Mahidhar Roy and Others vs Bansidhar Roy and Others

Manohar Lall, J.—In this appeal by defendants 3, 4 and 5 the only question for determination is whether the learned Subordinate Judge was right in decreeing the suit of the plaintiffs for contribution in the following circumstances. The plaintiffs and defendant 7 are eight annas cosharers in a patni of village Banrah of which the Raja of Panchkote is the superior landlord. In the remaining eight annas one Gajadhar, the ancestor of defendants 1 to 5, who died before 1341 B. S., had 2 annas and 8 gandas share. Defendant 8 and others have 5, annas and 4 gandas share, and the remaining 8 gandas belongs to defendant 6. On Gajadhar''s death his share was inherited by defendants 1 and 2 and one Kalipado. Kalipado is the father of defendants 3, 4 and 5-the appellants before us. Upon the death of Gaja-dhar as a result of partition between defendants 1 and 2 and Kalipado the entire 2 annas and 8 gandas of the patni fell to the share of Kalipado., On 1st pous 1341, B.S., Kalipado sold his entire interest to one Abhayabala Debi by a registered kebala, and the transferee since that date is in possession. The patni rent for the years 1345 to 1347 B. S., having fallen into arrears the zemindar took proceedings under Regulation 8 of 1819 to bring the entire patni to sale. In order to avoid the sale the plaintiffs deposited on various dates from 11th July 1938 to 14th May 1941, the amount of arrears of rent and cess to the extent of two-third, and the remaining one-third was depo-sited by defendant 7 with the result that the patni taluk was saved from sale. Out of the ''amount deposited, the plaintiffs claimed Rs. 420 which is recoverable from defendants 1 to 6 as their quota. Defendant 7 refused to join as a plaintiff in this suit and therefore he has been made a pro forma defendant.

Defendants 1 and 2 and defendants 3 to 5 filed separate defence to the same effect that they have no interest in the patni taluk in question, the former from the date of the partition with Kalipado and the latter since 1st Pous 1341, B. S., the date of transfer by Kalipado to Abhayabala Debi, and, therefore, the suit was not maintainable against them. Defendant 6 did not appear in the action. The learned Munsif came to the conclusion that the plaintiffs are only entitled to sue the other cosharers in the patni taluk, excluding defendants 1 to 5 whose interest in the patni ceased before the arrears of rent for the period 13,45 to 1347 B. S. accrued due. Accordingly he decreed the suit ex parte for Rs. 60 against defendant 6, with corresponding costs and future interest, but dismissed the suit against defendants l to 5. No appeal was taken by defendant 6, nor has he appealed to this Court. The decree of the learned Munsif will, therefore, be maintained against defendant 6. In appeal, the learned Subordinate Judge came to the conclusion that defendants 1 to 5, notwithstanding their not being in possession of their share of the patni taluk are liable to contribute to the plaintiff to the extent of Rs. 360 and passed a decree to that effect. Hence the appeal by defen-dants 3 to 5 only. As defendants 1 and 2 have not appealed, the decree of the learned Subordinate Judge remains unaffected so far as they are concerned. Mr. R. S. Chatterji in an elaborate and interesting argument challenged the correctness of the view taken by the learned Subordinate Judge as a matter of law and drew oar attention to a number of authorities.

