Ross, J.In mauza Anantpur Kukaria, tauzi No. il6, Jagarnath Choudhury had a snare of 9-annas 11-kauris 4-bauris 12-phauris, Birjan Chaudhury had 4 annas 11-dams 4 kauris 5-bauris 8 phauris, Baijnath Chaudhury had 1-anna 12-dams 4-kauris ]0-bauris, making a total of 15-annas 4-dams. The remaining 16-dams belonged to Dodraj Mahton Keshwar Mahton and Mussammat Keola Kuer, the last named having a 3-dams share. On the 2nd October 1900, Birjan Chaudhury executed an ijara in respect of 1-anna 10-dams of his share in consideration of Rs. 4,000 in favour of one Ra ha Kishun. The plaintiff has acquired this ijara interest. The share of 15-annas 4-dams was sold in execution of a decree for money to one Pachkouri Lal who defaulted in payment of the Government revenue whereupon the share was brought to sale and purchased by Jung Lal, Khaimddin and Hulas Behari, who in turn sold privately to Mukhund Lal, Janki Das and Wilayeti Begam in 1916. In the meantime, in 1914, Dodraj Mahton and Keshwar Mahton had applied for partition of their 13 dams share and this share became tauzi No. 14394, while the remaining 15-annas 7-dams share became tauzi No. 13039. The partition took place on the 2nd March 1917, and possession was delivered on the 1st June of that year. On the 7th September, 1917, Jinki Das and Wilayeti Begam sold their interest to one Leaqat Hossain. Mukhund Lal and Leaqat Hossain defaulted in payment of the September kist of the Government revenue in 1917 and tauzi No. 12039 was sold on the 7th January, 1918, for arrears of Government revenue and purchased by one Mohiuddin whose co-sharers were Jung Bahadur and Hafiz. The effect of the sale of tauzi No. 12039 was to annul the plaintiffs encumbrance. He, therefore, brought this suit on the 22nd March, 1919, to set aside the sale as fraudulent and also for a decree for Rs. 4,000 against such of the defendants as might be found liable for the same. Amongst the defendants, defendants 9 to 15 were descendants, direct or collateral, of the original mortgagor. The Subordinate Judge dismissed the suit and the plaintiff appeals.

2. Three points were taken by the learned Counsel for the appellant. In the first place, it was contended that the revenue sale was brought about by fraud; in the second place that in tauzi No. 216 separate accounts had been opened (1) for 9-annas and odd share of Jagarnath Chaudhury; (2) for the 6-atnas and odd sharerjan and Baijnath Chaudhury; and (3) an ijmali account for the remaining share; that the partition did not affect these separate accounts and in fact at the time of the revenue-sale in 1918 separate accounts were in existence. Consequently u/s 13 of the Bengal Land Revenue Sales Act of 1859 only the separate account in default should have been sold and the encumbrance has consequently not been cancelled. And in the third place, that in any case there should be a decree against defendants 9 to 15 for Rs. 4,000.

3. The case of fraud was not argued very seriously. The allegation is that Mohiuddin was farzidar of Mukhund and (sic) and that these persons being aware of the encumbered nature of the property intentionally defaulted in order that the encumbrances might be got rid of by the sale for arrears of Government revenue. The only substantial basis for this contention is a connection between Mohiuddin and Leaqat through Latif, the husband of Wilayeti Begam; but this in itself is obviously not sufficient.

4. [His Lordship then discussed the evidence and proceeded:]

5. In my opinion, therefore, no case of fraud in connection with the revenue-sale has been established.

6. The main argument is the argument relating to separate accounts. The argument is ingenious and although Mr. Hasan Imam earnestly contended that it is to be found in the plaint and in the grounds of appeal to the Commissioner, after a careful persual of these documents, I have been unable to discover it.

7. Paragraph 28 of the plaint says:

That separate accounts Nos. 1 and 2 had been opened for 15-annas and 4-dams share only, and as a matter of fact the share which had been sold for the arrears of land-revenue was 15-annas and 4-dams only.

8. This is the principal reference in the plaint to the separate accounts and the point there taken is entirely different. In the grounds of appeal to the Commissioner it is clearly contemplated, although it is not expressly stated, in the first ground, that the separate accounts had been closed. The point is an entirely new point and the result is that there is very little evidence to go upon.

9. With regard to the statement of the law that partition does not destory the separate accounts, there is nothing in the statute to support it and no authority was cited for the proposition. The statute law which was referred to was Sections 15 and 16 of the Estates Partition Act. Section 15 has no application because the arrears in the present case accrued after the partition. Section i6 has no application either, for the same reason and also because the present sale is not a sale of a share but the sale of an entire estate. Section 74A of the Land Registration Act contemplates the closing of a separate account by the Collector when the state of things no longer represents existing facts. The argument is that even after the partition the land-revenue for which each of these proprietors was liable remained the same. That may be so but the shares were in fact different. Thus whereas before the partition Mussammat Keola had 3-dams in the whole estate, after partition she had a larger interest in a smaller property. Sections 94 and 95 of the Estates Partition Act would seem to imply that the separte accounts can have no further existence after a partition, because Section 94 provides for the separte liability of the separate estate for the amount of land revenue specified in the notice to be issued under that Section and requires the proprietor to enter into a separate engagement for the payment of such land-revenue; and Section 95 enacts that from the date of the notice each separate estate shall be separately liable for the amount of land-revenue assessed upon it under the Act. If any further protection is required by way of separate account, it would seem that a separate account must be freshly opened. And as far as the facts can be discovered, that is what happened in the present case.

