Hiranmoyee Debi vs Jahangir Meerza

Das, J.—This is an appeal by Defendants Nos. 1 to 4 and is directed against a judgment and decree passed by A. Islam, Subordinate Judge of Murshidabad, decreeing the Plaintiffs'' suit for recovery of rent.

The Plaintiffs case in the plaint is that the predecessor-in-interest of the Plaintiffs and of Rai Bahadur Surendra Nath Singha was the zemindar of the lands covered by the tenure in suit, which is a patni. The Plaintiffs further allegation is that the Defendants predecessor-in-interest took a lease of the disputed tenure at a rent of Rs. 9,176-10-6, that the Plaintiffs had separate collection in respect of their 10 as. 9 p. share, the remaining share in the zamindari being vested in Rai Bahadur Surendra Nath Singha. The Plaintiffs'' further allegation is that, on account of default in payment of patni rent, proceedings under Regulation VIII of 1819 were initiated by the zemindars and the patni was brought to sale and purchased khash by the zemindars, and that, the zemindars took possession of the said patni. The patni-sale did not liquidate the arrears for 1345 B.S. The Plaintiffs, therefore, claim their share of the unpaid patni rent for the year 1344 B.S. and the balance of the patni rent for 1345 B.S., the claim of the Plaintiffs was laid at Rs. 5,375-9-3. The suit was filed on February 19, 1946. The bar of limitation was sought to be saved by reason of the pendency of certain proceedings under the Bengal Agricultural Debtors Act. The Defendants filed written statements. We are concerned in this appeal with the plea raised by Defendants Nos. 1 to 4 in their written statements. In substance the defence is that the patni in suit descended to Anukul Chandra Mukherji and, by a will executed by him, Anukul''s share in the patni and in certain other lands was devised to a deity Sri Sri Narain Jiu Deb Thakur, one of the sons of Anukul being appointed a shebait of the said deity. The defence further is that. it was the deity, who was the tenant of the disputed patni in respect of Anukul''s share, and that Defendants Nos. 1 to 4 are not personally liable. Certain other defences, including a plea of limitation, were taken by Defendants Nos. 1 to 4. In view of the scope of this appeal, it is not necessary to set out these defences. The Subordinate Judge, by his judgment, dated June 30, 1947, overruled the defence and decreed the Plaintiffs'' suit against. the Defendants. Only Defendants Nos. 1 to 4 have preferred this appeal. Mr. Roy Choudhury, appearing on behalf of Defendants Nos. 1 to 4, has not pressed the other pleas which are found against these Defendants in the court below, but has limited his appeal to the question whether Defendants Nos. 1 to 4 are personally liable for payment of the rent claimed by the Plaintiffs in their share. Mr. Apurbadhan Mukherji, appearing for the Plaintiffs landlords, has disputed the correctness of the above contention and has sought to support the decision of the Subordinate Judge on an additional ground to which reference will be made hereafter.

In order to deal with the contentions which have been agitated before us, it is necessary to state the following facts which are admitted. On August 29, 1868, the predecessor-in-interest of the zemindars granted a patni lease to Chandra Nath Mukherji. In course of time, Anukul Chandra Mukherji inherited a share in the patni. On September 8, 1915, Anukul executed a will bequeathing his interest in the patni and in certain other properties to a deity Sri Sri Narain Jiu Deb Thakur. The shebait of the deity appointed by the will was Mihir Kumar Mukherji, one of the sons of Chandra Nath Mukherji. The will was probated on August 24, 1946. In the meantime, Anukul had died. It is a matter for contention between the parties as to who went into possession of Anukul''s share in the patni on the latter''s death. It appears that on the basis of an agreement dated August 10, 1923, marked Ex. E, all the sons of Anukul, i.e. Defendants Nos. 1 to 4, became the ghebaits of the said deity. The record shows that the patni was brought to sale for the patni Tent of the year 1345 B.S. and was purchased khash by the zemindars who took possession of the patni. The Plaintiffs, allegation is that the patni ceased to exist thereafter. I have already referred to the claim in this suit for rent, which included the unpaid arrears of 1344 B.S. and the unpaid balance of the Tent for the year 1345 B.S., in the Plaintiffs'' share. The Subordinate Judge was of the opinion that, as the deity did not take any steps in accordance with the provisions of Section 15 of the Bengal Tenancy Act or to get its name recorded in the landlord books, the liability for rent devolved on Defendants Nos. 1 to 4 along with the other Defendants.

