Mukerji, J.
1. These two appeals have arisen out of a suit for enforcement of a simple mortgage bond. They are directed against a preliminary decree for sale. The bond was executed by one Raj Mohan Guha designating himself as:
common manager, Estate No. 411, Taluk Raj Narain. Son, and the tenures Sikmi Patni etc., thereunder,
on 5th Magh 1322 (19th January 1916) for a principal amount of Rs. 30,000 with a stipulation to repay the amount of principal and interest with annual rests in two instalments; one in Pous 1325 and the other in Pous 1327. Deducting certain payments the claim amounted to Rs. 41,000 and odd. Defendant 1 in the suit was the present common manager one Jatindra Mohan Ghose. A subsequent mortgagee was defendant 2. Defendants 3 to 138 were the owners of the taluk and the sikmis and patnis thereunder.
2. Appeal No. 220 is by the common manager. In this appeal two contentions have been urged: first, that the suit was not maintainable in the absence of a notice on the appellant under Section 80, Civil P. C; and second, that no permission having been taken of the Court by which the appellant or his predecessor was appointed common manager the suit was not competent. The Subordinate Judge held that neither the notice nor the permission was necessary.
3. The correctness of the decision in Beni Madhab v. Upendra Chandra [1919] 53 I.C. 747 in so far as it has been held therein that a common manager is a public officer within the meaning of the Code has not been questioned, and the arguments before us have proceeded on the footing that the common manager is a public officer as defined in the Code.
4. On the question of the notice under Section 80, Civil P.C., the view taken by the Court below was that the section, in so far as it applies to suits against public officers, does not apply to suits ex-contractu. The plaintiff-respondent seeks to uphold this view by reference to the Bombay decisions in which it has been held that the requirement of a notice under that section is limited to suits on tort and that no notice is necessary in suits founded on contract; see Bhan Balapa v. Nana [1889] 13 Bom. 343 Sardar Singji v. Ganpat [1890] 14 Bom. 395 and Rajmal v. Hanmat [1896] 20 Bom. 697. The argument adduced on his behalf is that the Judicial Committee in the case of Bhag Chand v. Secy. of State did not mean to disturb the effect of these decisions but disapproved only those cases (e. g.), Secy. of State v. Gajanan Krishnarao [1911] 35 Bom. 362 Naginlal v. Official Assignee [1913] 37 Bom. 243 and Secy. Of State v. Gulam Rasul [1916] 40 Bom. 392 in which the Court had gone further and held that even in these classes of suits, namely, suits on torts, when the relief sought for was in the nature of an injunction notice was not necessary.
5. The precise effect of the decision of the Judicial Committee in Bhag Chand's case has to be considered. The suit in that case was against the Secretary of State for India and the Collector and District Magistrate of Nasik for a declaration that certain official notices and orders were ultra vires and invalid, and for an injunction permanently restraining all executive action thereunder. Notice of the suit was given to the Collector and their Lordships' judgment shows that it did not appear that any notice was served on the Secretary of State, but on that no independent ground of defence had been raised. It was common ground, as appears from their Lordships' judgment, that the suit was one to which Section 80 applied, and the contest was as to its effect when applied. The suit was begun less than two months after the notice had been given. Their Lordships explained the scope of Section 80 in these words:
This section and its predecessor have stood for over 40 years, substantially in the same form, as a protection to officials in precise terms against personal responsibility for official action. How far-reaching such protection ought to be is a matter of policy; how far it actually extends is a question of judicial construction.
6. Their Lordships then pointed out a conflict that existed between the High Court of Bombay, on the one hand, and all other High Courts in India, on the other, as to the applicability of the section in the case of suits against officials for acts purporting to be done in the discharge of their duties when part or the whole of the relief claimed is a perpetual injunction. It should be observed here that there having been no question raised as regards the notice to be served on the Secretary of State for India in Council, it was not necessary for their Lordships to consider, nor did their Lordships in fact consider, whether there was any real distinction intended in the section between suits against him and suits against public officers; there being no restriction laid down in the section in so far as suits against him are concerned, while a suit against a public officer being qualified by the restrictive words:
in respect of any act purporting to be done by-such public officer in his official capacity.
