Hurry Churn Bose vs Rajah Runjit Singh

Petheram, C.J.—An area of land consisting of about 1,160 bighas was owned by four groups of fractional sharers. One group being the owners of eight-annas, another of four, and the two others of two-annas each. Each of these groups, about the year 1859, let its own share to Mr., Laruetta in perpetuity at an agreed rental by a separate lease, for cultivation, and under these four leases, Mr. Laruetta held and cultivated the whole of the 1,160 until his interest in it was purchased by Mr. Howard. Afterwards a decree was obtained by the lessor of one of the leases against Mr. Howard, and after that decree had been passed, all Mr. Howard''s interest in the land was sold under it, and purchased by the Plaintiff. The question for decision in this case is whether the lessee under each of the four leases is a permanent tenure-holder or a raiyat holding at fixed rates or an occupancy raiyat within the meaning of sec. 65 of the Tenancy Act, and the rent a first charge on the holding, or whether all the grantors of the four leases are joint-landlords within the meaning of sec. 188, and the 1,160 bighas of land one holding under them all.

The Subordinate Judge took the former view, the District Judge the latter. I think that the view taken by the Subordinate Judge is the correct one.

The grantee under the four leases is certainly the tenant of the land, and as certainly a raiyat holding at fixed rates, as he acquired the land for the purpose of cultivation, and if he is a tenant of all the land, it must, I think, follow that he is the tenant under each group of the undivided fractional share which the group has let to him, and of which it has put him in possession, but all the groups are not joint landlords of the tenant, because he has made no contract with them jointly, For this reason sec. 188 cannot apply to this case, and the only question is whether what the tenant hold under each of the four leases is either a tenure or a holding within the meaning of sec. 65.

I have no doubt it is a holding. Sec. 2, sub-sec 9, defines a holding as a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy and the argument for the Plaintiff is that the use of the words parcel or parcels of land excludes the idea that a share, though undivided, can be a holding. I do not think this is the case. The owner of an undivided fractional share in a parcel of land is the owner of that share in every part of it, and a tenant in possession of such an undivided share is the holder of an undivided share in every part of it, and is, I think, properly described as the holder of the parcel, because he is the holder of an undivided share in every part of it.

I would decree the appeal and restore the judgment of the Subordinate Judge but, as Mr. Justice Rampini is of a different opinion, the case will be laid before a third Judge.

Rampini, J.

The Plaintiff purchased a certain jote or holding in the possession of the Defendant No. 2 on the 15th July 1892 in execution of a decree for arrears of rent, The Defendant No. 1, who is owner of an eight annas of a durputni, and of two annas of a putni, of the jote, obtained a decree for his share of the rent, due from the Defendant No. 2 on the 30th March 1892. In execution of this decree he has attached and had proclaimed for sale, ten annas of the holding alleging that the Defendant No. 2 held two separate holdings, consisting of eight annas and two annas, respectively, of the original jote, purchased by the Plaintiff in 1892. The Plaintiff objected to the proposed sale on the ground that there were no such separate jotes or holdings, and that the entire jote had been purchased by him. Failing in his intervention in the course of the proceedings taken in execution of the Defendant No. 1''S decree, he has instituted this suit to have it declared that there are no separate jotes of eight annas and two annas each, on which the Defendant No. 1, as the holder of a decree for rent, has a first charge under sec. 65 of the Tenancy Act; and that the entire jote is his by right of purchase; and that the Defendant No. 1 cannot proceed against a ten annas share of it.

The Subordinate Judge dismissed the suit, holding that the Defendant No. 2 did hold two separate holdings of eight annas and two annas of the original jote. The District Judge, however, reversed the Subordinate Judge''s decision, as he was of opinion that the original holding had never been sub-divided, though the rent payable for it to the various putnidars and dur-putnidars had been distributed, and was payable in separate shares The Defendant No. 1 now appeals, and on his behalf it has been contended that the learned District Judge has mis-interpreted the documents, Exhibits H, A and R, which, it is said, show that the holding itself was sub-divided, and not merely that its rent was distributed between the co-sharer landlords.