It is well-known that the patni talukdars obtained perpetual settlement of estates paying revenue to Government from the zamin-dar by entering into engagements by which their liability to pay the stipulated rent to the zamindar is governed. In order to declare the validity of these tenures and to define the relative rights of the zamindars and the patni talukdars and also to establish the principles for sale of these taluks in satisfaction of the zamindar''s demand of rent,, the well-known Regulation 8 of 1819, was promulgated on 3rd September 1819. In the preamble it is stated that by the terms of the engagements interchanged between the zamindar and the patni talukdar, it is provided that in case of an arrear occurring the tenure may be brought to sale by the zamindar and to make good the balance of rent at the time due, the remaining property of the defaulter shall be further answerable for the demand. This conclusively establishes the personal liability of those persons who entered into engagements with the zamindar (see also Section 5). By Section 3, the patni taluks are declared to be valid tenures in perpetuity according to the terms of the engagements and that they are heritable and capable of being transferred by sale, gift or otherwise at the discretion of the holder as well as answerable for his personal debts. By Section 5 the zamindar is debarred from refusing to give effect to the transfers by the holder and to discharge the party transferring his interest from personal responsibility and accept the engagements of the transferee provided he is granted a fee upon the alienation and is given a substantial security from the transferee or the purchaser to the extent indicated. By Section 6 it is made clear that the zamindar can refuse to register. any transfer until the fee above stipulated is paid and until substantial security to the amount specified is tendered and accepted. The arbitrary refusal by the zamindar to accept the fee and the security furnished is guarded against in the proviso to Section 6 which enables the party tendering the security to appeal to the civil Court. These provisions in the Regulation being so clear and specific enable us to solve the problems in this case quite easily. The patni taluq of village Banrah was admittedly in arrears for the rents due to the Raja for 1345 to 1347 B. S. The plaintiffs and defendant 7 are admittedly cosharers to the extent of eight annas and each of them deposited the amount stated in the plaint to save the patni from sale. The other cosharers are thus liable to contribute to the extent of their interest which has been saved from sale. Gajadhar had 2 annas and 8 gandas share. On his death it was inherited by defendants 1 and 2 and Kalipado. These defendants, therefore, were liable for the patni rent, and on the death of Kalipado the patni share was inherit-ed by defendants 3 to 5 so that defendants l to 5 are liable to pay the patni rent not on the ground of their being recognised by the landlord, as there is no case of transfer here, but on the ground of heritability. Mr. Chatterji argues that as Kalipado had transferred the share of Gajadhar to Abhayabala Debi in 1341 B. s., how can the sons of Kalipado be liable to pay rent when they were not in possession? The short answer to this argument is that the transfer by Kalipado to Abhayabala Debi although binding between the transferor and the transferee is not any transfer in the eye of law so far as the zamin-dar is concerned. Kalipado and after his death his sons remained personally liable to pay the patni rent. Mr. Chatterji at one stage of his argument suggested that there was no personal liability of Gajadhar or his sons to pay patni rent. But the quotations from the preamble and from Section 5 given above negative this contention.

I now proceed to deal with the cases relied upon by Mr. Chatterji Peary Mohun v. Kumaris Chunder Sirkar (92) 19 Cal. 790. This case decides that the heirs of an occupancy raiyat, dying intestate, are liable to pay rent, whether they occupy the land or not, until they surrender the holding to the landlord. I do not see how this case helps the appellants. On the contrary it establishes the proposition . that the liability to pay rent is a liability of the heirs of an occupancy raiyat even though they may not be in possession. Karim Chowkidar v. Sundar Bewa (97) 24 Cal. 207. The headnote runs that the right of a non-occupancy raiyat (who does not hold under any express engagement) is not heritable and reliance was placed upon the concluding passage of the judgment at p. 211:

The non-heritability of non occupancy raiyat''s rights may cause loss to the landlord, as well as to the non-occupancy raiyat''s heirs; for it has been held that occupancy rights being heritable the heirs of an occupancy raiyat are liable for the rent of their predecessors'' land whether they occupy it or not: 19 Cal 790.1 But if non-ocoupanoy raiyat''s rights are not heritable, their heirs who did not enter on occupation cannot be held liable by the landlords for the rent of the lands, and the landlords may consequently lose money.

Again I do not see how this case helps the appellants Aosub Ali v. Bisseshuri (08) 8 C. L. J. 554. In this case it was held that the purchaser of a share of a patni acquired a valid title in the property although his purchase is not recognized by the zamindar and that he is not exempted from liability for rent jointly with the transferor if the landlord chooses to recognize him as one of the joint holders of the patni. It was also pointed out that Section 6, Patni Regulation, only prevents splitting of the tenure and Apportionment of the rents without the sanction of the landlord. In my opinion, this authority is also against Mr. Chatterji because although it recognizes the validity of the transfer as between the transferor and the transferee in the share of a patni, it establishes conclusively that the transferor still remains liable to pay the rent of the zamindar.

