Chintaman Mandar and Others vs Sia Ram Mandal and Another

Chatterji, J.—This is an appeal by the plaintiffs and arises out of a suit brought under Order 21, Rule 63, Civil P.C., in the following circumstances: The disputed lands comprising an occupancy holding of 8 bighas 12 kathas 17 dhurs belonged to one Zira Mandar. On his death the lands devolved on his son Jhoti. Subsequently, Jhoti died leaving a widow Sarjugia. While she was in possession, she conveyed the lands to the plaintiffs by a registered sale deed dated 10th October 1917 executed in the name of Naubat, a deceased brother of plaintiff 1. On Naubat''s death the plaintiffs became the exclusive owners of the lands. Sometime before the year 1932 Sarjugia died, and, on her death, her husband''s estate devolved on his mother Kanchania who was still alive. In 1932 the landlord filed a rent suit against Kanchania in respect of the disputed holding and obtained a rent decree against her. In execution of that decree the disputed holding was sold and it was purchased by defendant 2, and he purported to take delivery of possession in 1934. In 1936 defendant 1 obtained a money decree against defendant 2 and in execution of that decree attached the disputed lands. Thereupon, the plaintiffs preferred a claim under Order 21, Rule 58, Civil P.C., on the basis of their purchase from Sarjugia. The claim was dismissed on 8th March 1938. The present suit was then brought on 22nd March 1938. The suit was decreed by the Munsif, but on appeal, the Subordinate Judge reversed his decision and dismissed the suit.

Admittedly, the occupancy holding which was purchased by the plaintiffs in 1917 from Sarjugia was not transferable without the landlord''s consent under the law then in force. It is also undisputed that the plaintiffs did not get their names mutated in the landlord''s serishta. Nor is it disputed that the decree for rent which was obtained by the landlord in 1932 was a valid rent decree according to the law then in force. But by the Bihar Tenancy (Amendment) Act, 1934 (Act 8 of 1934) occupancy holdings were made transferable with retrospective effect. The relevant section of that Act is Section 26N which came into force on 10th June 1935. That section has since been replaced by Section 26B by the Bihar Tenancy (Amendment) Act, 1938 (Act 11 of 1938) which came into force on 9th November 1938. At the date of the institution of the present suit, therefore, Section 26N was in force. That section stood as follows:

Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the first day of January 1923, and, in the case of the transfer of a portion of a holding, to have accepted the distribution of the rent of the holding as stated in the instrument of transfer, or if there is no such instrument, as settled between the transferor and the transferee.

Though the case put forward by the plaintiffs in the Courts below was somewhat different, the contention raised on their behalf in this Court is based entirely on Section 26N. It is said that the sale deed obtained by them from Sarjugia being prior to 1st January 1923, the landlord shall, by reason of the provisions of Section 26N, be deemed to have given his consent to the transfer on the date it was made, and that the landlord not having impleaded them in the rent suit of 1932, the decree obtained in that suit cannot be regarded as a valid rent decree binding on them. The decree, it is said, had the effect of a money decree, and therefore the sale held in execution thereof could not affect the plaintiffs'' interest. On the other hand, it is contended on behalf of the defendant-respondent that according to the law then in force, the rent decree obtained in 1932 was a valid rent decree and the sale held in execution thereof was a valid rent sale which passed the holding and not merely the right, title and interest of the judgment-debtor.

That Section 26N has retrospective operation has been authoritatively decided by the Privy Council in AIR 1936 49 (Privy Council) . Their Lordships held that the words "shall be deemed to have given his consent" clearly made the section retrospective. In that case, however, there was no question as to whether any title already validly acquired under a rent sale held in execution of a rent decree validly obtained under the previous existing law could be affected or disturbed by Section 26N. There the landlord had brought a suit for ejectment of a transferee of a non-transferable occupancy holding. The Courts in India decided the suit in accordance with the law in force at the time. While the appeal before the Privy Council was pending, the Bihar Tenancy (Amendment) Act, 1934, was passed. The question agitated before their Lordships was whether Section 26N applied to the case. Their Lordships held that Section 26N was "expressed and intended to have retrospective action" and that there being no saving clause in the Act, the section was applicable to pending suits. Their Lordships said:

Section 26N is not a provision to the effect that no action shall lie in certain circumstances, nor has it any reference directly to litigation. Its provision is that every person claiming an interest as a landlord shall be deemed to have given his consent to every transfer made before 1st January 1923. This is retrospective: the question is not whether general language shall be taken only in a prospective sense. The object of this section can only be to quiet titles which are more than ten years old, and to ensure that if during those ten years the transferee has not been ejected he shall have the right to remain on the land. Within this class the legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed.