7. That there is a difference in wording cannot be denied, for grammatically these words cannot go with the words:
no suit shall be instituted against the Secretary of State for India in Council.
8. In considering the conflict noted above, their Lordships observed:
After some differences of opinion among their subordinate Courts, the High Courts of Calcutta, Madras and Allahabad have now agreed in deciding that these sections are to be strictly complied with and are applicable to all forms of action and all kinds of relief.
9. Of the cases referred to in this connexion none related to a suit based on a contract, and the only one which may have a bearing on the question we are now considering is the case of Secy. of State v. Rajlucki Debi [1898] 25 Cal. 239. In that case the action was against the Secretary of State for setting aside a sale held to meet certain claims of the Government. Maclean, C. J., overruled the contention that the words:
in respect of an act purporting to be done by him in his official capacity
applied to the case of the Secretary of State for India in Council and explained the words 'no suit shall be instituted' in these words:
We are asked to cut down the ordinary meaning of the words, and to hold that they mean something quite different from what in their ordinary acceptance they do. The section says: 'No suit shall be instituted.' We are told we ought to confine the words to a particular class of suits, that is to say, suits founded on tort, and claiming damages. I am unable to see why the section should be cut down as suggested.
10. It is clear that the learned Chief Justice was not considering the meaning of the restrictive words used in connexion with suits against public officers. It may be pointed out here that the cases of Ratan Chand v. Secy. of State [1915] 27 I.C. 232 and Manindra Chandra Nandi v. Secy. of State [1907] 34 Cal. 257 referred to in that case, are also cases of suits against the Secretary of State in which it was held that a notice under Section 80 is necessary in a suit against him arising out of a contract. To turn again to the judgment of their Lordships in Bhag Chand's case the rest of the judgment deals with the question whether the section was confined to actions of tort or whether a prayer for a relief in the shape of injunction excludes the suit from the operation of Section 80. And their Lordships then observed:
A view therefore about a bill of injunction against serious and irreparable damage requiring the intervention of the Court, almost undisputed in the Court of appeal, would not be any guide to the meaning of the Civil Procedure Code, where the clause applies to all officers of Government and to all their official acts, and where the words 'in respect of,' a form going beyond 'for anything done or intended to be done' show it to be wider than the statutes on which the English authorities are founded.
11. Their Lordships held that a suit in which (inter alia) an injunction is prayed is still a suit. Reading the judgment as carefully as possible we have not been able to find anything in it which may suggest that so far as suits against public officers, are concerned, all suits, irrespective of the nature of their causes of action, are intended to be included in Section 80. At the same time it is perfectly clear that their Lordships were dealing with the section as a whole, and there is nothing to indicate, while on the other hand there is much to the contrary, that their Lordships saw any distinction between suits against the Secretary of State for India in Council and suits against public officers such as the section speaks of. For, as already observed, when explaining the scope of the sections and when pointing out the conflict that exists their Lordships have referred to the sections as a whole. Again, their Lordships desired to set the conflict at rest because they said:
As the Code of Civil Procedure is applicable to all the High Courts in India and Section 80 is intended to afford a protection (whatever exactly it may be) to all officials, high and low, it is certainly undesirable that a difference of opinion such as it is should be loft unresolvod.
12. Their Lordships also said:
The Act albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions.
13. In those circumstances, to construe the meaning of the words
suit in respect of any act purporting to be done by such public officer in his official capacity
we have to ask ourselves: 1st what is the meaning of the word 'act' or in other words does the expression ''suit in respect of an act' include a suit on a contract; and 2nd, is there a real distinction intended between suits against the Secretary of State for India in Council and suits against public officials?
14. There is no authority of Indian Courts to help us in the interpretation of these words except an observation of the Allahabad High Court in the case of Skippers & Co. v. E.D. David : AIR1927All132 , in which an Official Assignee had been made a party defendant in a suit to enforce a charge against a purchaser, on the ground that he was in possession of the purchaser's assets, and when holding that Section 80 did not apply the learned Judges observed:
The Official Receiver is joined as a party in whom the property vests for the time and not as the party who made a contract or was guilty of any breach of it.