Mr. Chatterji then took us through a number of provisions of the Transfer of Property Act relating to-the liability to pay rent by a lessee and the transferee of the lessee to the lessor and argued that unless there is a privity of estate and a privity of contract the landlord is not entitled to sue. He applied that analogy in this way. In the present case defendants 3 to 5 were not in possession and, therefore, there was no privity of estate between them and the Raja to enable the latter to sue them for arrears of rent. In my opinion this analogy is fallacious. Section 108 (j), T. P. Act, provides that the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it, and the lessee shall not, by reason only of such transfer cease to be subject to any of the liabilities attaching to the lease. Argument from analogy is always dangerous and it is worse than useless to construe the meaning of one section in one Act from the true mean, ing and effect of another section in another Act. But even if it is permissible "to do so, Section 108 (j) is against the contention of Mr. Chatterji because it distinctly provides that notwithstanding the transfer the lessee does not cease to be subject to any of the liabilities attaching to the lease. Therefore, it follows, in my opinion, that notwithstanding the transfer by Kalipado to Abhayabala Debi he did not cease to be liable to the Raj for the rent for the patni that he inherited from Gajadhar.

It was then argued by Mr. Chatterji that even if it is assumed that Kalipado had a personal liability to pay the rent, that personal liability cannot descend on defendants 3, 4 and S when they are not in possession of the patni. In a sense it is the same argument over again. The personal liability of Kalipado to pay the rent does not disappear by the transfer as I have just stated. Therefore the personal liability must descend to the heirs of Kalipado who have inherited his share of the patni in the eye of law. Mr. Chatterji today took the objection that no personal decree can be passed in any event against defendant 5, who is a minor. He drew our attention to his description under the guardianship of the guardian in the memorandum of appeal to this Court. On 17th November 1913 after the appeal had been filed to this Court, the appellants'' advocate stated to the Registrar that in the decree appellant 3, that is defendant 5, had been wrongly described as a major whereas he is really a minor. Thereupon the decree was directed to be sent down to the Subordinate Judge f6r correction. On 4th February 1944 the copy of the decree which was sent down, for correction was received back without correction, with a note that this appellant had all along been described as a major. We have seen the plaint, the decree of the trial Court and the decree of the appellate Court. In all these three documents defendant 5 continues to be described as a major. No objection ever appears to have been raised in the Courts below, either in the written statement or at the time of the trial or at the time of the argument before the appellate Court, that this appellant has been wrongly described as a major. Therefore this argument must be overruled.

Mr. Chatterji drew our attention to some observations in the well-known commentary of Williams on Executors in order to fortify his submission that the heirs of Kalipado cannot be held personally liable. In my opinion, the argument from this analogy of Williams on Executors is not well-founded. I have already held that the heirs of Kalipado in the circumstances of this case must be held . to'' be liable. Mr. Chatterji relied upon the case in Lakshmi Narayan Roy v. Girja Shankar 42 C. w. N. 1088 where it was stated that a landlord cannot recover rent from one only of the heirs of the deceased when he admits an assignment of the lands to a third party though unrecognized and does not prove, which it lies on him to prove, that such assignee is not in possession, but the defendant is. This case was decided under the provisions of the Transfer of Property Act whereas the question before us arises upon a consideration of the Patni Regulation. Moreover, in the present case, it is not only one of the heirs of Kalipado who is sought to be made liable by the plaintiffs, but they seek contribution from all the heirs of Kalipado.

For these reasons I overrule the first contention of Mr. Chatterji. It was then argued that the suit is not maintainable under the provisions of SB. 69 and YO, Contract Act, because the appellants were not bound to pay the rent due to the zamindar and they have not been benefited in the least by the payment made by the plaintiffs, and reliance was placed upon the cases in Batuknath Mandal v. Bepin Behari (13) 17 C. L. J. 179 and Roja Sellappa Reddy v. Vridhachala Reddi (07) 30 Mad. 35 . In effect it was suggested that the money was voluntarily paid by the plaintiff. But I have already held that under the Patni Eegulation all the defendants including defendants 3 to 5 were bound to pay the patni rent because they all inherited their share in the patni taluk from Gajadhar and Kalipado. Las''tly it was contended that the suit of the plaintiff was not maintainable as this is a suit by the plaintiff only for his share of the amount which was deposited by the plaintiff and defendant 7 in order to avoid a threatened sale of the patni and reliance was placed upon the case in AIR 1934 58 (Privy Council) . But the facts of that case have no application to the present situation where it has been found, to quote from the judgment of the learned Munsif, that "the plaintiffs in the present case have clearly alleged in their plaint that out of the total amount deposited by them and the pro forma defendant 7 to save the patni taluk from sale 2/3rd was deposited by them and l/3rd by the pro forma defendant 7."

All the contentions of the appellants are, therefore, overruled. I would dismiss this appeal with costs.

Das, J.

I agree.