Brindaban Prasad vs Banku Bihari Mitra and others

Macpherson, J.—This second appeal by the defendant arises out of a rent suit brought by two plaintiffs, the first being Sailendra Nath Bose as trustee of the estate of Banko Behari Mitra and the second being Biman Bihari Mitra brother of Banko Bihari Mitra both of whom stood recorded in the land registration register.

During the hearing Banko Bihari Mitra and his wife were substituted for the first plaintiff, whereupon the defendant filed an additional written statement claiming that as their names had not been entered in the land registration register, he was not bound to pay them rent. The Courts below decreed the suit (with a reduction of the damages) but giving effect to defendant''s objection so far as to direct that the plaintiffs should not execute the decree without producing a copy of register D showing that the names of Banko Bihari and his wife had been duly entered. The position of plaintiff No. 2 was not considered separately. In second appeal the main argument is that no decree should have been passed by reason of the provisions of S. 78. Land Registration Act, 1376. That enactment reads:

No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate of revenue-free property in respect of which he is required by this act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have bean registered under this Act.

Mr. Sarju Prasad relies upon the decision of this Court in Umeshwardhari Singh v. Neman Singh, 1923 Pat 410 = 110 IC 469 = 7 Pat 690, as interpreted in Sharafat Karim v. Harangi Singh, 1931 Pat 417 = 134 IC 624 = 11 Pat 30. But those cases do not really touch the point under discussion. In Umeshwardhari Singh v. Neman Singh, 1923 Pat 410 = 110 IC 469 = 7 Pat 690 the plaintiff had brought the suit before he had been registered and not only the suit but also the appeal against the decision of the trial Court had been dismissed. While his second appeal was pending, the plaintiff''s name was registered and it was then held that the Court could take notice of the fact of registration and accordingly S. 78 was no longer a bar to a decree being passed in his favour (though he should not get damages or any costs and the defendants should get from him their costs of the first two Courts). In that case Mullick, J., remarked that S. 78 did not prevent a suit from being filed by the unregistered proprietor, manager or mortgagee, but that the Court should not order recovery of rent till registration was effected. It was in reliance on this remark that the Courts in the present litigation directed that the decree could only be put in execution if the decree-holder showed that it had in fact been registered. The second case cited was not brought to the notice of the Courts. It was there pointed out that the remark of Mullick, J., was purely obiter and that a decree for the rent conditional upon the unregistered plaintiff getting his name registered before he put the decree in execution cannot be granted.

In point of fact therefore the decree ought not to have been in the form in which it has been passed. But the point does not avail the appellant who is by no means prejudiced by the obstacle thus erroneously placed in the path of the decree-holder. Actually the respondents also make no grievance of it since it is pointed out at the Bar that registration took place in 1931 shortly after the judgment under appeal was passed so that it presents no difficulty to them. Even on Umeshwardhari Singh v. Neman Singh, 1923 Pat 410 = 110 IC 469 = 7 Pat 690 they must now be successful in this appeal in the main.

The fact however is that the decision docs not depend upon the two rulings cited in which the suit was brought by an unregistered plaintiff. Here the the suit for rent was brought by two plaintiffs to whom the provisions of S. 78 had no application and when Banko Behari and his wife were substituted in place of one of them, it was as the representatives of that plaintiff to whom the defendant had all along been bound to pay the rent claimed. The same question arose in two Calcutta cases. The first is Belchambers v. Hussain Ali Mirza, (1898) 2 CWN 493, where the person substituted was the receiver to the estate of the plaintiff No. 1. The second was Pramada Sunderi Debi v. Kanai Lal Saha, (1900) 27 Cal 178, where the person substituted for the plaintiff was his widow. It was held that in such leases the provisions of S. 78 had no application and did not bar the passing of a decree in favour of the person substituted. I see no reason to differ from this view which has never been doubted over a long period of years: in fact, it is difficult to believe that the legislature could have intended such hardship to the heirs and representatives of plaintiffs who had brought a suit not barred in any way by S. 78, and the words of the provision do not constrain to such a construction. I would dismiss this appeal with costs.

James, J.

I agree.