Raja Pirthvi Chand Lal Chaudhury and Others vs Rani Prabhabati Ji Saheba and Others

Fazl Ali, C.J.—This is an appeal from the judgment and decree of the Subordinate Judge of Purnea in a suit instituted by the plaintiffs-respondents (who for the sake of brevity may be described as proprietors of Raj Banaili) to recover possession of a darpatni tenure known as Saara Basethi. The suit has been decreed in favour of the plaintiffs by the learned Subordinate Judge and three of the defendants (defendants 1 to 3) have preferred this appeal. The facts of the case are somewhat complicated, but I shall state them very shortly in order to elucidate the main points which arise for decision in this appeal. The disputed properties are situated within parganah Haveli of which the appellants are admittedly the zamindars. It appears that sometime in 1854, one of their predecessors-in-interest Raja Pratap Singh, created within this parganah a patni tenure consisting of several mauzas known as Lat Meerzapur Khoparia. This patni tenure in course of time came to be owned and possessed by one Chhatrapat Singh and afterwards by one Rani Mina Kumari and lastly by her son Maharaj Bahadur Singh. The darpatni tenure with which we are concerned in this case was held under the above patnidars by certain persons who may be described as the Kumars of Srinagar and was purchased by the plaintiffs in the following circumstances.

The Kumars of Srinagar (darpatnidars) had borrowed a sum of Rs. 6,57,000 from the proprietors of Banaili Raj and to secure the said loan had mortgaged among other properties their interest in this darpatni tenure. A part of this debt was paid off by the darpatnidars by executing two subsequent mortgage bonds in 1912 and 1915 respectively in favour of defendant 1; but as the entire debt was not paid off the proprietors of Banaili (the plaintiffs) brought a suit to enforce their mortgage and in execution of the decree which they obtained purchased the darpatni on 24th March 1931 and obtained dakhaldehani through Court on 1st March 1932. The plaintiffs'' case is that after the dakhaldehani the defendants without any justification began to interfere with their possession and inasmuch as in the dispute which followed the criminal Court made certain orders against them they were compelled to institute the present suit to establish their title to and recover possession of the darpatni property which according to them had been wrongfully taken possession of by the defendants. The defendants, as I have already stated, are the zamindars of parganah Haveli and their main defence is that the darpatni tenure no longer subsists because the darpatni interest came to an end upon the sale of the patni tenure (to which the darpatni tenure was subordinate) for arrears of rent. They refer to two such sales to which reference will be made presently and rely upon certain provisions of the Patni Regulation (8 of 1819) under which they say the under-tenures are automatically annulled upon the sale of the superior tenure for arrears of rent.

Regulation 8 of 1819, otherwise known as the Patni Regulation, purports: (1) to declare the validity of certain tenures (2) to define the relative rights of zamindars and patni talukdars and (3) to establish a process for the sale of patni taluks in satisfaction of the zamindar''s demand of rent. This Regulation describes in its preamble what a patni tenure is and then proceeds to say

it hag been a common practice of the holders of them to underlet on precisely similar terms to other persons, who on taking such leases went by the name of darpatni talukdars.

Section 8 of the Regulation declares the right of the zamindars to apply in the manner stated in the Regulation for periodical sales of

any tenures upon which the right of selling or bringing to sale for an arrear of rent may have been specially reserved by stipulation in the engagements interchanged on the creation of the tenure.

The procedure for the sale is set out in Clause (2) and (3) of this section and briefly amounts to this that the zamindar on the first day of Bysakh or on the first day of Kartik may present a petition to the Collector containing a specification of his dues from the patnidar and thereupon the petition is to be stuck up in some conspicuous part of the cutcherry with a notice that if the amount claimed is not paid before the first day of Jeth or Asm following, as the case may be, the tenure of the defaulter would on that day be sold by public sale in liquidation of the arrears.