15. Prior to the Public Authorities Protection Act, 1893 (56 & 57 Vict. C. 61) there were other Acts in which there were protection clauses for Public Authorities, namely, the Public Health Act, 1848, the Metropolis Management Act, 1862, and the Public Health Act, 1875: see Bhag Chanel's case . The words of the Public Authorities Protection Act, 1893, Section 1, are these:
Any action . . . for any act done in pursuance, or execution, or intended execution of any Act of Parliament or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, duty or authority.
16. Considering the effect of those words in Milford Docks Co. v. Milford Urban District Council [1901] 65 J.P. 483 A. L. Smith, M.E. said:
The defendant Council has refused to pay the cost pursuant to the contract and the real point raised is that the action falls within the provisions of Section 1, Public Authorities Act 1893 .... What is the moaning of that Act? It has been decided that the title may be read as part of an enactment. The title of this Act is of prime importance because it shows the intention of the legislature and what was the object aimed at in passing it. The title is: 'An Act to generalize and amend certain statutory protection of persons acting in the execution of statutory and other public duties.' Those wore the persons to be protected. Section 1 provides that the action shall not lie or be instituted unless it is commenced within six months after the act, neglect or default complained of. Was the present action brought against the defendant Council for not repairing the road? Not at all, if it had been, it would have been for a default, and would I think, fall within the Act. The Council said: 'You repair the road and, and if we arc liable we will pay you the cost.' The plaintiffs then executed the work, and one has only to look at the real action as brought upon the contract to sec that it is not within the Act.
17. Vaughan Williams, L.J., agreed. And Romer, J., said:
The Public Authorities Protection Act, 1893, does not apply to actions for the price of goods sold and delivered and for work and labour done. The fact is that the Act deals with some cases of a wrong done by a public authority. In this case there was a contract to pay conditional upon liability to repair.
18. In Clarke v. Lewisham Borough, Council [1902] 67 J.P. 195 Bigham, J., said that the authorities cited and good sense showed that the Act was not intended to apply to actions for breach of contract. In National Telephone Co. v. Mayor of Kensington-upon-Ilull [1903] 89 L.T. 291 at p. 293 said:
I do not think the Act was intended to apply to a case which turned upon the construction of a contract and the effect of acts done under that contract, the protection given to persons acting in execution of a statutory and other public duties.
19. The case was one in which a public body had terminated a contract and it ?was alleged that they had done so wrongfully. In the case of Sharpington v. Fulham Guardians [1904] 2 Ch. 449 which was an action founded upon a breach of a contract which a public body had entered into with a contractor who was to execute certain works for them, Farwell, J., said:
It is said that this broach of contract is a neglect or default in the execution of a public duty or authority within the section I have read. It is curious that no decision on the precise point has been found; but in my opinion this is an attempt to carry the effect of the Act much further than any ease has ever gone before, and further than in my opinion it ought to be carried. Public Authorities now perform many functions which compel them to enter into all sorts of contracts; but this is the first time it has been suggested that on any construction the Act could apply to contracts of this nature. The defendants' counsel had not the courage to follow their argument to its logical conclusion and say that every contract entered into by a public body is within the Act. But every contract entered into by a public body is necessarily in a sense entered into in discharge of a public duty or under statutory authority for otherwise it would be ultra vires. And I think it would necessarily follow if I decided in the defendants' favour that every contract entered into by a public authority is an act done in pursuance of a public duty or authority and therefore is one to which the Act applies. I do not see where to draw the line . . . . The public duty which is here cast upon the guardians is to supply a receiving house for poor children; a breach or negligent performance of that duty would be an. injury to the children or possibly to the public, who might be injured by finding the children on. the highway. In order to carry out this duty they have power to build a house or alter a house, and they accordingly entered into a private contract. It is a breach of this private contract that is complained of in this action. It is not a complaint by a number of children or by a member of the public in respect of a public duty. It is a complaint by a private individual in respect of a private injury done to him. The only way in which the public duty comes in at all, is, as I have pointed out, that if it wore not for the public duty any such con-tract would be ultra vires, but that would apply to every contract. I cannot find any ground for saying that this particular contract comes within the Act. I think it is clear that what is complained of is a broach of a private duty of the guardians to a private individual. The result is that so far as this section is concerned, the action will lie.