I must premise that as the finding of the District Judge that the Defendant No. 2 never held separate holdings, and that the holding purchased by the Plaintiff has not been sub-divided is a finding of fact, it cannot be disturbed by this Court in second appeal, unless the learned Judge has clearly misinterpreted the terms of these documents, and I would add that there is unquestionably other evidence on the record besides these exhibits on this point, viz., the dakhilas for rent granted by the landlords, and applications for execution filed by the Defendant No. 1 himself. So that the determination of the question as to whether the land held by Defendant No. 2 is one holding or several holdings does not rest entirely on the interpretation of these documents.

I, however, see no reason for thinking that the learned District Judge has misinterpreted the terms of Exhibits H, A and R.

Exhibit H is a kabuliyat executed in 1259 by the predecessor of the Defendant No. 2 in favour of one of the eight-annas putnidars. It speaks of 1,150 bighas of diara land, known as Guru Prosad Sirkar, being held under a roka from the putnidars. It is said that in 1259 the executants of the kabuliyat, viz., Messrs. A. and J. Laruetta held "the whole of this land," that the rent of it was Rs. 772, and that they agreed to pay separately Rs. 386 per annum to the eight-annas putnidar for his share of the rent. This is certainly strong evidence, that the 1,150 bighas formed one holding, originally acquired for the purpose of the cultivation of indigo in the name of one Guru Prosad Sirkar, and that at the time of execution of this kabuliyat the rent only was distributed between the then landlords.

The next document A is a pattah granted to Mr. J. Laruetta on the 6th Magh (not Agrahan) 1266, by the two-annas putnidars of the holding. The total area of the whole land is given, vis., 1,160 odd bighas. The boundaries of the whole of the land are described. The lessee is enjoined to keep these boundaries intact, and a permanent lease is granted for the lessor''s share of the land, on payment of a rent of Rs. 117 odd, after deduction from Rs. 942 odd, the whole total rent of the holding of Rs. 824 odd, the rent due to the owners of the remaining 14 shares who are specified.

The other document, Exhibit R, is another pattah, dated 31st Bysack 1267, executed by the owners of the eight-annas dur-putni in favour of the same predecessor of the Defendant No. 2, viz., Mr. J, Laruetta. It is couched in similar terms to those of Exhibit A. It describes the holding as one parcel of land, gives the boundaries of this parcel, grants a permanent lease of the executants'' eight-annas share, " for the purpose of cultivating indigo and other crops thereon," and stipulates for the payment to the executants of a rent of Rs. 471 odd, being half of the total rent of the holding of Rs. 942 odd.

Both these documents, Exhibits A and R, in my opinion, support the view taken by the District Judge, that the original holding of 1,160 bighas was never subdivided, but that only the rent of it was distributed.

There is, however, one provision in the documents A and R, which, it is contended, is inconsistent with the view. Both documents contain provisions that the land within the specified boundaries " shall be surveyed at the interval of every five years." But this does not seem to me to point to the conclusion that the holding was sub-divided. Neither document contains any stipulation that the executants themselves are to be at liberty to survey the lands. The land referred to is the land within the boundaries mentioned in the pattahs, that is the whole 1,160 bighas, or, in other words, the whole holding. The measurement of this land would have to be made by all the landlords jointly. There is certainly no provision that the putnidars and dur-putnidars may each independently measure either all the lands, or the lands appertaining to the share of each, which latter step they could not take, the lands appertaining to the share of each being undivided and indistinguishable from the lands of the others. I may mention that according to Exhibit A, the rent due to its executants is to be paid quarterly, while, according to Exhibit R, the rent stipulated for is to be paid monthly, The provisions are, however, mere stipulations for the payment of the rent entered into by the parties for the convenience of the landlords. They in no way affect the question of the division or non-division of the entire holding.

