Mookerjee, J.@mdashThis appeal is at the instance of some of the Defendants and is directed against a judgment of Mookerjee J.
2. The appeal arises out of a suit for rent and the only question which fell to be decided was whether there has been a valid sub-division of a tenancy of Rs. 45-4-1 pie held by the Appellants and their co-sharers. The tenancy, according to the Appellants, was sub-divided as from the beginning of the year 1350 B.S. and the rents payable by Defendants Nos. 1 and 15 were distributed, a sum of Rs. 6-1 anna being held to be payable by Defendant No. 1 and a sum of Rs. 4-8 as. by Defendant No. 15. The Plaintiffs, however, ignored the sub-division and brought the present suit for rent against all the tenants claiming rent at the old rate of Rs. 45-4-1 pie.
3. The Plaintiffs'' assertion was that this sub-division u/s 88 of the Bengal Tenancy Act was a nullity because the notice of the application for sub-division was not served according to law on some of the co-sharer tenants who were minors.
4. This contention was resisted on behalf of the Defendants Appellants. The trial court overruled the Defendants'' contention and decreed the Plaintiffs'' suit. On appeal the judgment of the trial court was reversed. On a further appeal to this Court Mookerjee J. reversed the decision of the lower appellate court and affirmed the decision of the trial Judge. Defendants Nos. 1 and 15 have preferred this appeal.
5. Mr. Roy Choudhury, learned advocate appearing on their behalf, has raised various points in support of the appeal. He has first contended that in a proceeding u/s 88 of the Bengal Tenancy Act all that the law requires is a service of a notice on the co-sharer tenants. The proceedings do not partake of the nature of a suit and Section 141 or the provisions of Order XXXII of the CPC have no application. It is not necessary, however, for the purposes of this appeal to deal with this contention. Even conceding that all that Section 88 requires is a service of a notice on the co-sharer tenants and the landlord, the question still remains whether the notice has been served as required by law.
6. The Bengal Tenancy Act does not expressly provide for the mode of service of the notice u/s 88 of the Bengal Tenancy Act. The material provision is to be found in Rule 2 of the rules framed by the Local Government. That rule states that in case of a notice which has to be served on a minor, the notice shall be served on the minor as also on his legal guardian or a guardian-ad-litem to be appointed for the purpose of the particular application. In the present case, the notices were served on the natural guardian. The question is whether the words "legal "guardian" include a natural guardian for the purpose of the rule. It appears from Section 148(h) of the Bengal Tenancy Act that the Legislature contemplated the issue of a notice in suits for rent on the natural guardian. The Act and the rules framed thereunder thus draw a distinction between a legal guardian and a natural guardian. In my opinion, the words "legal guardian" have been used by the Legislature as distinct from a natural guardian. In this case, it is not pretended that the notice was served on a legal guardian or on a guardian appointed for the purpose of the application. If this view the notice on the minor co-sharer tenants must be deemed not to have been properly served. There can be no question that the order for distribution of rent was a nullity so far as they are concerned.
7. Mr. Roy Choudhury submitted that even so, the only persons who can object are the minors who were not served and the landlord who raised the present dispute should not be allowed to agitate this question. This depends on the view one takes of the effect of an order for distribution of rent in the absence of a co-sharer tenant. As the order for distribution of rent binds the landlord and all the co-sharer tenants and as the order for distribution must specify the rent payable by the tenant applicants and the non-applicants vis-a-vis the landlord, it is apparent that in the absence of one of the co-sharer tenants the order for distribution must be regarded as not binding on any of the parties and the landlord can therefore validly take exception to such an invalid order for distribution of rent. On this ground we are of opinion that the view taken by Mookerjee J, must be affirmed.
8. It is not necessary to deal with the other points on which Mookerjee J. based his decision.
9. The appeal, therefore, fails and is dismissed but in the circumstances of the case we direct that there will be no order for costs.
