Balaram Mahata and others vs Lahabat Mahata and another

Macpherson, J.—The question for decision in this second appeal is whether a person taking settlement from a landlord in Chota Nagpur of land surrendered by an occupancy raiyat after the latter has made ''a valid sale thereof under S. 46 (6), Chota Nagpur Tenancy Act, 1908, obtains title to the land settled so as to be entitled to eject the vendee.

On 15th November 1927, an occupancy raiyat in Manbhum of the Kurmi-Mahto tribe sold to his agnates residing in his own village his entire holding as it stood after a previous surrender of plot No. 1430 to the landlord. The sale is admittedly valid under the terms of Notification No. 310 of 1924 issued by the Local Government under the authority of S. 46 (6), Chota Nagpur Tenancy Act, 1908. Shortly after the sale the raiyat surrendered to the landlord the occupancy holding which he had thus sold, and the landlord settled the whole of the original holding, including plot No. 1430, with the plaintiffs, the deeds of surrender and of new settlement being both registered on 1st March 1928. Failing to obtain possession of the holding, the plaintiffs sued for declaration of right to the lands settled with them, excluding plot No. 1430, and for recovery of possession from the purchasers, and were successful in both the Curtis below, whereupon the vendees have preferred the present second appeal in respect of the land in suit. The landlord defendant has not appeared at any stage.

On behalf of the appellants the contention Substantially is that after the sale to them the raiyat had nothing to surrender to the landlord who therefore had nothing to settle with the plaintiffs except plot No. 1430. On behalf of the plaintiffs-respondents, the decision is supported on the view which found favour in the Courts below, that the sale, in spite of being valid under S. 46 (6), was not binding on the landlord since it was not made with his consent in writing and therefore there was nothing to prevent the landlord from accepting the surrender by the vendor-raiyat and from making statement with the plaintiff''s as S. 72 (4) provides. Support is claimed for the contention from the decision of a Single judge of this Court in Mohammad Hossain v. Mangilal Jaipuria, 1932 Pat 218 = 138 IC 97, but the view there expressed was obiter since the case was actually decided on compromise. The decision mainly depends upon the construction of S. 46, Chota Nagpur Tenancy Act, 1908. The first two sub-sections are:

(1) No transfer by a raiyat of his right in his holding or any portion thereof,

(a) by mortgage or lease, for any period, expressed or implied which exceeds or might in any possible event exceed five years, or

(b) by sale, gift or any other contract or agreement, shall be valid to any extent.

(2) No transfer by a raiyat of his right in his holding or any portion thereof shall be binding on the landlord, unless it is made with his consent in writing.

Sub-Section (3) provides that no transfer in contravention of Sub-S. (1)'' should be registered or be in any way recognised by the Courts as valid., Sub-S. (4) empowers the Deputy Commissioner to replace in possession a raiyat who has made a transfer under S. 46, that is to say, one of the transfers for a period which are legally admissible to wit, a mortgage or lease for a period not exceeding five years or a bhugutbandha for a period not exceeding seven years, if the raiyat applies within three years of the expiration of the period of the transfer. Sub-S. (5) saves transfers not otherwise invalid made bona fide before 1903 and Sub-S. (6), so far as material, authorizes the Local Government by rules to declare that any specified class or classes of transfer (not being transfer by an aboriginal raiyat to a non-aboriginal transferee) may be validly made by a raiyat of such tribe,........of such class, (S. 4) in such area or areas, and subject to such restrictions........as may be specified: and thereupon nothing in Sub-Ss. (1),. (3) and (4) shall affect the validity of any such transfer so made by such raiyat, after the date of publication of the rules........

The first five Sub-Ss. are based upon the Act of 1903 amending Bengal. Act (1 of 1879) which was then in force in Chota Nagpur except Manbhum. For reasons of public policy restrictions were thereby placed upon transfers by radiates such as had till then been freely entered into without the consent of the landlord. Under Sub-S. (1) all absolute disposals of a holding or a portion thereof, by contract or agreement, including sale or gift, are declared not to be valid to any extent but certain temporary leases and mortgages are saved. Sub-S. (2) declares such transfer not to be binding on the landlord unless made with his consent in writing. Manifestly the temporary transfers excepted from invalidity under that provision are meant, since there could be no point in enacting that a transfer declared not to be valid to any extent and directed not to be registered or to be treated as valid by any Court, should not be binding on a particular person. The legislature merely signified that temporary transfers of part of his raiyati interest though still valid against the raiyat himself, were not to be binding upon the landlord unless made with the consent in writing of the landlord. This view obtains confirmation from Sub-S. (4) which, as ''indicated above, also refers to the transfers for a period excepted from invalidity under the section. It is on expiration of the period of a transfer for a period valid against the maker himself that he can on application within three years obtain from the Deputy Commissioner, reinstatement in his holding or portion thereof so transferred.

