Raja Jha vs Ramchandra Jha and Others

Harries, C.J.—This is a defendant''s appeal from a decree of the learned District Judge of Darbhanga reversing a decision of the learned Munsif and decreeing the plaintiff''s claim for a declaration and possession of certain property.

To appreciate the points involved in the case, it will be necessary to set out the facts in some detail. Musan and Mahesh were two brothers who held a holding of 7 bighas, 17 kattas, 1 dhur. In the record of rights, however, the holding was recorded in the name of these two brothers and Maksudan; but both the lower Courts have come to the conclusion that Maksudan was not a joint owner of the holding but was some kind of transferee of a very small portion of 6 kattas odd by sale or gift or some such like transaction. Mahesh died issueless, and the holding was inherited by Musan. On 81st January 1905, Musan sold 1 bigha 10 kattas of this holding to Jag. mohan Misser. On 81st May 1927, the father of plaintiffs 1 to 10 took a usufructuary mortgage of this 1 bigha 10 kattas of land from Eajkant Misser, who were the heirs of Jagmohan Misser.

In the year 1929 or thereabouts Musan died leaving his son Abhinandan and a grandson, Sitaram, a son of deceased son Harikrishun. In the year 1930 after the death of Musan the Darbhanga Raj who were the proprietors of the land in question brought a rent suit against Abhinandan and Sitaram and obtained a decree. It appears that Abhinandan had a minor son Kamlakant who was not impleaded in this suit. Maksudan also was not impleaded, neither were the plaintiffs 1 to 10 who held a usufructuary mortgage of the 1 bigha 10 kattas which had been sold to Jagmohan Misser. The holding was sold in execution of this decree and was purchased by the defendant appellant some time in 1933, and a sale certificate was granted to him, which is dated 11th May 1934. Delivery of possession was actually given to the defendant appellant on 26th July 1934.

The plaintiffs who were the usufructuary mortgagees of 1 bigha 10 kattas instituted the present suit on 2nd July 1937, for a declaration that they were entitled to the 1 bigha 10 kattas as usufructuary mortgagees and for possession of the same. They pleaded that the decree obtained by the Darbhanga Raj was not a renh decree but a simple money decree, because neither Kamalakant nor Maksudan who were interested in the tenancy were made parties nor were the mortgagees or mortgagors made parties. Accordingly they contended that the decree obtained in the absence of these interested and necessary parties was a simple money decree and that the sale in execution of that decree passed only the interest of the judgment-debtors and not the whole interest in the holding.

The interest of the plaintiffs, therefore, did not pass by the execution sale and, therefore, they were entitled to possession as against the defendant-appellant who purchased in that sale. The defendants pleaded that Maksudan had no interest in the holding itself and that he had been wrongly recorded in the record of rights. They also pleaded that Kamlakant had not been born at the date of the rent suit, and in any event if he was alive he was sufficiently represented by his father. As to the mortgagors and the mortgagees, the defendants pleaded that these transfers had not been recognized by the landlord, and, therefore, they were not necessary parties to the suit as the law stood at the time the rent suit was instituted.

The trial Court held that Maksudan had no interest in the holding, but if he had any interest it was only an interest in 6 kattas odd by some kind of transfer. As that transfer had never been recognized by the landlord he was not a necessary party to the rent suit when it was instituted. As to Kamlakant, the learned Munsif held that he was alive when the suit was instituted, but that he was sufficiently represented by his father. As to the others, namely, the mortgagors and the mortgagees, they were not the necessary parties as the transfers had never been recognized by the landlord.

Upon these findings, the learned Munsif was satisfied that all the persons interested in the holding had been made parties and that the decree obtained was a rent decree in the true sense of the term. The holding, therefore, passed by the sale in execution of the decree, and the plaintiffs could not recover possession as against the defendant appellant who had purchased the whole of the holding. He, therefore, dismissed the plaintiffs'' claim.

On appeal, however, the lower appellate Court reversed the finding of the learned Munsif holding that the decree was not a rent decree but only a simple money decree. The learned Judge appears to have agreed with the learned Munsif that Kamlakant was sufficiently represented and that Maksudan was only some kind of transferee in respect of G kattas odd in this property.