20. In the case of Jeremiah Ambler & Sons Ltd. v. Bradford Corporation [1902] 2 Ch. 585 at p. 594 there is in the judgment of Romer, L.J., a suggestion that the Act only applies to an action
whose ground is an act done by the defendants directly in execution or intended execution of their public duty or authority
which would seem to suggest that it would not apply to an action based upon a contract which was only incidental to their duty. A decision of very high authority is that of the House of Lords in Bradford Corporation v. Myers [19161] 1 A.C. 242 in which the defendants, a Municipal Corporation, were authorized by Act of Parliament to carry on the undertaking of a gas company and were bound to supply gas to the inhabitants of the district and they were empowered to sell the coke produced in the manufacture of the gas. The defendants contracted to sell and deliver a ton of coke to the plaintiff and by the negligence of their agent the coke was shot through the plaintiffs' shop window. Separate speeches were made by the noble Lords which elucidated many of the points which arose upon the construction of the Act of 1893. Lord Buckmaster dealing with the view which Lush, J., had taken, namely, that the Act did not apply as the action being one for a broach of contract was not within the protection of the Act observed:
The difficulty cannot, I think, be resolved by a simple distinction between questions of tort arising out of contract and questions of tort arising independently of contract; but the fact that actions on contracts made by the local authorities have been held to be outside the statute shows that the Courts have considered the words of the Act to need careful and strict scrunity. This indeed is apparent both from the purpose and the language of the statute . . . Not, it must be conceded that the Act applies only to a definite class of persons and to a definite class of action ... In other words, it is not because the act out of which an action arises is within their power that a public authority enjoys the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute or in the discharge of a public duty or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public and that in the exercise or discharge of such duties or authorities this protection does not apply.
21. Viscount Haldane said:
My Lords, in the case of such a restriction on ordinary rights I think that the words used must not have more read into them than they express or of necessity imply, and I do not think that they can be properly extended so as to embrace an act which is not done in direct pursuance of the provisions of the statute or in the direct execution of the duty or authority. What causes of action fall within these words it may be difficult to say abstractly or exhaustively. It is hardly easier to define a priori the meaning of being done directly than it is to define what will make a heap. But just as it is not difficult to toll a heap when it is seen, so it may be easy at least to say of certain acts that they are not the immediate and necessary outcome of duty or authority in a particular case.
22. Referring to the decision of Farwell, J. in Sharpington v. Fulham Guardians [1904] 2 Ch. 449 that the Act did not apply where in the execution of a public duty the guardians had contracted with a builder to build for them a receiving house for the children of paupers, and the builder was suing them for breach of the particular contract they had entered into, because although such a contract was intra vires in view of their general duty, there was no duty to enter into the particular contract, his Lordship said:
For it seems to me that the language of Section 1 does not extend to an act which is done merely incidentally and in the sense that it is the direct result, not of any public duty or authority as such, but of some contract, which it may bo, that such duty or authority put it into the power of a public body to make but which it need not have made at all.
23. Lord Atkinson quoted with approval what was said by Far well, J., in Sharpington v. Fulham Guardians [1904] 2 Ch. 449 and also the following passages from the judgment of Brett, M. E., in Midland Bail-way Co. v. Withington Local Board [1883] 11 Q.B.D. 788 which was a case under the Public Health Act of 1875:
It has been contended that it is an action in contract, and that whenever a suit is brought upon a contract, the section does not apply. I think that where an action has been brought for something done or omitted to be done under an express contract the section does not apply ', according to the cases cited an enactment of this kind does not apply to specific contracts.