In the light of these observations of their Lordships Section 26N has been construed differently in different decisions of this Court with the result that there is a conflict between these decisions. It is because of this conflict that this case was referred to a Pull Bench. The earliest of these cases is Muhammad Shaiait (Sic) Vs. Nithali Ram and Others, which was decided by Noor and Rowland JJ. The facts of that case were these: The defendants second party, who were the original raiyats of an occupancy holding, sold it to the plaintiffs in 1921. The landlord, who was the defendant first party, in execution of a money decree of his own purchased the holding in 1931 and got delivery of possession in 1932. In 1933 the plaintiff''s brought a suit for recovery of possession of the holding. The trial Court dismissed the suit, but on appeal it was decreed by the lower appellate Court. When the case was pending in second appeal in this Court, the Bihar Tenancy (Amendment) Act, 1934, which introduced Section 26N came into force. Their Lordships, following the above Privy Council case in AIR 1936 49 (Privy Council) held that Section 26N was applicable to the case and that by operation of that section, the title of the plaintiffs to the disputed holding became complete. The contention raised on behalf of the landlord was that though he had obtained possession of the holding under the sale and delivery of possession in execution of a simple money decree, once he had taken possession ha could not be ousted as he was entitled to take possession of it in his capacity as landlord independently of his purchase in execution of his decree. Their: Lordships overruled this contention on the ground that Section 26N, which was in express term made retrospective, was a complete answer to it. The auction purchase by the landlord, being in execution of a simple money decree did not and could not in any way affect the plaintiff''s interest in the holding. Thus, there was no question of any title to the holding being validly acquired by the landlord under his auction purchase. That decision, therefore, does not touch the point now under consideration. Of course, there is the following observation of Noor J. who delivered the judgment:

When the Legislature has deliberately made a certain provision retrospective, that is to say, legalised all the transfers which took place prior to a certain date, all those persons who were holding lands by virtue of those transfers, must get complete title to them in the same way as if they had purchased them with the full consent of the landlords.

But this observation must be taken with reference to the facts of that case. The next case is Thakur Rai v. Issardyal Prasad AIR 1938 Pat. 559 which was decided by Wort and Varma JJ. In that case the plaintiff had purchased a portion of an occupancy holding in 1913, but, subsequently, in 1932 the landlord, in execution of a rent decree obtained by him against the recorded tenants, purchased the entire holding. The plaintiff then brought the suit in 1933 against the landlord for a declaration of his title to the land by virtue of his purchase in 1913. The plaintiff''s case was that his purchase was recognised by the landlord and that the rent decree, in execution of which the landlord purchased the holding, was really a money decree inasmuch as all the recorded tenants were not impleaded. Both the Courts below decided these questions of fact against the plaintiff and dismissed the suit. During the pendency of the second appeal in this Court Section 26N came into force. Their Lordships, on the authority of the said Privy Council decision in AIR 1936 49 (Privy Council) , held that the plaintiff had title by reason of operation of Section 26N. Wort J., who delivered the leading judgment, relied on the following passage in the said Privy Council decision:

The object of this section (referring to Section 26N, Bihar Tenancy Act), can only be to quiet titles which are more than 10 years old, and to ensure that even during those 10 years the transferee has not been ejected, he shall have a right to remain on the land.

On behalf of the landlord respondent the contention was raised that "the section is only retrospective to the extent of its relating to titles which have not been disturbed." But this contention was overruled. Wort J. said:

The matter can be disposed of by a simple question which, I think, must be answered only in one way: The question is, what would have been the position had the plaintiff here established, quite apart from Section 26N, Bihar Tenancy Act, that he had been recognised by the landlord in 1913. The learned advocate appearing on behalf of the respondents frankly admits that if the plaintiff had established his recognition, he would have been bound to succeed in the action, because the decision of the Judge on the other question would have been different, namely, that the action was an action not against all the tenants but only against some and further that the mere fact that he had established his title would have disposed of any question of the action of 1931 (that is, the rent suit of 1931) having J brought the title of the plaintiff to an end.