Sections 9 and 10 contain certain provisions as to the mode in which the sale is to be conducted and Section 11 which is the most important section for the purpose of this appeal, provides, firstly, that when any taluk is disposed of at a public sale under the rules of the Regulation for arrears of rent due on account of it, it shall be sold free of all incumbrances that may have accrued upon it by act of the defaulting proprietor or his representatives and no transfer by sale, gift or otherwise and no mortgage or limited assignment shall ordinarily be permitted to bar the right of the zamindar to hold the tenure answerable, in the state in which he created it, for the rent; and, secondly, that in like manner on sale of a taluk for arrears, all leases originating with the holder of the former tenure, if creative of a middle interest between the resident cultivators and the late proprietor, must be considered to be cancelled. These provisions clearly contemplate that when a patni tenure is sold by the zamindar under the Regulation for arrears of rent, the sale has the effect of wiping off the incumbrances as well as an under-tenure such as darpatni, and the zamindar is entitled to purchase the property in the state in which it was when he created the patni. Clause (1) clearly states that the consequences set out therein are to follow upon a sale under the Regulation for arrears of rent and though the words which occur in that clause are not repeated in Clause (2), I have no doubt that that clause also was intended to apply only to a sale under the Regulation.

There are also provisions for the sale of a patni tenure in the Bengal Tenancy Act but there are the following essential points of difference in the procedures laid down respectively in the Patni Regulation and the Bengal Tenancy Act: (1) Under the Bengal Tenancy Act a zamindar need not confine his claim to one year''s rent only but may sue for the rent of four years, whereas under the Patni Regulation he must apply to the Collector either on 1st Bysakh or on 1st Kartik and his application is to be confined only to the dues of the previous year or part of the current year only. (2) The procedure for the sale of the tenure provided in the two enactments is different and (3) whereas under the Patni Regulation the under-tenures and incumbrances are wiped out automatically when a sale is held under that regulation, under the Bengal Tenancy Act the purchaser at the sale has to move the Collector to serve on the incumbrancer a notice declaring that the incumbrance is annulled. The same procedure is to be followed for avoiding an under-tenure, because Section 161 of the Act, defines the term "incumbrance" so comprehensively as to include an under-tenure also.

I will now set out the circumstances under which the two rent sales relied upon by the defendants took place. The first sale took place in execution of a decree obtained by the defendants againat the patnidars in Kent Suit No. 32 of 1915. The decree was passed on 3rd December 1913 and the patni mahal was purchased by one Rani Mina Kumari in execution of that decree on 27th March 1916. After the sale was confirmed on 15th February 1917, the Rani moved the Collector for issuing notices u/s 167, Ben. Ten. Act, for the annulment of the darpatni tenure in dispute and such notices were directed to be issued on 20th March 1917 to Kumar Kalikanand Singh and two minor sons of Kumar Kamlanand. The defendants'' case is that towards the end of 1917, a peon went with these notices to the residence of the Kumars and hung them up there. On 11th March 1917, the Collector noted in his order-sheet--"Notices hung up on 9th March 1917. Note in the register and file." The other suit (No. 9 of 1920) was brought by defendant 1 against the patnidar in 1920 and it ended with a compromise decree being passed in his favour on 30th March 1922. In 1924, defendant 1 started execution proceedings and purchased the patni mahal at the execution sale on 4th June 1925. In May 1929, he f obtained delivery of possession in respect of this mahal.

Now the appellants have put forward two alternative contentions on the basis of these sales. Their first contention is that the darpatni tenure was automatically wiped out by the first rent sale which was held in 1916 and even if for some reason or other it is supposed to have survived that sale, it should be deemed to have been wiped out by the second sale which was held in 1925. They contend that the true effect of the provisions of the Patni Regulation is that whenever a patni tenure is sold for arrears of rent, the under-tenure is ipso facto annulled, whether the zamindar proceeds under the Regulation or under the Bengal Tenancy Act, because if it is the indefeasible right of the zamindar to get the patni tenure free from all incumbrances or under-tenures as declared by Sections 11 and 12 of the Patni Regulation, such a right cannot be held to be dependent on any particular procedure provided for the sale of the tenure. The appellants also alternatively contend that in any case the darpatni came to an end upon the notices u/s 167, Ben. Ten. Act, being served by Rani Mina Kumari on the Kumars of Srinagar after she had purchased the patni in 1916.