The learned District Judge, however, was of opinion that Maksudan and the transferees of this 1 bigha 10 kattas were necessary parties to the suit. He relied upon Section 26N, Bihar Tenancy Act, which was expressly made retrospective. The learned District Judge was of opinion that with regard to those transfers the consent of the landlord would have to be presumed, and'' that being so, they were, when the suit was instituted, necessary parties, and as they had not been impleaded the decree was only a money decree, and the plaintiffs'' interest in the property was not affected by the sale in execution and the purchase by the defendant-appellant. He, therefore, gave the plaintiffs the declaration asked for and possession of the 1 bigha 10 kattas which was in dispute.

Counsel for the appellant has contended'' that the learned Judge was wrong in holding that Maksudan and the transferees of the 1 bigha 10 kattas odd were necessary parties at the time when this rent suit was instituted and decreed. He has contended that Section 26N, Bihar Tenancy Act, as it then was, though expressly made retrospective, cannot possibly affect the position because the rent decree was obtained and fully executed and possession obtained by the appellant before this section came into force. He has conceded that the Act which was made retrospective would affect existing rights which had not already been made the subject of litigation and would affect rights which were the subject of litigation when the Act came into force. He, however, contends that the Act cannot affect decrees validly obtained before the Act came into force and the execution of such decrees which had been completed before the amendment was made in the law.

Section 26N was introduced into the Bihar Tenancy Act by the Bihar Tenancy (Amendment) Act 1934. The assent of the Governor-General to this Act is dated 14th November 1934, and by Section 1(2) of the Act it was provided that it should come into force on such date as the Local Government might by notification appoint. It actually came into force by notification on 10th June 1935. Section 26N, which was then introduced'' into the statute, was in these terms:

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.

Section 26-O which was introduced into the Act, by the same Amending Act provided that in the case o� a transfer made on or after the first day of January 1923, but before the date of the commencement of the Act, the transferee might pay to the landlord or deposit with the Collector a transfer fee as therein particularised and upon his complying with this condition the consent of every person claiming an interest as landlord in the holding or portion transferred should be deemed to have been given to the transfer. The Act contained no saving clause modifying the effect of Sections 26-N and 26-0.

In AIR 1936 49 (Privy Council) , their Lordships of the Privy Council had to consider the effect of these sections. They held that Sections 26-N and 26-0, Bihar Tenancy Act, are expressed and intended to have retrospective action and there being no saving clause, they were applicable to pending suits. The finding of the learned District Judge is that Section 26-N being retrospective applies to the facts of this case and, therefore, the landlord must be deemed to have consented to the transfer to Maksudan and to Jagmohan Misaer, as those transfers were made before 1st January 1923. Those persons, therefore, must now be regarded as persons who should have been impleaded as defendants in the rent suit, and as they were not impleaded the decree obtained was not a rent decree but only a simple money decree.

In my judgment though Section 26-N, 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) Sir George Rankin observes as follows:

Section 26(N) is not a provision to the effect that no action shall lie in certain circumstances, nor had 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 two 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.

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 26-N cannot affect the rights of the defendant appellant who had purchased this property in execution proceedings which were perfectly lawful at the time and he had obtained possession as a result of those proceedings. Had the proceedings been pending when the Amending Act came into force, different considerations might well have applied. That being so, the defendant-appellant had acquired a good title to the 1 bigha 10 kattas of land now claimed by plaintiffs and the latter''s claim should, in my view, have, been dismissed.

I would, therefore, allow this appeal, set aside the decree of the learned District Judge and restore the decree of the learned Munsif dismissing the suit. The defendant appellant must have the costs of this Court and of the proceedings in the Courts below.

Certain minor defendants have been impleaded as respondents in this case and counsel who has appeared on their behalf has supported the case of the defendant appellant. The plaintiff''s claim must be dismissed in its entirety not only against the defendant appellant but also against these minor defendants who are in the array of the respondents.

Manohar Lall J.

I agree.