With all respect to the learned Judge, I do not think this analogy logically follows from a correct interpretation of Section 26N, nor is it warranted by the above-quoted passage in the Privy Council judgment. If the landlord had in fact recognised the plaintiff''s purchase, he was bound to implead him in his rent suit, and the result of not impleading him would be that the decree obtained in the suit would not be a valid rent decree. But the effect of Section 26N is that by fiction, as it were, the landlord shall be deemed to have recognised the plaintiff''s purchase in 1913. Such fictional recognition does not necessarily carry all the consequences that would flow from actual recognition. To what extent the fictional recognition will carry its consequences would depend upon the object and language of the section. In the case of actual recognition, nothing else need enter into consideration. The object of Section 26N is to validate certain old transfers--transfers made before 1st January 1923. In other words, in the case of such old transfers which were not valid without the landlord''s consent where the transferee had not already been ejected by the landlord, the section gave him a valid title to remain on the land. But this does not mean that where the transferee''s right had already been extinguished by a valid rent decree and a rent sale held in execution thereof, the section would revive that right. The language of the section obviously implies that the transfer to which the landlord shall be deemed to have given his consent is still in force, that is to say, the transferee''s right is still in existence. If his right was already gone, there remained nothing to which the landlord would be deemed to have given his consent. Take for instance, the case where the transferee was already ejected by suit. In such a case, can it be possibly suggested that section 26N would give the transferee a right to recover back possession from the landlord? Similarly, where the transferee''s right was already extinguished by a valid rent sale, it is difficult to see how Section 26N could revive his right. There is, however, a clear distinction between a pending litigation and a litigation which had already become final before the section came into force. In the former case, the section will apply, as held by the Privy Council in AIR 1936 49 (Privy Council) . In the latter case the section can have no application.

The next case is Chandrika Prasad Singh v. Ram Lal Sahu 187 Ind.Cas. 629 decided by the late Chief Justice, Sir Trevor Harries and my Lord the present Chief Justice. In that case, defendants 1 and. 2 had purchased a portion of an occupancy holding in 1912 and the remaining portion was subsequently purchased by other persons who were represented by defendant 15. The transferees entered into possession and erected pucca buildings. In 1930 the landlords instituted a rent suit against the original tenants of the holding and obtained a rent decree. In execution of that decree the holding was sold in 1931 and was purchased by the plaintiff who was said to be a minor son of one of the landlords. The plaintiff attempted to take delivery of possession but was unable to do so as there were pucca buildings on the land. Then in 1933 he brought the suit for declaration of title and recovery of possession after giving the defendants time to remove the structures built thereon. The Courts below dismissed the suit, the trial Court on the ground that it was barred by limitation and the lower appellate Court on the ground that the transfer to the contesting defendants was a good transfer and therefore they could not be ejected. Both the Courts, however, found that the contesting defendants were in continuous possession of the disputed holding for over 20 years. In second appeal, which was heard by Rowland J. he held that the suit was barred by limitation. He was, however, of opinion that the transferees could not claim the protection of Section 26N as they could not pray in aid that section to revive rights which were already extinguished. Then there was a Letters Patent appeal in which the main contention which appears to have been raised on behalf of the respondents was based on Section 26N. Their Lordships accepted this contention and held that the contesting defendants were protected by Section 26N and could not, therefore, be ejected. Prom the judgment, which was delivered by Harries C.J. with whom my Lord the present Chief Justice agreed, it appears that their Lordships felt that the previous decisions of this Court in Muhammad Shaiait (Sic) Vs. Nithali Ram and Others, and Thakur Rai v. Issardyal Prasad AIR 1938 Pat. 559 were binding on them.

A contrary view, however, was taken in the latest case in Raja Jha v. Ram Chandra Jha AIR 1941 Pat. 455 which was decided by Harries C.J. and Manohar Lall J. In that case the facts were briefly these: One Musan had an occupancy holding of 7 bighas 17 kathas 1 dhur. Out of this about 6 kathas had been transferred to one Maksudan. Subsequently, on 31st January 1905 Musan sold one bigha 10 kathas to Jagmohan Missir. After Jagmohan Missir''s death his heirs gave usufructuary mortgage of this 1 bigha 10 kathas to the father of plaintiffs 1 to 10. In the year 1930, when Musan was dead, the landlord of the holding brought a rent suit against Musan''s heirs and obtained a rent decree, neither Maksudan nor the heirs of Jagmohan nor plaintiffs 1 to 10 being impleaded in that suit. In execution of that rent decree, the holding was sold in 1933 and was purchased by the defendant and he took delivery of possession in July 1934. Then in 1937 the plaintiffs brought the suit for a declaration that they were entitled to 1 bigha 10 kathas as usufructuary mortgagees and for recovery of possession. They pleaded, inter alia, that the decree for rent obtained by the landlord was not a valid rent decree but a simple money decree, because neither Maksudan nor the heirs of Jagmohan Missir nor the plaintiffs who were interested in the holding were impleaded in the rent suit. The trial Court dismissed the suit, holding that the said persons being transferees and their transfers not having been recognised by their landlord, they were not necessary parties to the rent suit, and that the decree obtained in that suit was a valid rent decree, and therefore the holding passed by the sale held in execution thereof. On appeal, the lower appellate Court relying on Section 26N held that Maksudan and the transferees of the disputed 1 bigha 10 kathas were necessary parties to the rent suit and they not having been impleaded, the decree obtained in that suit was not a rent decree but a mere money decree, and therefore the plaintiffs'' interest in the disputed property was not affected by the sale held in execution of that decree. The appellate Court, therefore, decreed the plaintiffs'' suit. In second appeal it was contended on behalf of the appellant that Section 26N, though expressly made retrospective, could not affect the defendants'' right which had already been validly acquired in execution of the rent decree validly obtained before Section 26N came into force. This contention found favour with their Lordships. Harries C. J. who delivered the judgment said:

In my judgment though Section 26N, Bihar Tenancy Act, was expressly made retrospective, it could not possibly affect rent decrees which had been obtained and which had been fully executed previous to the section coming into force. This view of the law is, in my judgment, made clear by observations of Sir George Rankin who delivered the opinion of the Board in AIR 1936 49 (Privy Council) .