It appears that the point which is raised on behalf of the appellants directly arose in P.C. La Chaudhury v. Gulzar Ali A.I.R.1934 Pat.110 which decides that the effect of sale of the patni interest in execution of a decree for rent payable by the patnidar is to cancel the darpatni tenure, if any, and whether the landlord took proceedings successfully or unsuccessfully for the annulment of the darpatni tenure u/s 167, Ben. Ten. Act, does not affect the consequences of the sale of the patni tenure enacted by the Patni Regulation. In that case which also related to Lat Meerzapur the zamindar had sued the patnidar for arrears of his rent and had in execution of his decree which he subsequently obtained put to sale and purchased the tenure. As the suit had been brought under the Bengal Tenancy Act and the execution proceedings had also been taken under the provisions of the same Act, he applied to the Collector u/s 167 of the Act for a notice annulling a darpatni, but it was not disputed that the proceedings were void because they were not taken in time. The landlord, however, fell back on the Patau Regulation and contended that the darpatni was cancelled when he took the unequivocal step of applying for cancellation. Sir Courtney-Terrell C.J. who delivered the judgment in that case referred with approval in the course of that judgment to the following observation made by a Bench of the Calcutta High Court in Durlav Chandra v. Jamiruddin Ahmad A.I.R.1926 Cal.314:

The Bengal Tenancy Act does not, in view of the provisions in Section 195(e), affect the rights of patnidars under the Patni Regulation and so the rights of the parties have to be determined under it. The plaintiff has doubtless in the present case based his cause of action on the Bengal Tenancy Act, but if his right to recover possession is found to exist under some other provision of law it would be sacrificing substance to form to deny him such right.

He then proceeded to observe as follows:

It is argued that proceedings under the Patni Regulation, could only be taken for one year''s rent and that there was a difference between annulment under that enactment and annulment under the Bengal Tenancy Act. At the date of the Patni Regulation all proceedings against patnidars were governed by it. It is true that by the Rent Act of 1859, a further process was introduced for proceedings for rent and for annulment of intermediate tenures but these were in addition to and not in substitution for the proceedings under the Patni Regulation in relation to patni tenures. The Bengal Tenancy Act again developed and expanded such proceedings and by Section 195, Bengal Tenancy Act

Nothing in this Act shall affect any enactment relating to patni tenures, in so far as it relates to those tenures.

The effect on a darpatni interest of a sale of the patni interest in execution of a decree for the rent payable by the patnidar has been the subject of discussion in many cases which were finally reviewed in the authoritative decision of Sir Lawrence Jenkins C.J. in Srimati Krishna Pramada Dassi v. Dwarka Nath Sen (1913) 17 C.W.N.1092 and it was held that the effect of the sale was to cancel the intermediate tenures if any.

This case as well as the case in Durlav Chandra v. Jamiruddin Ahmad A.I.R.1926 Cal.314 to which reference was made by Courtney-Terrell C.J. in his judgment undoubtedly support the appellants'' contention but the learned Judges who heard the present appeal in the first instance were of the e opinion that the point involved in it is not free from difficulty and accordingly referred the whole case to a Full Bench. In my opinion also the point is of great difficulty and requires careful consideration.

Now, it is beyond controversy that when a zamindar purchases a patni tenure in execution of a decree for arrears of rent due in respect of that tenure, he is entitled to get it free from all incumbrances and such under-tenures as may have been created by the holder of the tenure. On this point there is no difference between the Patni Regulation and the Bengal Tenancy Act. It is, however, to be remembered that the Patni Regulation (8 of 1819) is a self-contained enactment and contains clear provisions relating to the procedure which the zamindar has to adopt for the purpose of realising his rent. In the first place there is, as I have already stated, no provision in the Regulation for recovery of arrears of rent for more than a year; secondly, Section 8 lays down a distinct procedure which requires the zamindar to stick up his petition claiming arrears in a conspicuous part of the cutcherry along with a notice drawn up in the manner provided in the Regulation; thirdly, Section 13 enables the holder of a taluq of the second degree (such as a darpatnidar) to save his tenure from "the ruin that must attend the sale of the superior tenure." Sub-section (2) of this section provides:

Whenever the tenure of a taluqdar of the first degree may be advertised for sale in the manner required by Clause (2) and (3) of Section 8 of this Regulation, for arrears of rent due to the zamindar, the taluqdars of the second degree, or any number of them, shall be entitled to stay the final sale, by paying into Court the amount of balance that may be declared due by the person attending on the part of the zamindar on the day appointed for sale; in like manner they shall be entitled to lodge money antecedently, for the purpose of eventually answering any demand that may remain due on the day fixed for h the sale, and, should the amount lodged be sufficient, the sale shall not proceed, but, after making good to the zamindar the amount of his demand, any excess shall be paid back to the person or persons who may have lodged it.

Then Sub-section (4) declares that:

Such deposit shall not be carried to credit in, or set against, future demands for rent, but shall be considered as a loan made to the proprietor of the tenure preserved from sale by such means, and the taluq so preserved shall be the security to the person or persons making the advance, who shall be considered to have a lien thereupon in the same manner as if the loan had been made upon mortgage; and he or they shall be entitled, on applying for the same, to obtain immediate possession of the tenure of the defaulter in order to recover the amount so advanced from any profit belonging thereto.

The special privilege which has been conferred by Sub-section (4) has been described by the Privy Council as a "statutory salvage lien" created by the Regulation in favour of the holder of an under-tenure and it is apparent that none of the above provisions can be availed of by him, unless a sale is held under the Regulation. Fourthly, section H gives the right to have the sale reversed by means of a suit to any party desirous of contesting the right of the zamindar to make the sale and fifthly, Section 15 deals with the manner in which possession is to be delivered to the purchaser and provides among other things that

a proclamation shall issue under the seal of the Court and signature of the Judge declaring that the new incumbent having, by purchase at a sale for arrears of rent due to the zamindar, acquired the entire rights and privileges attaching to the tenure of the late talukdar, in the state in which it was originally derived by him from the zamindar and that he alone will be recognised as entitled to make the zamindari collections in the Mufiassil and no payments made to any other individual will on any account be credited to the raiyats or others in any suit for rent.

It further provides that should the late incumbent or his late under-tenant continue to oppose the entry of the new purchaser notwithstanding the issuing of such a proclamation or should there be reason to apprehend, a breach of the peace on the part of any one, the aid of the police officers who may be at hand and capable of affording assistance shall be given to the new purchaser on his presenting a written application for the same; and in the event of any affray or breach of the peace occurring, the entire responsibility shall rest with the party opposing the lawful attempt of the purchaser to assume his rights.

The points to be noted so far as this last section is concerned are: (1) that it provides that the fact that an under-tenure stands annulled is to be duly notified by proclamation issued under the seal of the Court and the signature of the Judge and (2) that the proclamation to be made under this section virtually takes the place of a document of title so far as the purchaser is concerned, as it has to state among other things that the purchaser will take the patni-tenure free of all incumbrances and under-tenures. These provisions are important, because while they give on the one hand to the zamindar the right to have a patni tenure sold free of incumbrances and under-tenures, they also on the other hand protect the holders of the subordinate taluks (such as a darpatnidar) by insisting on due publication of the terms of the sale and thereby enabling such holders to take steps to stay and prevent the sale and to obtain "a salvage lien" upon the superior tenure itself by the payment of the arrear which in no case, if the zamindar proceeds under the Regulation, is allowed to accumulate for more than a year. The last provision was probably intended to protect such holders of the under-tenures as might not be able to pay more than a year''s rent of the superior tenure to save their under-tenure. The Bengal Tenancy Act is an equally self-contained statute and has its own procedure for the recovery of arrears of rent and for holding sales for the purpose of realising the decree obtained for such arrears. One of the essential provisions in that Act is that if the purchaser of a tenure at a rent sale wants to avoid an incumbrance or under-tenure, he must make an application to the Collector as provided u/s 167 within a certain time. The importance of this procedure has been emphasised in a number of cases in which it has been held that if such an application is not made, or if it is made more than a year after the point of time specified in the section, then the incumbrance or under-tenure is not annulled but continues to subsist. The Bengal Tenancy Act further does not limit the zamindar to one year''s arrears, but makes it possible for him to sue for several years'' arrears at the same time.

