Dina Nath Malla vs Dina Nath Gorain and Others

Scroope, J.—Plaintiffs brought the suit out of which this appeal arises for a declaration that they and defendant 2 had a holding in village Lakhiabaid Upardih under defendant 1 who was its proprietor in Ghatwali Jaigir right, their case being that the interest of plaintiffs 1--4 was 5 annas 9p; plaintiffs 5 to 7, 4 annas; plaintiffs 8 to 9, 3 annas and defendant 2, 3 annas 3p. They alleged that defendant 1, in collusion with defendant 2, had fraudulently obtained an ex parte decree for rent and had got the holding sold in execution. The first Court dismissed the suit holding that there had been no fraud and that though the plaintiffs were co-sharers as alleged with defendant 2 in the holding they had never been recognized as co-tenants of the holding by defendant 1.

On appeal the Additional District Judge reversed the decision of the Munsif in part; he agreed with him that the plaintiff''s shares were as alleged in the holding, but that the name of defendant 1 alone stood in the books of the landlord, defendant 1, and that plaintiffs had made no effort to have their names recorded. He went on however to hold that as previously, when defendant 1 had obtained a rent decree against defendant 2 in respect of this holding, the plaintiffs had deposited in April 1916 the decretal amount in Court; and the amount so deposited had been withdrawn by defendant 1 it was not open to defendant 1 to say that he had not recognized the depositors as co-tenants of the holding and that his action amounted to a recognition of the plaintiffs as joint tenants with defendant 2.

In the Courts below there was a dispute about the factum of this deposit and its withdrawal, but we must take the findings of the first appellate Court on that matter as final and they are that in an execution proceeding arising out of a decree for rent and cess for the years 1317 to 1320 the plaintiffs deposited the decretal amount and the amount was withdrawn by defendant 1 under protest, the execution case being dismissed on full satisfaction. The learned Additional District Judge granted a decree in part only as he held that a portion of the suit claimed land did not fall within the holding in question, and there is a cross objection against that finding by the plaintiffs-respondents.

The contest now in second appeal by defendant 1 centres round the effect of this withdrawal of the decretal amount and Mr, C.C. Das for the appellant relies very strongly on a decision of this Court in Sheoprasad Lal v. Brahmdeo Lal 38 Ind.Cas. 366. In that case Atkinson, J., held that where a landlord decree-holder withdraws, under protest, money deposited by a transferee of an occupancy holding u/s 171, Ben Ten Act, he does not thereby recognize the transferee as his tenant. Except for the fact that that case is under the Bengal Tenancy Act, and this is under the Chota Nagpur Tenancy Act, the facts are the same. Defendant 1 here challenged the right of the plaintiffs to deposit, alleging that they were not his recorded tenants; and the Court''s order was "he may withdraw the money under protest." The fact that defendant 1 was allowed by the Court to withdraw the money under protest has been overlooked by the learned Additional District Judge; at least it has not been referred to in the judgment.

Mr. S.M. Mullick for the respondents contends on the other hand that this decision of Atkinson, J., was reversed by a Divisional Bench of this Court in the case of Lala Barhmdeo Lal v. Sheo Prasad Lal [1917] 2 Pat. L.J. 561, it is true that the decision was reversed but on a different ground. Plaintiff who was a transferee from defendant 2 sought for a declaration that the rent decree obtained by defendant 1 against defendant 2 was fraudulent and not binding on the plaintiff. Atkinson, J., held that although defendant 1 had withdrawn the deposit made by plaintiff u/s 171, Ben. Ten. Act, he had done so without prejudice and that this did not amount to recognition of the plaintiff as his tenant. He accordingly dismissed the suit. In appeal to this Court the Divisional Bench only went so far as to hold that the plaintiff was entitled to maintain the suit as a statutory mortgagee u/s 171, Ben. Ten. Act. They did not overrule the view taken by Atkinson, J., as to the effect of withdrawal under protest; in fact his decision was maintained that the plaintiff had not thereby become a tenant; apparently it was not even impugned; the landlord''s position vis a vis the transferee was expressly left open. In that case Atkinson, J discusses and differentiates the English case which is very strongly relied on by the respondents, namely, George Henry Davenport v. Queen [1877] 3 A.C. 115. He points out that in that case the money was not only paid but received as rent whereas in the case before him, as in our case, the amount was paid to satisfy a decree, and was accepted by the proprietor without prejudice to his right to challenge the status of the maker of the payment.