24. Lord Shaw quoting the relevant portion of Section 1 of the Act of 1893 and pointing out that the pinch of the case lay in the word authority' said thus:
Granted that the respondents had not a statutory duty to sell coke, still they had authority to do so, and what is here complained of is neglect in doing a thing which is authorized by statute. I think the appellants' counsel was justified in attaching weight to this word and that it extends the ambit of the limitation. But there is another word in the section which must not be left out of view. It is not enough' that the neglect occurs in the doing of a thing which is authorized by the statute, but the. thing done is not every or any tiling done but must be something done in the execution of a. public duty or authority and it is only neglect in the execution of any such duty or authority that is covered by the statute. The restriction appears to me to be vital.
25. His Lordship explained what contracts would or would not be within the statute and in that connexion observed thus:
If there be a duty arising from statute or in the exercise of a public function there is a correlative right similarly arising. A municipal tramway car depends for its existence and conduct on say, a private and many public acts, and the corporation in running it ' performing a public duty. When a citizen boards such a car, in one sense he makes, by paying his fare, a contract; but the boarding of the car, the payment of the fare and the charging of the corporation with the responsibility for safe carriage are all matters of right on the part of the passenger, a public right of carriage which he shares with his fellow citizens, correlative to the public duty which the corporation owes to all. Similarly, when a municipality, by virtue of private and public statutes, carries on a gas undertaking the public duty of manufacture and supply finds its correlative in the right of the consumer, a public right which he has in common with all follow house-holders, to supply and to service. In both of these cases the Public Authorities Protection Act applies. But where the right of the individual cannot be correlated with a statutory or public duty to the individual the foundation of the relations of parties does not lie in anything but a private bargain which it was open for either the municipality or the individual citizen, consumer, or customer to enter into or to decline. And an action on either side founded on the performance or nonperformance of that contract is one to which the protection, does not apply, because the appeal which is made to a Court of law does not rest on statutory or public duty, but merely on a private and individual bargain.
26. The above extracts quoted from the illuminating speeches fully explain the scope of the Statute of 1893. The difference in the wording of the two statutes must however be always kept in view. The words in Section 80 of the Code are 'suit ... in respect of any act purporting to be dons by such public officer in his official capacity.'
27. The words of the Statute of 1893, as already pointed out, are
Any action . . . for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such act, duty or authority.
28. As pointed out by their Lordships of the Judicial Committee in Bhag Chand's case the words 'in respect of' is a form going beyond for anything done or intended to be done.' Then the words, 'any act purporting to be done' in his official capacity go very much further than 'any act done in pursuance or execution or intended execution, etc.' Under Section 80 it is enough that the act is done and that it is purported to have been done in an official capacity; and it is not necessary to go further and inquire whether it was done in execution or intended execution of any statute or public duty or authority. In construing the English Act Lord Shaw observed in Bradford Corporation v. Meyers (18):
The same principle applies where the act complained of arose through broach of contract or through tort. I take no stock of such distinction for the Act does not; it speaks of 'an act done.' In numerous cases the one legal denomination and the other may be convertible according to the will and skill of the pleader and I must record my dissent from all these judicial opinions which have been cited in which such a distinction is treated as having a vital bearing on the question.
29. This in our opinion is sufficient authority for us to negative the contention that the words of Section 80 of the Code must necessarily exclude suits founded on a contract. The nonperformance or the breach of a contract is equally an act as a tort and is within the meaning of the section. A suit founded on a mortgage may, with no very great ingenuity, be regarded as a suit in respect of an act, namely, the nonfulfilment of its condition as regards;he repayment of the mortgagee's dues. The word ' act' in our opinion has been used in the section in a generic sense, and as implying the cause of action for the suit. A difficulty as regards this interpretation may at first sight suggest itself. The section speaks of a notice being given to the public officer in respect of whose act the suit is to be instituted. It may be asked that if a public officer enters into a contract and he is succeeded by another, then on what principle would a notice be necessary if a suit is to be instituted against the first while no notice would be required on the second if the suit is to be brought against him It would seem somewhat strange that the former officer who entered into the contract and knew all about it would be protected, while the latter who may be entirely ignorant of it will remain unprotected. But the answer is that the suit will lie against the latter on the ground of his act, viz., of the breach or nonperformance on his part, and the law does require a notice for him. We are of opinion therefore that a notice on the common manager, i.e. defendant 1, was necessary under Section 80 of the Code, and such a notice not having been given the suit should have been dismissed.