The Chota Nagpur Tenancy Act, 1908, was in 1909 extended to Manbhum where all manner of transfers had hitherto been freely made without the consent of the landlord and where a transfer by sale of a complete holding (at least) had bound him. Sub-S. (6) was introduced by the amending Act of 1920. Under this new provision read with the rules contained in the notification of the Local Government the transfer under discussion is "validly made" though, apart from the new provision, it would under Sub-S. (1) not have been "valid to any extent." Sub-S. (6) while seminally enacting that Sub-Ss. (1), (3) and (4) shall not affect the validity of the transfer, fails to mention Sub-S. (2) and it is accordingly urged that that provision must be applicable to transfers thereunder. But as indicated above Sub-S. (2) was never applicable to any but the temporary transfers which are not rendered invalid by Sub-S. (1), and it could hardly have been intended to hiring other transfers which are expressly declared valid, under Sub-S. (2) by implication and without direct enactment to that effect. Indeed, Sub-S. (2) does not refer to validly at all, as Sub-Ss. (1), (3) and (4) do, Sub-Ss. (1) and (3) in terms and Sub-S. (4) by implication. Actually the amendment of 1920 leaves Sub-S. (2) undisturbed: it covers the same ground as before-- that is to say the temporary transfers not declared in Sub-S. (1) to be not valid to any extent. Such temporary transfers were not in contravention of Sub-S. (1) whereas it is only with transfers which were, apart from it, in contravention of Sub-S. (1) that Sub-S. (6) is concerned.

It cannot be contended that this result so far as the landlord is concerned, at all conflicts with the equity which the Courts will attribute to legislation or the acts of the executive Government under the authorization of the legislature. The legislative restrictions on �ales and other transfers of a raiyati holding were due solely to considerations of public policy, that is to say, in the present instance, of the real interest of the raiyat. An indirect result not contemplated was that in certain instances (comparatively few, perhaps) of attempted evasion the landlord found himself enjoying an unearned and unanticipated advantage. As direct sale no longer passed any title, the raiyat secured a private purchaser and then surrendered to the landlord, dividing with this terries gardens the sale-price of the holding on the understanding that the latter then settled it with the private purchaser. The landlord could have no grievance when the Local Government found it consistent with the public policy of preserving the raiyat from becoming a landless serf to avail itself of the authorization of the legislature to re-transfer the whole saleable value of certain holding''s to the raiyat morally the landlord''s position could only be one of thankfulness that he had so long enjoyed a windfall. It is incredible that the legislature could contemplate a permanent endowment of the landlord in this regard.

But one may go further in the present case. Manifestly the raiyat had after the sale to the appellants which is by statute valid, no property at all in the holding sold by him. There was therefore as the appellants contend, nothing which he could surrender and there was nothing of which to accept surrender so that the landlord had nothing to settle with the plaintiffs except plot No. 1430 which had previous to the sale been validly surrendered to him. The cases cited on behalf of the respondents, to wit, Ram Ornon v. Doman Kalal, 1924 Pat 100 = 75 IC 209 = 2 Pat 898 and Kishuni Kuar v. Andu Mahton, 1929 Pat 734 = 120 IC 300 are of no assistance to them. The first not only related to a mortgage, but the decision therein was really based on the substantial ground that the mortgagee could not question the surrender after he had held the mortgaged land for the full period of his mortgage. No doubt the learned Judge remarked that from the absence of a provision similar to S. 85 (6), Bengal Tenancy Act, it follows:

that in spite of a prior sale or mortgage by a raiyat, lie is free to exercise his right of surrender of the holding in favour of the landlord, for under Cl. (2), S. 46, no transfer by a raiyat of his right in his holding or any portion thereof is binding on the landlord unless it is made with his consent in writing,

but the question of a sale was not under consideration, still less the question of a sale "validly made" under the, statute, since the only sale which could arise prior to the notification of 1924 was one not "valid to any extent." The second case cited has no bearing since it is merely stated at one place that it was not necessary to consider whether the landlord could question the validity of a testamentary disposition of an occupancy holding and at another place that the question did not in that case concern the Court whether such a disposition in favour of others than the natural heirs would bind the landlord.

Reference has been confidently made on behalf of the appellants to S. 23-A also inserted by the amending Act of 1920, which enacts that when an occupancy holding or any portion thereof is transferred in any way authorised by law by succession, inheritance or sale, the transferee or his success or-in-title may cause the transfer to be registered in the office of the landlord to whom the rent of the holding or portion thereof, as the case may be, is payable, and the landlord shall, in the absence of sufficient reason to the contrary, allow the registration of all such transfers, and shall not he entitled to levy any registration fee. This provision is however perhaps not in itself conclusive since while a sale under S. 46 (6) is certainly one authorised by law, there are other instances of such sales, for example under the provisions of S. 47 and of S. 49. The decision must rest upon the considerations already set out.

In my opinion the question for decision must for the reason given above be answered in the negative. S. 46 (2) is not applicable. The landlord secures nothing by accepting the surrender of his holding by a raiyat who has made a valid sale of it under S. 46 (6) and so has nothing to surrender. The landlord therefore confers no title on the person with whom he settles such a holding. In this instance the plaintiffs obtained no title by the settlement from the landlord except in respect of the tenancy of plot No. 1430 which had previous to the sale been validly surrendered to him.

I would allow this appeal with costs and dismiss the suit, and I would direct that the present appellants do receive from the respondents their costs of both the Courts below and that the latter bear their own costs throughout.

James, J.

I agree.

Varma, J.

I agree.