His Lordship then referred to the passage from Sir George Rankin''s judgment which I have already quoted, while dealing with that case, and continued as follows:

This observation makes it clear that their Lordships were of opinion that the section would apply to all cases which had not been the subject-matter of litigation or which were actually the subject-matter of litigation when the amending Act came into force, namely on 10th June 1935. He, however, makes it clear that the section can have no application whatsoever when the transferee had been lawfully ejected before the amending Act came into operation. In the present case the decree when obtained was a proper rent decree. It was put into execution, and the defendant-appellant as purchaser obtained possession of the land in dispute and ejected the plaintiffs by due course of law. They were lawfully ejected before the Act was even passed and long-before the Act actually came into force. In my view Section 26N cannot affect the rights of the defendant-appellant who had purchased this property in execution proceedings which were perfectly lawful at the time and who had obtained possession as a result of those proceedings.

In my view this statement as to the true effect of Section 26N seems to be correct. It is to be observed that the attention of their Lordships was not drawn to the earlier cases cited above to one of which Harries C. J. was himself a party. But this does not make any difference, because the whole matter is now before the Pull Bench. It is further to be observed that in the order of reference to the Pull Bench in the present case to which I was a party it was stated that the opinion expressed in Raja Jha v. Ram Chandra Jha AIR 1941 Pat. 455 must be regarded as obiter, because the plaintiffs in that case were usufructuary mortgagees and could not therefore claim the benefit of Section 26N which refers to transfer by sale, exchange, gift or will. But, Jagmohan Missir from whose heirs the plaintiffs had taken the usufructuary mortgage was a purchaser and therefore the case would be covered by Section 26N, if it was otherwise applicable. The decision in Raja Jha v. Ram Chandra Jha AIR 1941 Pat. 455 therefore cannot be regarded as obiter. I have so far proceeded on the assumption that Section 26N would apply to the present case. As I have already said, that section has now been replaced by Section 26B by the Bihar Tenancy (Amendment) Act, 1938 (Act 11 1938) which came into force on 9th November 1938. Section 26B runs as follows:

If a person who became entitled to an occupancy holding or a portion thereof by transfer at any time before the date of the commencement of the Bihar Tenancy (Amendment) Act, 1938, has not given to the landlord notice of the transfer nor paid the landlord''s transfer fee payable under the law in force immediately before the date of the commencement of the said Act, he may at any time after the said date give notice of the transfer to the Collector in the prescribed form and pay to the Collector the prescribed fee for the service of the notice on the landlord and the landlord''s registration fee prescribed by Section 12 as if such holding or portion were a permanent tenure, or a portion of a permanent tenure, together with the costs necessary for its transmission to the landlord, and the Collector shall cause the notice to be served on, and the landlord''s registration fee to be transmitted to, the landlord named in the notice in the prescribed manner, and such transfer shall thereupon be binding in the same manner and to the extent as a, transfer made after the date of the commencement of the said Act: Provided that if the transfer was made before the first day of January 1923, it shall be binding on the landlord and no notice shall be necessary and no landlords registration fee shall be payable.

Paragraph 1 of this section corresponds to Section 260 of the previous Act, while the proviso corresponds to Section 26N. There has been no serious controversy at the bar that it would make no difference in the present case whether the old Section 26N or the proviso to the new Section 26B be applied.

For the reasons given above, I am of opinion that neither the old Section 26N nor the proviso to the present Section 26B, I Bihar Tenancy Act, though expressly made retrospective, can affect any title which had already been acquired under a rent sale held in execution of a valid rent decree under the provisions of the Bengal Tenancy Act then in force. In the present case defendant 2 purchased the disputed holding, before the Bihar Tenancy (Amendment) Act, 1934, came into force, at a rent sale held in execution of a valid rent decree under the provisions of the Bengal Tenancy Act, then in force.

The plaintiffs, therefore, cannot take the benefit of the previous Section 26N or the proviso to the present Section 26B, Bihar Tenancy Act. The plaintiffs'' title having been already extinguished by the rent sale of 1933, their suit must fail.

The decision of the lower appellate Court, therefore, is right and I would dismiss the appeal, but in the circumstances, without costs.

Fazl Ali, C.J.

I agree.