Chandra Sekhar Missir vs Jagarnath Singh and Others

Fazl Ali, C.J.—This is a Letters Patent appeal from the decision of Sinha J. in a second appeal arising out of a suit for a declaration that the plaintiffs'' interest in a certain permanent tenure has not been affected by the sale which was held in the following circumstances. In September 1987, defendants 1 and 2, the landlords to whom the rent for the tenure was payable, brought a suit against the recorded tenure-holders (these being plaintiff 1, defendants 3 and 6 and another person), and, in execution of the decree, which was passed in that suit, defendants 1 and 2 purchased the tenure on 2lst January 1938, and on 15th March 1939, they obtained possession of it through the executing Court. It appears that on 24th April 1936, plaintiffs 2 to 6 had purchased a share in the tenure in a money decree passed against defendants 4 to 6, that is to say, some of the tenure-holders. The present suit was instituted by the plaintiffs in 1939 for a declaration that the sale held in execution of the rent decree was not binding against them as plaintiffs 2 to 6 had not been impleaded in the rent suit, notwithstanding the fact that they had purchased a share in the tenure before the institution of the suit. The suit was resisted by defendants 1 and 2, (of whom defendant 1 is now dead) on the ground that the landlord had no notice of the transfer and there had been no strict compliance with the provisions of Section 13, Bihar Tenancy Act, which requires that when a permanent tenure is sold in execution of a decree other than a decree for arrears of rent due in respect thereof, the Court, before confirming the sale, shall require the purchaser to pay into Court the landlord''s registration fee and such further fee for service of notice of the sale on the landlord as may be prescribed. The Munsif gave effect to the plea and dismissed the suit. But the Subordinate Judge, though agreeing with him that the suit was liable to be dismissed in so far as plaintiff 1 was concerned, he decreed the suit as regards the share purchased by plaintiffs 2 to 6. The suit of plaintiff 1 was dismissed inasmuch as he was a recorded tenant and had been impleaded as a defendant in the rent suit. But the other plaintiffs'' claim succeeded because they had not been made parties to the rent suit in spite of the fact that thay had acquired by purchase in an execution sale an interest in the tenure. The judgment of the learned Subordinate Judge has been upheld in second appeal, and hence this appeal under the Letters Patent.

The point which arises in this case is a very short one. It has been found as a fact that plaintiffs 2 to 6 had purchased a share in the tenure in a money decree in the year 1936, that is to say, before the institution of the rent suit, and the question which is to be decided is, what is the effect of their not having been impleaded in the rent suit. The contention which is put forward on behalf of the appellant is that the landlord, not having any notice of the purchase by defendants 2 to 6, was not bound to implead them in the suit, and the decree obtained by them (the landlords) was a rent decree because it was obtained against all the recorded tenants. The Courts below, in deciding this question, have proceeded on the assumption that the landlord''s fee, which is required by Section 13, Bihar Tenancy Act, was not paid, and also that no notice was served upon the landlord, as it should have been served, if the fee for the service of such notice as prescribed in the section had been deposited. The question is whether, upon this assumption, the decree obtained by the landlords should be regarded as a rent decree, or merely as a money decree affecting the right, title and interest of the persons impleaded in the suit. Section 11, Bihar Tenancy Act, provides that every permanent tenure shall, subject to the provisions of this Act, be capable of being transferred and bequeathed, in the same manner and to the same extent as other immovable property. Section 1, Bengal Act (NO. l of 1903) provides as follows:

No transfer which has heretofore been made or which may hereafter be made u/s 12, Section 13, Section 17 or Section 18, Ben. Ten. Act, 1885, of a permanent tenure shall be deemed to be invalid merely on the ground that the landlord''s fee prescribed by the said Sections 12 and 13 has not been paid.

It it, therefore, clear that the mere fact that the landlord''s fee was not deposited as prescribed by Section 13 cannot make the sale in favour of plaintiffs 2 to 6 invalid. But the learned advocate for the appellants contends that the decree obtained by the landlords must be held to be a rent decree because no notice was served upon the landlord intimating to him that there had been a transfer of an interest in the tenure in an execution sale. The question of notice is not dealt with in" Act l of 1903, but was the subject of certain cases decided by the Calcutta High Court prior to the, enactment of that Act. The earliest case on the point is Kristo Bulluv Ghose v. Kristo Lal Singh 16 Cal. 642. In that case there was a suit by a landlord to recover the rent of a darpatni, and the defence was that a certain interest in the darpatni had been transferred before the suit to another person, and therefore, the landlord was not entitled to recover the whole rent from the defendant. To this the landlord''s answer was that inasmuch as he had not received notice of the transfer from the Collectorate, the tenant originally recorded was still liable for the rent. It was, however, held that the transfer of the tenure was complete as soon as the document was registered, and the plea of the defendant was a good one. While dealing with the question of notice Petheram, C. J. observed as follows:

Then, is there any reason or possibility to say that, notwithstanding the fact that the transfer was complete, this man (the defendant) still remained liable to his landlord. The liability here is a liability in consequence of the estate, and it is admitted that it is an ordinary rule that the liability ceases when the estate is transferred and the vendor ceases to have any estate in the property, but that, in whatever way the1 transfer may be made, the liability remains on the original tenant, until notice has / been given to the landlord.