Several cases have been alluded to by the lower Courts in their judgments, and have been discussed before us. The first of these is the well-known case of Gum Mahomed v. Moran ILR 4 Cal. 96. This case decides that when a tenant has agreed to pay a co-sharer landlord his share of the rent separately, he can be sued separately for arrears of such rent, but he cannot be sued for a kabuliyat, " for the grant and acceptance of a binding lease of the separate share," it is said, " cannot exist contemporaneously with the original lease of the entire jote." I do not, however, understand this decision as laying down a general rule to the effect that the granting of a kabuliyat of any kind necessarily operates as the creation of a new and separate tenancy. If it does, it is an obiter dictum, but no such rule would seem to me to be laid down in this case. Whether a kabuliyat creates a new and separate tenancy or not, and effects a sub-division of the holding or not, must, I think, depend on its terms. A kabuliyat merely stipulating for the payment of a certain share of the rent, by monthly or quarterly instalments, would not seem to me to operate as creating a new tenancy, or as sub dividing a holding, and this is all, in my opinion, that the pattahs, Exhibits A and R, provide for.

This principle that the effect to be given to a kabuliyat must depend upon its terms is apparently impliedly admitted in the case of Punchanan Banerji v. Raj Kumar Guha ILR 19 Cal. 610, which is the second of the cases referred to by the lower Courts and discussed before us. In this case, it was held upon the terms of the kabuliyats executed by the Defendant''s predecessor, that a separate tenancy had been created. But the terms of that kabuliyat were very different from those of Exhibits A and R in this case. In the kabuliyat in Punchanan Banerji''s case, (1) the area of the land, " which proportionately would belong to the Plaintiff," the co-sharer landlord, was set out. It was estimated at 661 bighas. The Plaintiff, however, on measurement, made it 711 bighas, and the Court, after measurement, held it to be 679 bighas. Now, this is exactly what Exhibits A and R in this case do not do.

As already pointed out, they give the boundaries and area of the entire holding and make no attempt to estimate the proportionate areas of land liable for the shares of the rent payable to the executants of each of them, or to specify their boundaries. Then, the kabuliyat in Punchanan Banerji''s case ILR 19 Cal. 610 gave the Plaintiff a right to measure the land, and for the reasons already given, I do not think that Exhibits A and R give such a right to the co-sharer landlords who executed them.

The case of Ranee Lalun Monee v. Sonamonee Dabee 22 W.R. 334 has also been cited by the District Judge. In this case, it has been said :--" If the evidence shows that the amounts were paid as aliquot parts of the whole rental, that would go to show that the tenure was one," that is exactly how the rent payable to each co-sharer in this case is treated in Exhibits A and R.

For these reasons, I agree with the District Judge in concluding that there was no division of holdings in this case, but merely a distribution of the rent, and that being so, the Defendant No. 1 cannot proceed to sell his eight-annas and two-annas shares of the Defendant No. 2''s holding, which was purchased by the Plaintiff in July 1892, as if they were separate and distinct jotes. Nor can he sell these shares, as a share or shares of the original holding, because, the whole jote has already been purchased by the Plaintiff, and under the Full Bench ruling in the case of Beni Madhub Roy v. food Ali Sircir ILR 17 Cal, 390, he, being a " fractional co sharer" landlord, "must pursue his remedies to recover his share of the rent under the ordinary law of the country, and independently of the Bengal Tenancy Act."

But independently of sec. 65 of the Bengal Tenancy Act, the Defendant No. 1 has no right to proceed against a share of the holding, for it is only under the provisions of sec. 65 that he can have a first charge upon a property, which is no longer the property of his judgment-debtor, but that of a third person.

I therefore consider that the Plaintiff is entitled to the declaration that he seeks for, and I would accordingly dismiss this appeal with costs.

Their Lordships having differed in opinion, the case was referred under sec. 575, C.P.C., to Banerjee. J., who delivered the following judgment:--

Banerjee, J.