�It seems to me" says Atkinson, J., "not only contrary to common sense but a violation of the true facts to contend that the person by his conduct has recognized the status of the transferee as a tenant.

With that view of the position I entirely agree. Davenport''s case [1877] 3 A.C. 115 was one relating to lessor and lessee; the ratio decidendi was that Courts always lean against forfeiture and the landlord was not allowed to take money on terms other than those of the party tendering. The position here is quite different.

In the Calcutta High Court however the weight of authority appears to be in favour of the contention of the respondents: vide Jugalmonmohni v. Srinath Chatterji 7 Ind.Cas. 477., Thomas Barclay v. Syed Hussein [1907] Cri.L.J. 601. and Kandarpa Narain Mazumdar and Another Vs. Bindu Bashini Dasi and Another, , which are cited by Mr. S. M. Mullick. A contrary view has however been taken in Sukhchand Das v. Giridhari Das AIR 1926 Cal. 1215 , where it was held that� the withdrawal of the amount by the landlord did not confer any right on the depositor in respect of the holding nor does it establish the relationship of landlord and tenant; and in Re Fazoo Mia Vs. Sultan Ahmed Choudhury, Rankin, C. J., observed as follows:

I doubt extremely whether it is true that a mere acceptance or withdrawal of this deposit would operate to oblige the landlord to recognize this tenant. But whether it be true or not--it is perhaps somewhat late in the day to abridge still further the rights of a transferee of a nontransferable occupancy jote in Bengal proper--increased latitude has been given in the matter of deposit u/s 170, but it is accompanied with an express provision that withdrawal of the amount by, the landlord either u/s 170 or Section 174 shall not operate as an admission of transferability.

In my opinion this is the principle which should be applied under the Chota Nagpur Tenancy Act where Sections 211 and 212 allow a very wide scope for deposits to avoid sales. It would be unfair to the landlord that the policy of the legislature to avoid sales of holding in Chota Nagpur should result in a corresponding disadvantage to the landlord in the shape of having tenancies thrust upon him, and this is an additional reason for accepting the view of Atkinson, J., which as I have shown does not by any means stand alone. I am therefore not prepared to accept the authority of the one Chota Nagpur case which has been cited for the respondents in this matter, namely, Rajendra Narayan Sing Deo and Others Vs. Mahesh Chandra Chatterji, Another general consideration is that I am unable to see how the principle of estoppel can operate as it should if the contention for the respondents is to hold good. By the withdrawal of the deposit the status quo ante is preserved, whereas if the money is not withdrawn and the holding is sold the depositor loses his interest in the holding completely. He has not been induced to change his position by any action of the landlord. To turn to a more particular consideration, in the Chota Nagpur Tenancy Act we have Section 211, which in 1916 the date of deposit, ran as follows:

If, before the day fixed for the sale of any tenure or holding in pursuance of Section 208, a third party appears before the Deputy Commissioner and alleges that he, and not the person against whom the decree has been obtained, was in lawful possession of, or had some interest in, the tenure or holding when the decree was obtained:

The Deputy Commissioner shall examine, such party according to the law for the time being in force relating to the examination of witnesses and if he sees sufficient reason for so doing and if such party deposits in Court or gives security for the amount of the decree, the Deputy Commissioner shall stay the sale, and shall after taking evidence adjudicate upon the claim:

Provided that no such adjudication shall be made if the Deputy Commissioner considers that the claim was designedly or unnecessarily delayed:

Provided also that no transfer of a tenure shall be recognized unless it has been registered in the office of the landlord or sufficient cause for nonregistration is shown to the satisfaction of the Deputy Commissioner.