10. All that Mr. Hasan Imam had to rely upon was Exhibit 15, Register D, in respect of mauza Rukhai. Now it is admitted that in tauzi No. 216 separate account No. 1 was the account of Jagarnath Chaudhury, separate account No. 2 was the account of Birjan and Baijnath while the remainder was an ijmali account. That remainder included the share of Keola Kuer. After the partition we find a different state of affairs. Exhibit 15 shows that separate account No. 1 was the account of Keola Kuer where as the ijamaii account was the account of the remaining proprietors of thel6annas. Moreover it appears that this separate account No 1 of Keola Kuer was opened in case No. 254 of 1917-18, evidently a fresh proceeding altogether. It is true that this document, Exhibit 15. does not show when that separate account was opened. But there is no reason to suppose that it was opened before the sale for the arrears of the September kist. So far as Exhibit 15 goes, the account might have been opened between the date of the default and the date of the sale; and" the ordinary would favour this view, because if there had been a separate account in existence, presumably the Collector would have acted according to the provisions of Section 13 of the Sale Law. I find, therefore, no illegality in the sale of the entire estate for the arrears of the September kist of 1917.

11. The only other point which remains to be considered is the claim against defendants 9 to 15. This claim is based upon the terms of the ijara. That instrument is a mortgage. There is a loan, and a security for the loan contained in the following terms:

If I fail to make payment of the entire zarpeshgi to the ijardar by the end of Jeth of of 1314, Fasli, then until repayment of the entire zarpeshgi this ijara transaction shall continue to hold good with all the terms laid down above.

12. The mortgagor covenants as follows:

If the whole or portion of the leasehold property be sold at auction by the Civil Court or the Collectorate on account of arrears of land-revenue, road an public works cesses or of any other Government demand, arising out of default an my part or the part of any of my co-sharers, or for any other reason, and if the ijaradar be thrown out of possession of the leasehold property due to any act on the part of me, the executant, then the ijaradar shall be at full liberty to realize the full amount of zarpeshgi together with interest at 1 per cent, per mensem out of the surplus sale proceeds of the leasehold property or from the other nami and benami properties, or from the person of me, the executant to which I or my heirs and representatives shall not take any objeotion whatsoever.

13. The learned Counsel for the appellant claims that under this covenant (sic) titled to a decree for the principal sum of Rs. 4,000 with interest against the representatives of the mortgagor Birjan Chaudhury. Defendant No. 9 is the son and defendants 13 to 15 are the grandsons of Birjan Chaudhury. Defendants 10 to 12 are the grandsons of Baijnath Chaudhuiy. The plaint does not allege that Baijnath and Birjan were joint but, on the contrary, specifies their shares in the property and therefore they were pre-sun ably separate. The liability would, therefore, be confined to the sons and grandsons of Birjan Various objections to this liability were urged by the learned Vakil for these respondents First it was suggested that the cause of action arose in 1907 when the loan became repayable and that the suit was barrel by time. But by the terms of the ijara the money btcarne repayable in Jeth 1314 and every subsequent Jeth. and the cause of action under a usufructuary mortgage would arise only on dispossession. Secondly, it was said that after the interest of Birjs n Chaudhury had been sold by the Civil Court on a date not specified in the plaint the covenants of the ijara became impossible of performance and, therefore, these respondents are protected by Section 56 of the Contract Act. Section 56 however, has no application to such circumstances as these where the impossibility if any, is due to the default of the contracting party himself. Thirdly, it was said that u/s 73 of the Transfer of Property Act, the plaintiff had a charge upon the surplus sale-proceeds after the sale for arrears of Government revenue. This is true and he might have followed the surplus sale proceeds of the property. But he was not bound to do so and the existence of this statutory charge is no bar to his seeking a decree against the successors of Birjan Chaudhury. The decree, however, must be limited to the assets of. Birjan Chaudhury in the hands of tluse defendants. Finally it was said that there must be an account of the rent of Rs. 75 a year reserved in the ijara. and that unless it is proved by the plaintiff that this rent was regularly paid, he is not entitled to the full sum of Rs. 4,000 But this question does not arise on the pleadings. Paragraph 10 of the written statement of the defendants 9 and 10 says:

The plaintiff has no right to obtain a decree for the ijara mousy, inasmuch as he has failed to make any allegation about the payment of the rent reserved, and to produce any account for the period of ijara.

14. There is no allegation that the rent was not paid This question was not put in issue and no evidence was given about it and the point is not open to the respondents.

15. There must, therefore, be a decree against respondents 9 and 13 to 13 for a sum of Rs. 4,000 with interest at 1 percent, per menseti from the 28th March, 1918, until the date of the decree; the amount of the decree to carry future interest at 6 per cent, per annum and to be realizable only from,, the assets of Birjan Chaudhury, the mortgagor, which have come to the hands of these defendants. To this extent the appeal is decreed with ensts against defendants 9 and 13 to 15 and is dismissed against the other defendants, with costs to defendants 1, 2 and 3. The costs will be in proportion to success.

Das, J.

16. I agree.