Abhimanyu Halder vs Tarani Sen Halder

P.N. Mookerjee, J.—The facts leading up to this appeal lie within a short compass and they may be briefly stated as follows:

The Appellants, who were the Plaintiffs in the trial court, claimed to have purchased the suit properties from pro forma Defendant No. 5 Bakyamoni, by a registered kobala, ex. 3, sometime in Ashar, 1354 B.S. It appears, however, that Bakyamoni''s husband, Rai Charan had, during his life time, sold the said properties to Defendant No. 1 in the benami of the latter''s sons, Defendant Nos. 2 to 4, sometime in 1350 B.S. After Rai Charan''s death, Bakyamoni. as his heir and legal representative, applied for restoration of the said properties u/s 4 of the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944. (Ben. v. of 1944.) That application was eventually allowed and she was directed to pay back the sale price, etc. (Rs. 49-4) in certain instalments, ranging from 1354 B.S. to 1358 B.S. For payment of the outstanding balance of these instalments and for other purposes, she sold the suit properties to the present Plaintiffs in Ashar 1354 B.S. Before the sale, Bakyamoni had paid Rs. 29-12 out of the above sum of Rs. 49-4 and only a small balance (Rs. 19-8) was outstanding on the date of sale which was to be paid by the vendees (the present Plaintiffs) out of the consideration money of the kobala (ex. 3). This the Plaintiffs sent to Defendant No. 1 by money order on March 20, 1948, but it was refused and, thereafter, the Defendants threatened to dispossess the Plaintiffs which necessitated the institution of the present suit for declaration of the Plaintiffs'' title and confirmation of their possession and, the suit having been dismissed by the two courts below, the present second appeal has been filed by the Plaintiffs.

The courts below have held that, in view of Section 7 of the Bengal Alienation of Agricultural Land (Temporary Provisions) Act. 1944, the Plaintiffs'' kobala was invalid in law and the vendees thereunder, namely, the present Plaintiffs, acquired no title under their said purchase. In that view, they have dismissed the Plaintiffs'' suit. It is necessary, therefore, to consider what, in law, is the true effect of that section.

The case is singularly an unfortunate one and the plain construction of the statute is obviously leading to a great injustice. I have, therefore, tried to find out whether it is possible to prevent this manifest injustice by a justifiable interpretation of the statute in question but the statutory language refuses to yield and possibly justice is really being defeated because of an inadvertent omission on the part of the legislature. Modern legislation in this country is replete with glaring instances of serious errors, omissions and patent injustice and the present case is possibly an illustration of the same.

The section, in its relevant part, runs as follows:

A proprietor, tenure-holder, raiyat or under-raiyat to whom any agricultural land has been restored by an order under Sub-section (1) of Section 4 shall not as long as there remains unpaid any sum payable by such proprietor, tenure-holder raiyat or under-raiyat, as the case may be, under the order made under that subsection, alienate by sale....such land or any portion thereof and, notwithstanding anything contained in any other law for the time being in force, any alienation.... so made shall be void and of no effect.

There is no dispute that, at the time of the Plaintiffs'' kobala, a sum of Rs. 19-8 out of the total sum of Rs. 49-4, payable under the order of restoration u/s 4 of the Act, was outstanding. The kobala (ex. 3) was, therefore, void and it has no effect under the section first quoted, namely, Section 7 of the Act. It is true that the vendees undertook the liability and were ready to discharge it immediately, but that cannot take the kobala (ex. 3) out of the mischief of express language of the section. This may be unfortunate, as I have already said, and even unjust, but the language of the statute is too clear to admit of any other interpretation. There is a significant and noticeable departure in the language of this section (Section 7) from Section 64 of the CPC in this respect and, in the above premises, with every inclination to hold in favour of the Plaintiffs-Appellants, I find the statutory language an insurmountable obstacle. Why notwithstanding the well-known Section 64 of the CPC this different language would be used here by the legislature is not quite intelligible unless the intention was materially different. Similar language is also to be found in Section 37A(9) of the Bengal Agricultural Debtors Act, 1936. That may well indicate a different policy. If the position be really otherwise, it is for the legislature to make it clear by use of appropriate language. There is certainly no dearth of it in the English vocabulary and the task is also quite simple.

In the above view of the matter, I agree with the two courts below in their constraction of the relevant Section 7 and dismiss the present appeal.

There will, however, be no order for costs either in this Court or in any of the two courts below.

Prayer for leave to appeal under Clause 15 of the Letters Patent is made and it is refused.

In view of the order, passed in the appeal, the Appellants'' alternative revisional application u/s 115 of the CPC must fail and it is dismissed without costs.