Now, the Patni Regulation is still in force Q and Section 195(e), Ben. Ten. Act, lass down that "nothing in this Act shall affect any enactment relating to patni tenures in so far as it relates to those tenures." In my opinion this provision simply means that the Patni Regulation is still in force and that notwithstanding the enactment of the Bengal Tenancy Act it is open to any zamindar to proceed to realise his rent according to the provisions of that Regulation. It follows therefore that both these enactments--the Patni Regulation and the Bengal Tenancy Act--exist side by side; that each of them has its own provisions relating to the realisation of rent in respect of patni-tenures and that a zamindar is at liberty to proceed either under the one or the other for the purpose of recovering arrears of rent from the defaulting patnidar. This being so, it must, in my opinion, follow as a logical consequence that if the zamindar elects to proceed under the Bengal Tenancy Act, then in order to cancel a darpatni, he must proceed u/s 167 of the Act; but if on the other hand he wishes to proceed under the Patni Regulation, then he must conform to the provisions of Sections 8, 11 and 15, etc., of that Regulation in order to put an end to the darpatni tenure. Each of these enactments contains a special procedure for annulling the under-tenures which would have been wholly unnecessary, if the under-tenures were annulled automatically upon the sale of the superior tenure. As I have already pointed out, it has been held in a number of cages that non-compliance with Section 167, Ben. Ten. Act, saves the under-tenure from annulment. If these cases have been correctly decided then non-compliance with Sections 8, 11 and 15, etc., of the Patni Regulation must have the same effect, because for some reason or other the two enactments not only affirm the zamindar''s right of annulment but also contain distinct provisions as to how that right is to be enforced. Section 195, Ben. Ten. Act, was never meant to lay down that Section 167 is not applicable to a patni tenure even where proceedings are taken under the Bengal Tenancy Act, nor was it meant to lay down that a zamindar can claim the full benefit of the Patni Regulations without following the procedure laid down in that Regulation. As the procedures laid down in the two enactments are quite distinct, it will in my opinion be wrong to hold that Section 195 sanctions a hybrid course or that it makes the procedures respectively laid down in the two enactments interchangeable. As to why so much importance should be given to procedure only, one possible answer seems to be that there is nothing wrong in principle in insisting on a strict compliance with a procedure which results in the effacement of a valuable right.

The view which I have taken is supported indirectly, by the decision of the Privy Council in Ananda Gopal Gossain v. Nafar Chandra Pal Choudhuri (1914) 18 C.W.N.259. In that case the Subordinate Judge had dismissed a suit by a plaintiff who, having purchased certain patni tenures which had been sold in execution of rent decrees, claimed to recover khas possession on the ground that the darpatni tenures created by the patnidar had been annulled by the service of notices u/s 167, Ben. Ten. Act, upon them. The suit was dismissed'' by the Subordinate Judge on the ground that the notices had not been properly served but the Privy Council hold that

notices had been served in the manner prescribed for the service of summons on a defendant under the Code of Civil Procedure.

Now it seems to me that if under the law a darpatni tenure is automatically annulled upon the sale of a patni tenure for its own arrears, whether held under the Bengal Tenancy Act or the Patni Regulation, and recourse to Section 167 is immaterial, that should have been the main ground of decision in the case and it was not necessary either for the High Court or the Privy Council to decide whether the notices u/s 167 had been duly served, e The learned advocate for the appellants drew our attention to Brindabun Chunder Sircar v. Brindabun Chunder Dey Chowdhry (1974) 1 I.A.178. In that case a patni tenure was sold for arrears of rent under Act 10 of 1859, and yet it was held that the effect of the sale of such a taluq for arrears of rent was to destroy all incumbrances which had been created by the patnidar including the darpatni tenure. That case, however, was decided with reference to Section 105 of Act 10 of 1859 which was to the following effect:

If the decree be for an arrear of rent due in respect of an under-tenure, which, by the title deeds or the custom of the country, is transferable by sale, the judgment creditor may make application for the sale of the tenure, and the tenure may thereupon be brought to sale in execution of the decree, according to the rules for the recovery of arrears of rent due in respect thereof, contained in any law for the time being in force.

