of the land of a Taluk, that the amount of rent stated by‑the applicant to have been hereto fore paid on account of such portion of land is not the amount which has been recognised by the other sharers a5 the rent thereof, the Collector shall refer the parties to the Civil Court and shall suspend proceedings until the question at issue is judicially determined." Section 6‑B lays down that "notwithstanding anything contained in any other Act, the provisions of section 88 of the Bengal Tenancy Act, 1885, shall apply mutatis mutandis, to the distribution of rent payable in respect of. a Patni Taluk with the substitution of the words "fifty rupees" for the words "two rupees" in the proviso (b),to subsection (2) of the said section". Section 6‑A as already pointed out, not only empowers co‑sharer of a Patni Taluk to open a separate account but also prescribes formalities to be observed in this connection. The section did not stop there but it went a step further and made the provisions of section 88 of the Bengal Tenancy Act appli cable to Patni Taluks so far as distribution of rent is concerned. That there was distribution of rent as a result of the opening of separate account is not disputed in this case. The learned Advocate for the appellants seeks to maintain that the opening of separate accounts has the effect of fettering the hands of the landlords to bring a single suit against the entire body of Patnidars for the entire rent of the Patni. As provisions of sections 4 (a), 4 (b) and 6 stand, this view cannot be lightly brushed aside. Section 4 lays down that (a) whenever a separate account shall have been ordered to be opened in respect of a share or a portion of a Patni Taluk under subsection (2), or (b) whenever a Patni Taluk shall have been divided or the rent payable in respect thereof, shall have been distributed under section 6‑B, if the Taluk shall become liable for sale for arrears of rent, only that share or portion of such Taluk shall be put up for sale in respect of which the arrears of rent may be due. Last clause of subsection (4) is in the nature of, a manda tory injunction upon the zamindar to proceed only against that share or portion of the Taluk in respect of which arrers of rent .ray be due. This mandatory injunction clearly ventilates the object of introduction of the system of opening of a separate account. By its introduction, a co‑sharer of the defaulting Patnidar has been given protection at certain stage as mentioned in subsection

6. What is provided therein runs as follows " If in the case of sale according to subsection (5) the highest offer for the share or portion offered for sale is not equal to the amount of arrears of rent for which it was advertised for sale and the subsequent arrears of rent due thereon up to the date of sale, the sale shall be stopped and a notice that the entire Patni Taluk shall be put up for sale for such arrears shall be sent to all co‑sharers of the tenant in such manner as may be prescribed by rule to be made by the Provincial Government." On perusal of subsection 2, 4 and 6 of section 6‑A one will feel convenced that with the opening of a separate account, the holder of the share involved comes to be separately liable for the rent due for the same. If that is the legal effect of the opening of a separate account, I fail to understand how a single suit for the rent of the entire Patni Taluk could be maintain able. In this connection the learned Advocate for the appellants has drawn my attention to the case of Debendra Nath Sen v. Ganendra Nath Dara 53 C W N 107 and Airmal Chandra Roy and others v. Jogindra Nath Roy Bahadur and another 49 C W N

161. In Debendra Nath Sen's case it has been laid down that the effect of an order for distribution of rent under section 88 of the Bengal Tenancy Act is to put an end to joint and several liability of co‑tenants and, therefore, an application for pre‑emption after such an order is not com petent. The principle laid down in that case no doubt supports the appellant's case but the facts upon which it was enunciated are not identical with those of the present case. Therein the holding had been amicably divided first and this was followed by distribution of rent, but here we are concerned with this effect of distribution of rent without any such division. Next comes the case reported in 49 C W N (supra). In that case, on an application by the co‑sharers of the applicant under section 88 of the Bengal Tenancy Act, rent was dis tributed although the land was not partitioned. The objection taken by the appellant was that the effect of such distribution was to make the decrees, money decrees with the result that they could only be executed as such. On these simple facts Henderson, J. made the following observations " As a result of the distribution made, the appellant has become the sole tenant of the decree‑holder. It would be impossible to implead the representatives of the other two -thirds share of the original tenancy. It would be rather strange if the law made it impossible for the landlord in such circumstances to obtain a rent decree." With these observations the following law was laid down : " When the rent of a tenure has been distributed under section 88 of the Bengal Tenancy Act, a decree against one of the co‑sharers in respect of his share of the rent is a rent decree executable under Chapter XIV of the Bengal Tenancy Act, although the lands may not have been partitioned." It is true that in the present case there is no dis tribution under section 88 of the Bengal Tenancy Act, but the opening of a separate account is as‑good as distribution of rent. The procedure which is adopted in opening a separate account is the same as adopted in distribution of rent under section 88 of the Bengal Tenancy Act. Applying the principle laid down in the above case to the present case I must say that after the opening of a separate account a zamindar is not competent to file a civil suit against all the co‑sharers. The Courts below, therefore, were not justified in awarding a decree in respect of Aswin, Pous and Chaitra, 1349 B. S. In the result, the appeal succeeds and the decree for kists, Aswin, Pous and Chaitra must stand dismissed. The remaining portion of the decree will stand. I make no order as to costs. A. H. Appeal allowed