Ajodhya Prasad Singh vs Aminuddin Ahmad Asghar Yusuf and others

Fazl Ali, J.—This appeal arises out of a suit instituted by the plaintiff-appellant or recovery of rent for the years 1333 to 1336 in respect of a mukarrari tenure. The trial Court decreed the suit against all the defendants but the learned District Judge on appeal modified the decree of the Munsif by decreeing the suit only against defendant 4. He passed a decree against defendant 4 only because before the period for which the rent is said to be due the tenant-defendants had executed two ekrarnamas under which it was made clear that only defendant 4 was to be deemed to be the mukarraridar and that he was solely liable for payment of rent for the tenure. Now, it is not denied that the tenure is transferable; but it is said that the ekrarnamas in question which have been described somewhat loosely by the learned District Judge as deeds of relinquishment do not create title and do not amount to a deed of transfer as contemplated in S. 12, Ben. Ten. Act. That section states that a transfer of a permanent tenure by sale, gift or mortgage (other than a transfer by sale in execution of a decree, or by summary sale under any law relating to patni or other tenures) can be made only by a registered instrument. It is conceded that the ekrarnamas in question are registered instruments, but it is said that they were not registered either as deeds of conveyance or deeds of gift. It is also contended that the landlord''s fee was not paid in this case though it is required to be paid under S. 12 in cases in which the tenure is transferred in the manner indicated in the section.

The learned District Judge has overcome these objections by relying on Hemendra Nath Mukherji v. Kumar Nath Roy, (1908) 12 CWN 478 in which a deed of relinquishment was construed to be a deed of conveyance, notwithstanding the fact that it was not stamped with an ad valorem stamp but only as a deed of release and notwithstanding the fact that the landlord''s fee was not paid. This decision is of unquestionable authority and it was approved of by the Judicial Committee of the Privy Council in Surapati Roy v. Ram Narayan Mukherji, 1923 PC 88 = 73 IC 193 = 50 IA 155 = 50 Cal 680 (PC). The only question is whether in the present case the ekrarnamas in question can be held to amount to a transfer. Now, these ekrarnamas recite that the executants thereof without any compulsion or duress disclaim and relinquish their own mukarrari title in respect of their shares in the tenure. They also recite that from a particular date the defendant 4 was the owner of the entire mukarrari tenure and that he and his successor in interest were only liable to pay the rent of the tenure. The substance of the deeds therefore is that the executants thereof other than defendant 4 have ceased to be interested in the tenure and that the entire tenure has vested in defendant 4. Such a deed must be regarded as a deed of transfer in essence and might well be construed to be a deed of gift, inasmuch as no valuable consideration is mentioned in the deed. The parties are, as appears from the cause-title, closely related and the motives for conveying the property in gift need not be too minutely scrutinized. In these circumstances I am inclined to think that the learned District Judge was right in deciding the case upon the authority of Hemendra Nath Mukherji v. Kumar Nath Roy, (1908) 12 CWN 478 and I would therefore dismiss this appeal with costs to respondents 3, 4 and 6.

Luby, J.

I agree.