As the Patni Regulation was one of the laws in force, therefore, their Lordships held that the effect of the above provision and also probably of Regulation 1 of 1820 was that the darpatni was destroyed. If there had been any provision in the Bengal Tenancy Act similar to and as comprehensive in terms as Section 105 of Act 10 of 1859, the same result would have followed. But Section 195 of the Ben. Ten. Act, does not go so far as Section 105 of Act 10 of 1859. Regulation 1 of 1820 also does not apply to this case, because it merely provides that certain sales which could not be field under the Patni Regulation might be conducted in the mode prescribed by that Regulation. In the present case the sale was not held according to the mode prescribed by Regulation 8 of 1819. As to the decision of Lawrence Jenkins, C.J., in Srimati Krishna Pramada Dassi v. Dwarka Nath Sen (1913) 17 C.W.N.1092 to which Courtney-Terrell, C.J., has referred, it is enough to point out that the sale was held in that case also under the rules laid down in the Patni Regulations. The question which we have to consider is whether the rules laid down in the Patni Regulations would apply even though the sale was not conducted under these rules but was conducted under the Bengal Tenancy Act. With great respect I dissent from the view taken in P.C. La Chaudhury v. Gulzar Ali A.I.R.1934 Pat.110 and the appellants'' contention that the darpatni was automatically annulled by the sales held in 1916 and 1920 must be negatived.

The next question to be considered is whether the notices u/s 167 which were issued at the instance of Rani Mina Kumari in 1917 were duly served upon the darpatnidars. It appears that in March 1917 Rani Mina Kumari applied to the Collector for a notice regarding the annulment of the darpatni interest (vide Ex. H) and the order-sheet of the Collector shows that notices were ordered to be issued. These notices were addressed to Kumar Kalikanand Singh and the two minor sons of one Kamlanand Singh, deceased, under the guardianship of their uncle Kumar Kalikanand Singh. Both these notices were said to have been served by a peon named Kallu Khan who has not been examined in this case. His service report howover runs to the following effect:

I beg to submit that I went with a lot of processes. When I showed them to his servants he took the processes but did not take this notice and asked me to hang it up. Therefore I hung this up in presence of the two witnesses. To this effect I submit my report to your honour. It may be noted that I hung up a copy of this notice at the Srinagar Kothi.

His report relating to the notice to the minor is also to the same effect. Now, it is noteworthy that the name of the servant who is alleged to have refused to accept the notice is not mentioned in the report nor has it been revealed in the evidence whether he was authorised to receive the notice or not. The rules which have boon framed under the Bengal Tenancy Act and which are applicable to this case are to the following effect:

Where no other mode of service of notice is provided by the Act or by these rules, service shall be effected in the manner provided for the service of summons on a defendant under the Civil Procedure Code, 1908, if the notice is addressed to one or more persons occupying or owning the same holding or tenure; and if it is addressed to a number of persons occupying or owning different holdings or tenures in the same village, the notice shall be served in the manner provided for the service of summons on a defendant under the Civil Procedure Code, 1908, or by proclamation and beat of drum and by posting it, in the presence of not less than two persons, on some conspicuous place in the village and also by fixing it up in the village office, if any, where the rent is usually paid. In the case of uninhabited villages the posting of the notice shall be made in the nearest inhabited village.

Provided that where the person to be served is a minor, notice shall be served on the minor and also either on his or her legal guardian or on his or her guardian ad litem appointed by the Court for purposes of service on an application by the person asking for service of notice.