30. On the question whether there is any real distinction meant by the words of the section between suits against the Secretary of State for India and as against public officers, we are of opinion that there is very little of it. The broad interpretation that we are disposed to put upon the words of the section would leave only this distinction between the two classes of suits, that whereas in the absence of a notice under Section 80 of the Code the Secretary of State for India cannot be made a defendant in any suit, no matter what its character may be, a public officer may without such a notice be a defendant in a suit in which no act of his is in question, but he is made a party for some reason or other. It may then be asked why, if no real distinction is meant, is there a difference in the wording. In our opinion the restrictive words were unnecessary and would be inapposite in the case of the Secretary of State for India: firstly, because the Secretary of State for India is a statutory body which has no capacity but an official one; and secondly, because ho is often responsible for the acts of other public bodies and officers.
31. The appellants' other contention, namely, that the suit could not be maintained without the permission of the Court by which the common manager was appointed is one in which we cannot agree. The position and duties of a. common manager have been often said to be analogous to those of a receiver (appointed by Court, and the protection afforded to the latter in the shape of a requirement as to permission has been extended to common managers in suits for accounts when they are to be instituted as against them: see Naba Kishore v. Atul Chandra [1913] 40 Cal. 150 Durga Prasanna v. Ishan Chandra [1916] 44 Cal. 800 and Beni Madhab v. Upendra Chandra (1). The rule of practice established in the cases just cited has a sound reason at its back, so far as suits for accounts are concerned. But we are not prepared to hold that such permission is necessary in all cases or that in the present case the suit was not maintainable without such permission. We agree with what has been said by this Court in the case of Sarat Chandra v. Raj Kumar, A. I. B. 1925 Cal. 334. In the view that we have taken of this question it is not necessary for us to consider a subsidiary contention that has been urged as regards the sufficiency of the order which is relied on as the Court's ?permission in the present case. Having regard to the wording of the order and the events that intervened between the order and the suit, we are not disposed to hold that the order on which reliance is thus placed was sufficient to meet the requirements.
32. In the mortgage bond, which, as already stated, was executed by the common manager, Estate No. 411, Taluk Raj Mohan Guha, as well as its subordinate tenures, i. e., sikmi and patni taluks, were included. One of these subordinate patni taluks is the tenure concerned in Appeal No. 225. The appellant in that appeal is a fractional cosharor in the patni which was created by the owners of the taluk in 1872 in respect of a 1 anna 14 gandas share therein. He is the owner of a l/5th share in the said patni interest. Besides the contentions dealt with in connexion with Appeal No. 220, five other contentions have been urged on his behalf and they will have to be examined now.
33. Three of these contentions are in our opinion of no substance. It has boon argued that the description of the patni as given in the mortgage bond is not sufficient, no sadar jama having been stated in respect of it nor other particulars having been specified. It has also been said that the appellant was not benefited by the loan that was taken. Further, it has been argued that some of the proprietors who had been made parties were dead, and no substitution having been made of their heirs the suit could not be maintained. We do not see why on the first and the second grounds the decree should be set aside. As regards the third ground, it is sufficient to say that the suit was laid with an order under Order 1, Rule 8 of the Code under which three of the defendants were to represent all the defendants excepting the first two defendants who were the principal defendants in the suit, and any death amongst the said defendants who were so represented could not affect the constitution of the suit.
34. The fourth ground taken is that the three defendants, 3, 4 and 5, who were made to represent the others (the appellant himself being defendant 3) were not competent to do so inasmuch as their interest was not the same as that of the others, some of them being owners of the taluk and others being holders of subordinate tenures. We cannot uphold this contention because it is not the interests of the defendants in the mortgaged properties that have to be regarded under Order 1, Rule 8. What the rule requires is that the interests of the defendants in the suit must be the same, and this condition has been fulfilled.
