Bario Santhal and Others vs Fakir Santhal

Bucknill, J.—This was a second appeal from a judgment of the District Judge of Manbbum, dated the 14th April, 1921, by which he reversed a decision of the Munsif of Chaibassa, dated the 13th November of the preceding year. The point which is now brought up before ma is a vary simple one, and, so far as I can sea, appears to be substantially covered by authority. The first three plaintiffs (who are the appellants) ware three sons of one Jhujhar Santhal and the fourth plaintiff was She son of another but deceased son of the same man. They, according to their plaint, had two cousins, one named Gopal and the other Singar Santhal. Soma years ago there was a partition between them of their family property and the land in respect of which this litigation has bean instituted foil within the portion which was allotted on the partition to these cousins of the plaintiffs. Now, it is alleged that both these cousins of the plaintiffs (Gopal and Signar Santhal), have died without heirs, and the plaintiffs now claim that, that being so, they are in some way or another entitled to inherit the property of their deceased relatives. They state in their plaint that the defendant, who, it should be mentioned, is the landlord of the property which the plaintiffs'' deceased cousins used to hold as raiyats, has dispossessed or rather has unjustly cultivated the properties in dispute the defendant, however, himself in his written statement points out that as a matter of fact there had bean a surrender by the plaintiffs'' cousins to him of their holding; which it may be added, was a holding which is amenable to the provisions of the Chota Nagpur Tenancy Act, 1908 the plaintiffs in answer to this have endeavoured to point out that as a matter of fact there was no real surrender but that what had happened had been that their cousins had or purported to have given back their holding to the landlord (the defendant} on account partially of a very small amount of rant which was due to the defendant from them, but largely on account of money which had, so it was stated, been lent by the defendant to their cousins. Now, the Munsif come to the conclusion that the defendant, having admitted that the two cousins of the plaintiffs had surrendered the lands in suit in liquidation not only of arrears of rant but also of certain debts due to him which were alleged to have baa a covered by a hand note, could not defend the transaction in its main elements because it took place in contravention of the provisions of Section 46 of the Chota Nagpur Tenancy Act. He says "It has been admitted by "the defendant is his, deposition that "Gopal and Singar surrendered the suit" lands is liquidation of their debts alleged "to have been covered by a hand-note and "for the decretal amount for arrears of rent. But the arrears of rent amounted "to only Rs. 47, and odd annas and this "amount was also subsequently deposited "in Court by the plaintiffs. The evidence "available goes to show that hid this been "the only debt, it would not have bean "necessary at all for the plaintiffs to "relinquish the lauds. It is obvious "therefore that the relinquishment was "tendered to the defendant not as Pradhan "but as money-lender and the entire transaction is a de facto sale only covered by, "a camouflage of relinquishment. In "accordance with the provisions of " Section 46 of the Chota Nagpur Tenancy "Act sale of a raiyati holding is strictly "prohibited the suit lands are admittedly raiyati lands of Gopal and Singar. "Accordingly the Istifanama must be "regarded us invalid in law." He therefore decreed the suit in favour of the plaintiffs.

The learned District Judge, however, basing his view upon, certain decisions which have been given both in this and in other Courts, comes to the conclusion that the view which the Munsif has taken is not in law justified he says "The defendant''s case is that Gopal and Singar had mortgaged their holding to him as they had incurred debts to the defendant amounting to "Rs. 510 to defray the "expenses of the partition suit and that "afterwards they relinquished the schedule (kha) to liquidate this debt as "well as a decree for arrears of rent "obtained by the defendant. The Munsif "held that this so-called relinquishment "was really sale and was therefore void "according to Section 46 of the Chota "Nagpur Tenancy Act. The lower Court "holds this view as the consideration for "the surrender was liquidation of the hand-note as well as the arrears of rant. "But Section 46 does not apply to the "present case which was a surrender in "favour of the landlord: vide 3 P.L.J. 90. Section 46 of the Chota Nagpur Tenancy Act puts no bar on surrender to "the landlord the transaction was not "a sale in my opinion. The lower Court, "in drawing a distinction which does not "exist in the law between surrender to the "Pradhan qua Piadhan and qua money-lender. The plaintiffs cannot therefore "succeed on this point, so the suit must "fail."

This is not the first occasion within the last few weeks that this point has, in a somewhat slightly different form, been brought to my attention. In a previous case, in which I held that in my view I must follow the decisions to which the District Judge has referred and that in another case, Jairam v. Gopikisan (1918) 14 N.L.R. 125. I have already expressed the opinion that it is possible that this may conceivably result in soma form of evasion being effected against the intention of the Chota Nagpur Tenancy Act. The decisions, however, seem to be clear that it is open to a tenant to give back his holding to or to let his landlord take his holding (i.e., surrender it) for a pecuniary consideration. In the case of Trilochan Pande v. Dinobandhu Pande (1918) 3 Pat. L.J. 88 decided in this Court, Mullick and Atkinson, JJ., state that a surrender is not a transfer within the meaning of Section 46 of the Central Provinces Tenancy Act, 1898. In that Act the language of the Section is very much the same as that utilized in the Chota Nagpur Tenancy Act. In the case of Abdul Majid v. Haricharan Haider 53 Ind.Cas. 17, Walmsley and Huda, JJ., held that a surrender, though for consideration by a tenant is operative and that the provisions of the Transfer of Property Act do not require any registered instrument to evidence the surrender. The most important case, however, (and which is more important than these others) is that of Jairam v. Gopikisan (1918) 14 N.L.R. 125. It was there held that a surrender of an occupancy holding for a consideration is not a transfer in contravention of the provisions of Section 46 of the Chota Nagpur Tenancy Act, 1908.

I think that in view of these findings it would be extremely difficult for me to contemplate coming to any other view than that which has been held by those learned Judges. Indeed, in the case which I had to decide the other day, Nagru Kumhar v. Chukunath Mandal S.A. 1030 the position want in my opinion somewhat further than that which obtains in this case; for in that case in which a similar decision was arrived at by the lower appellate Court to that which has been arrived at in this case, the facts were that a third party had paid a consideration to a tenant as a result of which the tenant had agreed with the landlord to surrender his holding whilst the landlord had agreed to resettle the property with the person who had given the consideration to the outgoing tenant. It was, however, very difficult to sea how this circuitous arrangement could in law be regarded as definitely illegal.

In my opinion, therefore, this appeal must be dismissed with costs and the judgment of the District Judge upheld.