It was admitted on both sides that the service of notice in this case will be governed by the relevant provisions of Order. 5, Civil P.C., which relates to the service of summons. Under this order service can be effected by affixing the summons upon the house where the defendant resides either under Rule 17 or Rule 20. Rule 20 does not clearly apply to the present case and therefore we have to see whether the requirements of Rule 17 were com. plied with. Rule 17 runs as follows:

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

In this case it is admitted that the persons who were to be served with notice did not themselves refuse to sign the acknowledgment. The peon has stated nowhere that he was refused access to these persons. All that he says is that "one of his servants refused to take the notice," but, as I have already pointed out, it is not stated that that servant had been authorised by the persons, upon whom the notice was to be served, to receive such notice. The servant, therefore, cannot be properly described as their agent. Again it is difficult to say that the peon had used all due and reasonable diligence to find these persons and yet he was unable to find them. It was open to the defendants to have adduced reliable evidence as to the circumstances under which the notice was affixed to the house of the Kumars of Srinagar, but the only witness who was examined on their behalf has been found to be unreliable by the learned Subordinate Judge and no serious attempt was made to question the finding of the learned Subordinate Judge with regard to this witness in appeal. In See also Bhomshetti v. Umabai (1997) 21 Bom.223 it was held that if a serving officer goes to a defendant''s house, but does not find him there, and the defendant''s adult son, who is in the house, refuses to accept service on behalf of the father, these facts by themselves do not justify the officer in resorting to the notice of service prescribed by Rule 17. He must, before effecting such service, inquire of the son as to where the defendant is and otherwise exercise due and reasonable diligence in finding the defendant. The facts of that case as well as certain other cases on the same point are not easily distinguishable from those of the present case.

Rule 19 provides that where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court touching his proceedings and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. In the present case there was no verification of the service; by the serving peon or any one else and there was no enquiry by the Collector. The Collector merely noted in the order-sheet upon receiving the peon''s report--"Notice hung up on 9th March 1917. Note in the register and file." He did not state in so many words that the notice had been duly served or that the service was in his view sufficient. In those circumstances I find it difficult to hold that the learned Subordinate Judge was wrong in holding the service of the notices in question to be insufficient. The plaintiffs have also referred us to certain events which according to them afford a clear'' proof of the fact that even after the alleged service of notice Rani Mina Kumari continued to recognise the darpatni tenure as still subsisting. In order to appreciate this argument a reference to the following events will be material.

After Rani Mina Kumari purchased the patni, she failed to pay the rent for the Aswin kist of 1323 and defendant 1, the zamindar, brought the patni to sale by taking proceedings under the Patni Regulation. On 16th October 1916, Rani Jograma, mother of Kalikanand, one of the darpatnidars, purchased the patni in the name of one of her servants Mauji Lal for a sum of Rs. 10,000. On 30th March 1917, Rani Mina Kumari brought a suit for setting aside the sale. That suit was filed after the alleged service of notice u/s 167 and it was ultimately compromised as between Rani Mina Kumari on the one hand and Rani Jograma and the darpatnidar defendants on the other. The terms of the compromise are to be found in a petition (Ex. 5) which was filed on 6th April 1918 on behalf of the above parties. In this petition it was stated that the parties had agreed that the sale of the patni be set aside and Rani Mina Kumari had agreed that she would execute a sale deed in respect of her patni interest in three items of properties including Saara Basethi in favour of Rani Jograma for a consideration of Rs. 10,000. There was also a provision to the following effect:

As Rs. 13,129-7-9 in respect of darpatni rent of the aforesaid mahals and besides this the decretal dues are due by Kumar Kalikanand Singh to this plaintiff and for which pressing demands are being made by this plaintiff and which Kumar Kalikanand Singh cannot repay by any means other than by taking loan, at present therefore Kumar Kalikanand Singh having executed a handnote for Rs. 10,000 in favour of Rani Jograma, requested that Rs. 10,000 the sale money aforesaid may be set off against Rs. 13,129-7-9 the darpatni rent due to the plaintiff. Therefore in accordance with the consent of Bani Jograma aforesaid, Kumar Kalikanand Singh and others, the defendants darpatnidars having withdrawn the said amount of Rs. 10,000 from the Collectorate shall get it set off against Rs. 13,129-7-9 the darpatni rent of the mahals Saara Baseti, Jhuni Balua and Mirzapur Khopariya, original with dependencies for the years 1324 and 1325 by this plaintiff and this plaintiff shall grant receipt thereof to Kumar Kalikanand Singh and others.