The right of a landlord to recover rent rests on two foundations, viz., privity of estate or privity of contract.

The contention is that there was a privity of contract between the zemindars and the Defendants including Defendants Nos. 1 to 4.

A contractual right or an obligation passes derivatively from one person to another in one of the following ways, viz., L.R. [1940] A.C. 1014, 1019, novation by the consent of parties, (1925) ILR Cal. 197 204-205, assignment by the unilateral act of one of the parties, (1938) 42 C.W.N. 1088, concurrence by the attachment of the contract to certain property with which it runs into the hands of successive owners or possessors who are not parties to the contract and (4) devolution on the death of a contracting party. For the purposes of this appeal, it is not necessary to discuss items 1, 2 and 3 referred to above. Item No. 4 deals with devolution on death of a contracting party. Where the contract is of such a nature that the continued life of the person who made the contract is an express or implied condition of it, the contract dies with him. Nokes v. Doncaster Amalgamated Collieries Limited (1937) 41 C.W.N. 1154. But where there is no such condition, the contract survives the maker of the contract and devolves upon his personal representatives both in respect of the benefit and the burden of the contract.

The effect of an assignment of contract has to be distinguished from that of an assignment of property by reason of the contract.

Mr. Apurbadhan Mukherji fairly drew our attention to Articles 452 and 453 of Halsbury''s Laws of England, Hailsham Ed., Vol. 20, where the law is thus summarized:

The interest of lessee, whether for a term of years or from year to year, in the demised property vests, upon his death, in his personal representatives; and this is so notwithstanding that the lessee has bequeathed the property; but up on the executor''s assent to the bequest the term vests in the legatee.

The personal representative takes the leasehold property as assignee, but he does not become personally liable for rent or on the covenants in the lease unless he has entered.

The law in this country is not dissimilar. The question has been considered in a number of cases. In the Full Bench decision in the case of Jagan Mohan Sarker v. Brojendra Kumar Chakrabarti (1925) ILR 53 Cal. 197, 204-205, B.B. Ghose J., delivering the judgment of the majority of the Court observed as follows:

The liability of a tenant to pay rent arises from the fact of possession of the land as a tenant where there is no express contract, and all persons in possession of land as tenants are under an implied obligation to pay the rent for the land to the landlord, whether they got into possession by right of succession or assignment.

The above view is in consonance with the definition of the term rent in Section 3(13) of the Bengal Tenancy Act.

The Bench decision in the case of Laksminarayan Roy Chowdhury v. Girija Sankar Chatterji (1938) 42 C.W.N. 1088, seems to lay down that the heir of a lessee, who has assigned his interest in the lease (the assignment not having been recognised by the lessor) is not liable for rent if he is not in possession.

Similarly in the case of Prodyot Coomar Tagore v. Hamidar Rahaman Mia (1937) 41 C.W.N. 1154, Nasim Ali J. observed that there is no privity of contract between the landlord and the heir of an occupancy raiyat and the heir can be made liable for the rent of the holding only when there is privity of estate and that such privity is established when the raiyat accepts the inheritance.