This appeal arises out of a suit brought by the Plaintiff-Respondent, for a declaration of his title to a certain holding, and for an injunction restraining the Defendant No. 1 from attaching or proceeding in execution against the same. The main allegations upon which the Plaintiff bases his suit are these, namely, that the Plaintiff purchased the holding in question in August 1892 at a sale in execution of a decree for rent obtained by a co-sharer in the superior tenure, to which the holding is subordinate in respect of his share of the rent; that previous to his purchase, that is, in March 1892, the Defendant No. 1 who owns an eight-annas share in the dur-putni, and a two annas share in the putni of Taraf Kabilpur, in which the holding in question is situate, obtained a decree for arrears of rent due in respect of his said two shares; that the Defendant No. 1 having sought to sell the eight-annas and the two-annas shares, in the holding on the allegation of such shares forming two separate jotes, the Plaintiff intervened, but his intervention was unsuccessful; and that the said shares of the holding do not constitute separate jotes, and the Defendant is not entitled to bring them to sale, in disregard of the rights acquired by the Plaintiff by his purchase.

The defence was that the alleged holding of the Plaintiff was not one holding, but consisted of four separate holdings created by four separate leases granted to the Plaintiff''s predecessors in title on different dates, two by the two annas putnidar and the four-annas putnidar of Taraf Kabilpur, in Aghran 1266, one by the two-annas putnidar in Magh 1266, and a fourth by the eight-annas dur-putnidar in Bysack 1267, the rights of the last two lessors having now vested in Defendant No. 1; and the Defendant No. 1 was therefore entitled to proceed against the two tenancies, the one granted by the two-annas putnidar, and the other by the eight-annas dur-putnidar, in execution of the rent decree obtained by him; notwithstanding the subsequent purchase by the Plaintiff, the said rent being a first charge of the tenancies. It was not disputed in the Courts below, that, if the case came under sec. 65 of the Bengal Tenancy Act, the Defendant No. 1 would be entitled to proceed against the holding. But the main question was whether the case came under that section or not, the Plaintiff contending that it did not, because the leases relied upon by the Defendant No. 1 did not create separate and distinct tenancies, whilst the Defendant No. 1 contended that it did.

The Court of first instance gave effect to the Defendants'' contention, and dismissed the suit.'' On appeal by the Plaintiff, the lower Appellate Court has accepted the - Plaintiff''s contention as correct, reversed the decision of the first Court, and given the Plaintiff a decree as prayed.