35. The fifth and last argument is that the appellant is not bound by the mortgage executed by the common manager, or to put it in a more comprehensive form that the common manager had no authority to effect a mortgage in respect of the patni. This argument resolves itself into two parts: firstly, that he could not in law be appointed common manager in respect of the taluk and of the patni; and secondly that in fact, he was not appointed as such. It should be stated here that although there were other patnis and shikmis which the co-owners of the taluk hold under it themselves, the patni in which the appellant was a cosharor was not one of that character because neither he nor his predecessors was ever a co-owner of the taluk.
36. Now the appointment of a common manager originated in a petition (Ex. A-l) made one Kalibar Ghose, on 11th January 1886, who was himself a co-owner of the taluk, in which it was stated that
as the mahals extended over a large area and there were many small cosharers, owing to disputes with regard to respective rights, remissness, mutual jealousy and indifference among the cosharers, great difficulty and inconvenience are being experienced with regard to realization of rent, management, and the conduct of litigation, and the interests of particular persons are being injuriously affected, and there is possibility of the same being more affected.
37. The names of the co-owners of the mahals are given in two schedules annexed to the petition, but in them neither the name of the appellant or his predecessor nor of his patni is given. On 12th January 1886 an order was made by the Judge that 'the co-owners be directed to appoint a common manager.' The co-owners having failed to appoint a common manager the Judge on 11th August 1886 appointed the petitioner .Kalibar Ghose as common manager on the ground that there were disputes with 'regard to the cosharers' rights in the mahals and that the petitioner was himself a 2 annas odd cosharer therein. It appears that the common manager so .appointed began to collect rents realizable from tenants in respect of the subordinate interests or at least some of them, and on that some of the patnidars objected. This objection however was overruled by an order dated 5th January 1881 on the following words:
This is a petition of review of an order dated 8th July last. It is out of time under Section 23 Criminal P.C., and moreover the patnidars who now object to full collection of rents by the common manager arc themselves fractional proprietors as well as patnidars whose rents are indirectly involved.
38. It therefore appears that there had been an order made on 8th July 1887 extending the powers of the common ?manager to the collection of rents from the tenants in respect of the patnis. But that order has not been produced and we do not know if it included the appellants' patni, it being remembered at the same time that it is nobody's case that the appellant's predecessors or the appellant himself had any share in the taluk. Kalibar Ghose having died, one Raj Mohan Guha, the common manager who subsequently executed the mortgage in suit was appointed in his place by an order made on 29th July 1896 in which it was recited that the common manager had been appointed as such in respect of the taluk and its subordinate shikmi taluks. In 1907 some amounts being due from the appellant's patni the common manager proposed to mortgage the same and permission was granted by the Judge. In the order passed to that effect on 2nd September 1907 it was stated that the appellant's father had raised no objection, but whether he had notice of the matter does not appear. From a petition Ex. 12 filed by the appellant's father on 2nd June 1918 it appears that by that time the patnidars, including himself, were all being represented by the common manager Kalibar Ghose who was collecting rents of the appellant's patni also and was paying to himself the dues of the taluk and making over the balance to the patnidars. Whether this was being done as a matter of arrangement for the sake of convenience only or whether there was any order appointing the common manager also a common manager in respect of the appellant's patni does not appear. In 1913 a suit was instituted being Suit No. 64 of that year by one Surendra Nath Roy for enforcement of the mortgage which the common manager had executed in respect of the appellant's patni on the strength of the permission obtained in 1907 as stated above. In that suit the appellant's father pleaded in his written statement (Ex. 11) thus:
There being no co-owner of the said patni taluk, the District Judge had no authority or jurisdiction to appoint a common manager with respect to the said taluk even under 'the provision of the Bengal Tenancy Act. The District Judge having appointed a common manager with respect to the said patni taluk without jurisdiction and the said manager having taken the same into his management without jurisdiction, the mortgage created cannot be valid, the sanction by the District Judge being also without jurisdiction.