The party against whom judgment is given by the Deputy Commissioner under Sub-section (1) may, at any time within one year from the date of the judgment, bring a suit in the civil Court to establish his right.

In the present case this is the procedure which the Deputy Collector should have adopted, he should have adjudicated on the plaintiffs'' right to make the deposit and then the party against whom the judgment was given by the Deputy Commissioner could within one year from the date of the judgment bring a suit in the civil Court to establish his right. He did not follow the procedure laid down but allowed the decree-holder to withdraw the deposit under protest. For the reasons I have given I would hold that the withdrawal of the deposit in such circumstances by the landlord did not amount to recognition of the plaintiffs'' tenancy. Had the Court decided in favour of the depositor then the decree would have been satisfied, and the landlord could have brought a suit within a year from the date of the judgment for ejectment or otherwise. I fail to see why he should be worse off because the Court has not adjudicated on the matter at all; that will be the effect of applying the principle of estoppel as laid down in the Calcutta rulings on which the respondents rely.

In this view of the case the decision of the learned Additional District Judge must be set aside on this point. The finding of the Munsif was that the plaintiffs had failed to prove that defendant 1 had ever recognized the plaintiffs as cotenants in the holding in question and the finding of the learned Additional District Judge also was that there was no evidence to show that the plaintiffs or their predecessors had ever made any attempt to have their names registered in the sharista of defendant 1. Fraud and collusion not having been established the decree of the first Court must be restored and the plaintiff''s suit and cross-appeal dismissed with costs throughout.

Macpherson, J.

I agree, and in supplement to the judgment just delivered append some further observations. I fail to understand on what principle it can be held that a mere acceptance or withdrawal of a decretal amount in a rent suit can operate to oblige the landlord to recognize the depositor as a tenant. This view is also expressed by Rankin, C. J., in Re Fazoo Mia Vs. Sultan Ahmed Choudhury, . Even if the preponderating opinion in the Calcutta High Court is that under the Bengal Tenancy Act such withdrawal implies recognition, there is not the same reason of stare decisis for submitting to that view in this Province.

As is established in the judgment just delivered, precedent in this Court is to the contrary. Even if withdrawal of such a deposit had that effect in the area where the Bengal Tenancy Act is in force, the position under the Chota Nagpur Tenancy Act is altogether different. If in the former the tendency is not to "abridge still further the rights of a transferee of a nontransferable occupancy jote," to quote once more from the decision cited, the contrary position indisputably obtains in Chota Nagpur where the legislature sternly discountenances transfers of raiyati holdings save in most strictly limited circumstances. In the decision in Rajendra Narayan Singh Deo v. Mahesh Chandra Chatterji, AIR 1924 Pat. 669, no reasons are given and the attention of the Court does not appear to have been drawn: (1) either to the policy of the legislature to reduce the number of sales of holdings in execution of rent decrees (which had become an extensive evil) by making it easy to have them set aside by a deposit of the decretal amount or to the wide terms of Section 211 in respect of a claim to deposit, which facts render it extremely unlikely that the legislature which had enacted Sections 46 and 47, Chota Nagpur Tenancy Act, could have contemplated that an admission to tenancy would be implied in the withdrawal of a deposit even though it should not be under protest, or; (2) to the decision in Sheoprasad Lal v. Lala Brahmdeo Lal 38 Ind.Cas. 366 which was not set aside or apparently even assailed in the Letters Patent appeal reported in Barhamdeo Lal v. Sheoprasad Lal [1917] 2 Pat. L.J. 561. In my opinion that case was not correctly decided.

A part from these general considerations, it is inconceivable that in a case where the express order of the Court on the objection of the landlord that the depositor is not his tenant, was that the landlord was permitted to withdraw the deposit on the distinct understanding (for that is what the order amounts to) that he would do so without detriment to his claim as set out in his objection, a tenancy could be created by implication in favour of the depositor.