As to that, it is enough for us to say that the Act is absolutely silent upon the point, and we do not think that any such condition of things can be inferred from the provisions of the Act. If the Legislature had intended to impose any such limitation upon the right to transfer, we think they would have said so in so many words. They have not done so, and we think we cannot imply it from what they have said.

This case was followed in Chintamoni Dutt v. Rash Behari 19 cal. 17, wherein it was held that after a recorded tenant has transferred his tenure to another person and that transfer has been duly registered under the provisions of the Bengal Tenancy Act, he is no longer liable for the rent of the tenure, although the landlord may not have received actual notice of such transfer. The learned Judges who decided the case, after cTeferring to the case which has just now been quoted, proceeded to observe as follows:

The law seems pretty clear upon the subject; and although it might seem a case involving hardship to the landlord, that though he may not have received a notice, by some neglect on the part of the Registrar or of the Collector, he is still liable to pay the costs of the suit for rent subsequently brought against the wrong person. Although it certainly was the case before the Bengal Tenancy Act was passed that the Courts always held that the landlord is entitled to look to his recorded tenant for all rent until he receives due notice of the transfer, the present law, as explained by the decision in 16 Cal. 642 appears to have altered that state of things.

It is true that these eases were cases relating to Section 12, Ben. Ten. Act, but it seems to me that on principle no distinction can be drawn between cases which come u/s 12 and those which come u/s 13. Section 11, Bihar Tenancy Act, which has already been quoted, provides that a permanent tenure is capable of being transferred in the same manner as other immovable property. There is nothing in the Act to suggest that the title of the transferee is not complete until the landlord receives notice of the transfer. It is true that provisions are made for the payment of the landlord''s registration fee and also for the service of notice upon the landlord, but it is nowhere suggested that non-compliance with the provisions will affect the title of the transferee. Where the sale takes place u/s 12, notice is to be issued by the officer who registers the instrument of transfer, and where the sale takes place u/s 13, the notice is to be issued by the Court confirming the sale. The mere fact that the Registrar or the Court does not carry out the directions contained in Sections 12 and 13 cannot affect the title of the transferee, and if the failure of the payment of the landlord''s fee by the transferee cannot affect his title as provided by Section 1 of Act 1 of the Bengal Act (NO. l of 1903), I do not see why his failure to deposit the fee for serving notice on the landlord should have any other effect. The question has been dealt with at some length by "my learned brother in Rani Prabhabati v. Lal ji Mahton A.I.R 1944 Pat. 252, and I do not think I can usefully add to which he has said in that case while dealing with a similar point raised in that case. The learned advocate for the appellant has relied upon the following cases in support of his contention that the non-service of the notice upon the landlord will entitle him to bring a suit against the recorded tenant only: AIR 1930 193 (Privy Council) , Rammoyi Dasi v. Rupai Pramanick (11) 9 Ind. Cas. 801 and Fazar Ali Mistri v. Amir Buksh Mian A.I. R. 1919 Cal. 1000. In the first case it was pointed out by the Privy Council that the Tenancy Act of 1885 had made a radical change in She existing law by providing that instead of the transferee being bound to go to the landlord to get his name recorded, a voluntary transfer must be by a registered instrument, and that before registration a fee was to be paid by the transferee and notice given by the Registration Office to the landlord, or, in the case of an execution sale, by the executing Court. Having pointed this out, their Lordships proceeded to observe:

In this state of the law their Lordships can see no foundation for the contention that a landlord can ignore all transfers of the tenure and rely upon decrees obtained by him against persons whom he chooses for his own purposes still to record as his tenants, though he knows, or must be taken to know, that their interest in, the tenure has ceased.

Then they deal with the question of notice and point out that there was uncontradicted evidence that the landlord had notice of the new interests which had come into existence. They also point out that, in the absence of evidence to the contrary, it might be presumed that the procedure laid down by Sections 12 and 13 of the Act was duly followed and that the proper statutory notice was given of the execution sales from which the new purchasers had acquired title. Their Lordships were not called upon to express an opinion on the specific question which is raised here, namely, as to what would be the effect upon the title of the transferee if the landlord does not receive notice of the transfer and therefore that decision has little bearing upon the present case.

The other two cases have been dealt with by Sinha J. in his judgment, and all that I need say is that the question which they appear to decide is whether a landlord is bound to acknowledge the splitting up of a tenure when he had given no consent to its splitting up. The learned advocate for the appellant contends that a different rule is applicable where only a portion of the tenure and not the whole tenure has been transferred. But Section 17, Bihar Tenancy Act, provides that, subject to the provisions of Section 88, Sections 11 to 13 shall apply to the transfer of or succession to a share in a permanent tenure. This section has been construed in a number of eases, but I shall refer here only to one of them, namely, Mohesh Chunder Ghosh v. Saroda Prasad Singh (94) 21 Cal. 433, where it was held that there is nothing in Section 88, Ben. Ten. Act, to prevent a person who has purchased a share in a mukarrari holding from bringing a suit for a declaration of his right to that share and for possession of the same after setting aside a sale held in execution of a decree for rent, to which he was not made a party, and that Sections 17 and 18, Tenancy Act, recognise the transfer of a share of a holding and enable the transferee to be recorded as one of the tenants in respect of the holding. In my opinion, the view taken by the learned single Judge of this Court is correct, and I would dismiss this appeal with costs.

Agarwala, J.

I agree.