The above decisions no doubt relate to tenancy other than a patni. A patni tenure is heritable u/s 3 of the Patni Regulation and similar considerations will apply. It is undisputed that Defendants Nos. 1 to 4 are the heirs of Anukul Chandra Mukherji. In the absence of a testamentary disposition, they would succeed to the property of Anukul. The question is as to the effect of the testamentary bequest by Anukul in favour of the deity Sri Sri Narain Jiu Deb Thakur. It is contended on behalf of the Appellants that, as the will was probated on the death of Anukul, his personal representative, viz., his executrix became liable for rent to the landlord till an assent was given by the executrix to the bequest contained in the will of Anukul. Mr. Roy Choudhury referred to the evidence on record which shows that such assent was given and the liability of the personal representative of Anukul ceased. The estate of Anukul vested thereafter in the legatee, viz., the deity of Sri Sri Narain Jiu Deb Thakur. Anukul''s heirs, viz., Defendants Nos. 1 to 4 did not inherit the estate and could not be made personally liable for rent, as heirs.

Mr. Mukherji, however, raised the contention that, in the present case, the legatee did not go into possession, and the heirs of ''Anukul Chandra Mukherji, viz., Defendants Nos. 1 to 4, attorned to the landlords by payment of rent in their personal capacity and by such payment of rent, which was acquiesced in by the legatee, the position was accepted by the parties that the leasehold interest vested in the Defendants Nos. 1 to 4 personally and the latter became liable personally for payment of rent.

It does not appear that the point of view, which is now pressed before us by Mr. Mukherji, was discussed before the Subordinate Judge, at any rate the Subordinate Judge does not appear to have dealt with this aspect of the matter.

Mr. Mukherji drew our attention to the evidence, oral and documentary, which indicates that this point of view was sought to be made by the Plaintiffs in order to fasten liability on Defendants Nos. 1 to 4. Mr. Roy Choudhury, on the other hand, submitted that the above position was not accepted by Defendants Nos. 1 to 4 and he drew our attention to the evidence of d.w. 1, one of the contesting Defendants, who stated that there was no amicable payment of rent by the Defendants Nos. 1 to 4. In this state of the evidence and the course of trial in the court below it is necessary that the view contended for by Mr. Mukherji should be considered by the court below on the evidence which is already on record and on such further evidence which the parties may choose to adduce. If the Subordinate Judge is of the opinion that Defendants Nos. 1 to 4 paid rent in their personal capacity and accepted a personal liability to pay rent as such the decree passed by the court below would be maintained. If Defendants Nos. 1 to 4 are not proved to have made such payment of rent and to have accepted personal liability to payment as above, the court below will consider whether the fact that Defendants Nos. 1 to 4 gave notice of succession to the landlord as alleged by them or their conduct otherwise as appears from the records, would raise a plea of estoppel against them and disentitle them from disputing their personal liability to pay rent. If the court below answers this question in favour of the Plaintiffs the decree for rent personally against Defendants Nos. 1 to 4 would also be maintained. If, however, the court comes to an adverse finding against the Plaintiffs on above points the court below will hold that the decree would not make the Defendants Nos. 1 to 4 personally liable for the rent. Mr. Apurbadhan Mukherji rightly drew our attention to the decision in the case of Raj Kumari Usha Prova De v. Sachindra Kumar Basu (1945) 49 C.W.N. 351, which lays down that the question of personal liability should be determined at the stage of execution when the decree is sought to be executed. This is quite true, but, in view of the defence raised and the admitted fact that the patni has been made khash and the patni has according to the Plaintiffs ceased to exist, it is desirable, to avoid unnecessary litigation, that this question of the personal liability of the Defendants Nos. 1 to 4 should be determined at this stage. The decree as against the Defendants other than Defendants Nos. 1 to 4 will stand in any event.

Costs of this appeal as also of the trial court both before and after remand in so far as they concern the Plaintiffs and the Defendants Nos. 1 to 4 will abide the final decision of the question of the personal liability of the Defendants Nos. 1 to 4.

The appeal is disposed of as above, and the suit remitted to the court below for further hearing, in the light of the observations contained in the judgment.

Lahiri, J.

I agree.