Against that decree the Defendant No. 1 has preferred this second appeal, and the learned Judges who heard the appeal first having differed in opinion, the case has been referred to me under sec. 575, C.C.P. The main contention in the appeal on behalf of the Appellant is, that two tenures have been created in respect of a two-annas share and an eight annas share of certain lands in Taraf Kabilpur, by the two leases granted by the two-annas putnidar and the eight-annas dur-putnidar in Magh 1266 and in Bysack 1267; while the contention on the other side is that those two pattahs have not the effect attributed to them, and that, in any view of the case, undivided shares in parcels of land cannot constitute distinct ''holdings'' within the meaning of the Bengal Tenancy Act. It was argued for the Plaintiff-Respondent that the land was originally let out for the purpose of cultivating indigo, that the tenant was, therefore, a ''raiyat,'' and not a tenure-holder, within the meaning of sec. 5 of the Bengal Tenancy Act, that the tenancy can only be a '' holding,'' and not a tenure within the meaning of that Act, and that the definition of ''holding, '' as given in clause (9) of sec. 3, does not include an undivided share or in any way parcel or parcels of land such as goes to constitute each of the alleged separate tenancies in this case. I think this argument is sound. It is clear from the findings arrived at by the lower Appellate Court, and from the leases relied upon by the Appellant, that the tenancy or tenancies were raiyati tenancies, and not tenures; and it has never been questioned that the Plaintiff would be entitled to a decree if the case does not come under sec. 65 of the Bengal Tenancy Act. The whole question is, whether it comes under that section, or, in other words, whether what the Defendant No. 1 is seeking to proceed against in execution of his decree for rent notwithstanding the Plaintiff''s purchase, is a tenure or holding within the meaning of that section; and, as already observed, it cannot be a tenure for the simple reason that the tenancy was created for the purpose of cultivation by the tenant presumably through hired labour. The question, therefore, reduces itself to this, namely, whether the leases relied upon by Defendant No. 1 have created separate '' holdings'' within the meaning of sec. 65, or whether there is but one holding under the proprietors of the entire sixteen annas. Now, a holding is thus defined in sec. 3, clause (9)--"Holding" means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. Does this mean an entire parcel or entire parcels, or may it also include an undivided fractional share of a parcel or parcels of land ? Evidently the definition applies only to an entire parcel or entire parcels and is not intended to include an undivided share in a parcel or parcels, and the reason seems to be obvious. A '' raiyati'' holding, which from the very definition of a '' raiyat '' in sec. 5, sub-sec. 2, means land occupied by a raiyat for the purpose of cultivation, can be ordinarily held only in its entirety, and the cultivation of an undivided fractional share of a parcel of land will be ordinarily meaningless. A '' tenure, '' on the other hand, which is the interest of a tenure-holder, who, as defined in sec. 5, sub-sec. 1, is a person who has acquired a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, may relate only to an undivided fractional share in land without leading to any fractional difficulty. And it is for this reason that whilst tenure is defined as the interest of a tenure-holder or an under-tenure-holder, ''holding'' is defined not as the interest of a raiyat, but as a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. I may add that, if the definition of a holding were to include an undivided fractional share in a parcel or parcels of land, the definition would be incompatible with the provisions of secs. 121 and 122 of the Bangal Tenancy Act, which relate to the distraint of crops or other products of holdings. It was argued for the Appellant that, if this view is correct, not only would the separate tenancies created by the separate leases in this case not come under the definition of holding, but the aggregate of the tenancies created thereby would also be excluded from the definition, for the simple reason that they do not form the subject of a separate tenancy, as it cannot be said that tenancies created at different times and differing in some of their incidents constitute a " separate tenancy " within the meaning of the definition; and if that was so, tenancies of the kind in question in this suit, which are by no means, an uncommon class of tenancies, would have to be excluded from the scope of the Bengal Tenancy Act. I do not think that we are driven to such'' a consequence as that. Though the tenantcies created by the several documents are, in one sense, separate tenancies, no doubt, still, having regard to the fact that one important element for consideration, namely, the land in respect of which the tenancy or tenancies are created remains still one and undivided, we may disregard the diversity in the comparatively immaterial elements, namely, the time of creation of the tenancies and the mode of payment of the rent that occurs in the several leases, and treat them all as combining in the constitution of one tenancy, especially when we find that the rents reserved in the several leases are but the aliquot parts of a whole, such parts corresponding to the shares of the grantors of the leases. Great reliance was placed upon the case of Punchanan Banerji v. Raj Kumar Guha ILR 19 Cal. 610, as showing that the leases granted by undivided co-sharers in certain cases go to constitute distinct tenancies. That case, however, is quite distinguishable from the present, as that was a case in which the leases related, not to a raiyati holding, but to an ousut taluk or tenure. Some reliance was also placed on the case of Jardine Skinner and Co. v. Rani Sarat Sundari Debi 3 C.L.R. 140, in which their Lordships of the Privy Council held that a right of occupancy might be acquired in an undivided share in land, and also upon the case of Gur Buksh v. Jeolal Roy ILR 16 Cal. 131, in which a somewhat similar view was taken. But those cases were under the old law, Act VIII (B.C.) of 1869, which contained no definition of the term holding, such as we have in the Bengal Tenancy Act. For the foregoing reasons I agree with Mr. Justice Rampini in thinking that the Court of Appeal below was right in its decision, that what the Defendant No. 1 is seeking to proceed against are not distinct holdings within the meaning of the Bengal Tenancy Act, but are only undivided shares in a holding, and that the Defendant No. 1 is only one of a body of joint landlords That being so, I think this appeal ought to be dismissed with costs.