Asifar Rahman vs Sufal Chandra Mullick

P.N. Mookerjee, J.—The only point, which arises in this appeal under Clause 15 of the Letters Patent, relates to the question whether, u/s 48F of the Bengal Tenancy Act, the consent of the landlord, required for the purpose of transfer of the unraiyat holding, would be satisfied by the consent of the ex-landlord, from whom the present landlord has got his interest by transfer or otherwise, or would require the consent of the present landlord during whose term the impugned transfer is effected.

In the instant case, the transfer in question was made at a time when the Respondent No. 1 was the landlord by purchase from the previous landlord Etahar. The document of tenancy of the under raiyati which is claimed by the Appellant by purchase from the previous under-raiyat, expressly contained a term enabling the under-raiyat to transfer the holding and that document was executed by the landlord Etahar. The contention raised on behalf of the Respondent No. 1, which succeeded before our learned brother R.N. Dutt, J., was that the consent, required u/s 48F, must be consent of the landlord at the time when the impugned transfer is made and the consent of the previous landlord, however wide and however much it may be contained in the document of lease creating the under raiyat would not be sufficient.

We are unable to accept this contention on a reading of Section 48F. Our learned brother, for the purpose, of coming to the above conclusion and upholding the Respondent No. l''s above contention, relied on the wording of Section 160(g),where for the particular purpose, relevant under that clause, permission in writing either of the present landlord or of his predecessor-in-title was expressly mentioned as sufficient and, according to our learned brother, having regard to those terms of Section 160, Clause (g), it must be taken that, where the Bengal Tenancy Act intended that the consent of the previous landlord would be sufficient, it expressly made provision to that effect.

In our view, that would not be a correct approach to the matter. It is perfectly clear, on a comparison of the languages of the two Sections 48F and 160(g),that the two provisions relate to two different circumstances and are intended to meet different cases, for which the necessary approaches must be different. In the first place, in Section 160(g),express permission in writing is necessary whereas u/s 48F it is merely consent which need not be in writing and may also be implied and need not be express. In the second place, having regard to the purpose for which Section 160, Clause (g) was enacted and the subject-matter, dealt with under that clause, it was necessary to speak of the predecessor expressly in the section inasmuch as, with regard to the said purpose, the existing landlord and his predecessor, stood under different positions. The clause was seeking to protect particular right and /or interest in the case of a sale of the holding and the first part of. the clause spoke of the present landlord in these terms: ''The landlord as whose instance the tenure or holding is sold''. If those words alone remained, it was impossible to conceive that they would include also his predecessor-in-interest inasmuch as the predecessor-in-interest would not satisfy and would not come within the expression ''the landlord at whose instance the tenure or holding was sold''. It is obvious, therefore, that if the predecessor''s permission or consent had to be included, it must be expressly mentioned. In Section 48F, no such difficulty arises and the word landlord'' may well be given its general meaning of landlords in general, that is, as including the present landlord and his predecessor or predecessors. In the second place, Clause (g) expressly requires express permission in writing and Section 48F merely consent. We have already noted this difference and the effect would be that, whereas for purposes of Clause (g) any consent, however much it has been given in writing in the document of lease, would not satisfy the test of express consent or permission in writing on the part of the subsequent landlord, u/s 48F, the consent required being merely consent, which need not be express but may be implied and need not be also in writing, the consent of the ex-landlord unless it is expressly or impliedly suggestive of the contrary, may well be taken to be the consent of the succeeding landlord, particularly when the succeeding landlord, being a purchaser or a person, otherwise succeeding to the interest of the said previous or ex-landlord, must be held to have taken the interest subject to the lease, created by his predecessor, which contained expressly and in writing the grantor landlord''s consent to the power of transfer of the lessee.

Upon the above view, we would hold that; in the instant case, the transfer to the present Appellant by the previous under-raiyat would be a valid transfer for purposes of Section 48Fand the test of requisite consent under that section must be deemed to be satisfied and, upon that view, we would allow this appeal, set aside the judgment and decree passed by our learned brother R. N. Dutt, J. and restore those of the Courts below.

There will be no order for costs either in this Court or in any of the Courts below.

Amiya Kumar Mookerji, J.

I agree.