39. This objection was overruled by the trial Court (Ex. 17) and also by the appellate Court (Ex. 17-a). The Subordinate Judge in the present case was of opinion that those decisions operate as res judicata so far as the present contention is concerned, but we are of opinion that this view is erroneous. At the same time the written statement (Ex. 11) is important, containing as it does a clear: admission on the part of the appellant's father that in point of fact there was an appointment of common manager in respect of the appellant's patni though the validity of that, appointment was being challenged. It was admitted therein in the clearest possible language that there was such an appointment and that the common manager so appointed had taken the patni under his management and was managing the same. In the judgment of the District Judge (Ex. 17-a) will be found reference to the fact that there were two separate orders which must have been in existence in those days by which the same person was appointed common manager, in one case of the taluk, and in the other of the subordinate patnis. It is perhaps not possible to lay one's finger on the said separate orders at this distance of time; but that there was in point of fact an order appointing a common manager in respect of the subordinate interests may not be unreasonably inferred from the circumstances set forth above and was, as already observed, clearly admitted in the written statement Ex. 11.
40. The question that remains to be considered is whether the appointment was without jurisdiction. Now Section 95. as it was under the Act of 1885, did not debar the appointment of a common manager in respect of an estate or share of an estate together with the tenure or tenures subordinate thereto, but in making an appointment in such a case the Judge had to call upon the parties to divide themselves into as many groups as there were properties held by them in common: See Fazel Ali v. Abdul Majid; [1887] 14 Oal. 659 and Zamor Saradindu v. Collector of Bangpur [1907] 11 C.W.N. 1143. The section has now been amended by the inclusion of the words or of lands held jointly between two or more estates or tenures as to the management thereof'. This amendment will make it possible, which it was not possible to do before, to appoint a common manager for only those portions of the estate or tenure which are affected by the dispute. But even under the law as it stood before the amendment it was possible to appoint a common manager not only in respect of an estate or of a tenure but also in respect of the joint lands of the estate or of its subordinate tenure. Of course, under ordinary circumstances two different common managers should have been appointed; but if that be the only objection it can hardly be regarded as making the appointment ultra vires of the statute. The circumstances all point to some sort of a consent having been given by the appellant's father to the appointment of one person in respect of the two kinds of interest, for such consent may well be inferred from long and continued acquiescence. The fact of this common manager having been appointed in respect of the separate interests once came up before this Court in 1914 when this Court; observed (Ex. 15-A):
A difficulty in this case arises from the fact that there is one common manager for the zamindari and the patni interest.. The interests, as in the present case, may be conflicting with one another. There should not be one common manager of both interests. A common manager in such a case is in opposition to Section 93 of the Act . .. It appears that the common manager was placed in direct possession of the properties without objection by the opposite party and therefore was. in a position to collect rents due by the raiyats to. the patnidars.
41. These observations have been relied on behalf of the appellant as laying down that the appointment was without jurisdiction. We are not prepared to say that they go so far. In our opinion it was the inexpediency of the course that was pointed out; if the appointment was considered as being without jurisdiction it would have been said so expressly. On another occasion in 1927 when the matter again came up before this Court, and it was attempted to be argued that the District Judge should have released and restored to the patnidars of this patni their interest by removal of the common, manager (Ex. 15), this Court said;
The petitioner's vakil tells me that there was a further prayer in the alternative that the patni which had been let out by Hara Prasanaa Chakravarti and others to one Raj Kumar Roy (i. e., the appellant's father), and which by some means or other passed into the hands of the common manager for the purposes of arrangement should be restored to the patnidars. As far as I can discover he (i.e., the District Judge) was not asked to consider the question as to whether the patni interest which was not being managed by the common manager should be restored to the patnidars.
42. This Court did not pronounce the appointment as having been made without jurisdiction.
43. We are of opinion that though the' origin of the appointment, in so far as the appellant's patni interest is concerned, is lost in obscurity, the fact of the appointment is admitted, and there is no just ground on which its validity may be successfully impugned.
44. The result is that, in our opinion, both the appeals should succeed. Setting aside the decree complained of we order that the suits be dismissed with costs in this Court as well as in the Courts below. One hearing fee only will be allowed in each of the Courts, to be divided between defendants 1 and 3 in equal halves.
Guha, J.
45. I agree.