Further para. 5 of this petition proceeds as follows:

That Kumar Kalikanand Singh and others have filed a Miscellaneous Appeal No. 161 of 1917 in the Hon''ble High Court of Judicature at Patna being aggrieved at the orders passed by this Court against Rani Mina Kumari and others for setting aside the sale of the patni mahal lot Mirzapur Khopariya, Saara Baseti and Jhuni Balua. That appeal is pending decision. Kumar Kalikanand Singh and others shall withdraw the aforesaid appeal within three months i.e., after the execution of the patni sale deed mentioned in para. 2 of this petition and the parties shall bear their own costs incurred in the previous suit aforesaid.

The effect of this compromise was that Rani Mina Kumari sold her patni interest in certain villages including the villages which were the subject of darpatni to the mother of the darpatnidars. There was no reference in the compromise petition to the alleged service of notice u/s 167 upon the Kumars of Srinagar nor was it stated that their darpatni interest had come to an end. On the other hand, there were provisions for realising certain arrears of rent from them and in fact they continued to remain in possession as before even after the alleged service of the notice u/s 167, Ben. Ten. Act. It was contended on behalf of the plaintiffs that this compromise petition virtually amounted to the recognition of the subsistence of the darpatni interest by Rani Mina Kumari after the service of the notice and therefore the service of the notice had no effect upon the darpatni. Reference, however, must be made to a deed of sale which was executed on 20th May 1919 in pursuance of the compromise by Maharaja Bahadur Singh (son of Rani Mina Kumari) in favour of Rani Jograma. Maharaj Bahadur Singh states in this deed that Rani Mina Kumari, his mother, was his benamidar and the deed also recites among other facts that the darpatni of Kumar Kalikanand Singh and others had been annulled and a notice u/s 167 had been issued and duly served upon the darpatnidars. If the sale deed is read along with the compromise petition, then it goes to the root of the argument that Rani Mina Kumari had recognised the existence of the darpatni tenure even after the service of notice u/s 167. It is, however, contended on behalf of the plaintiffs that the statement made by Maharaj Bahadur in the sale deed cannot be used as evidence as none of the parties to the deed has been examined in this case and that in any event it is a dishonest statement which was made with the object of destroying the rights which the plaintiffs had acquired under their mortgage decree and restoring the darpatni property in which the darpatnidars had lost their interest to them through their mother Rani Jograma.

To understand the true situation it is necessary to recall that Rani Mina Kumari had applied for the service of the notice u/s 167, Ben. Ten. Act, in March 1917; but before that date her patni interest had been sold and purchased by Rani Jograma in a sale held under the Patni Regulation for arrears of rent. In the compromise petition to which she was a party it was stated that the arrears for which the sale had taken place were in fact due from her and so it cannot be denied that it was a sale for genuine arrears of rent. Now, if she had ceased to be a patnidar as a result of the sale, she had no locus standi to apply for a notice u/s 107 and if the sale in favour of Jograma had stood, the proceedings u/s 167 would have been wholly infructuous. The question as to whether the sale was a good one or not was never decided by the Court, but even on the terms of the compromise when they are properly analysed and understood the sale was virtually allowed to stand in respect of some of the patni villages and it is a fact that in the petition of compromise nothing was stated to suggest that the darpatni tenure had ceased to exist. On the other hand, para. 2 of the petition after referring to the Saara Basethi darpatni states "the darpatnidars whereof are Kumar Kalikanand Singh and others."

Again para. 3 contains provisions for the realisation of rent for 1324 and 1325 from the darpatnidars. Those statements do suggest that Mina Kumari was dealing with the darpatnidars as if their tenure still subsisted and in any event none of the parties seem to have attached any importance to the proceeding for the annulment of the darpatni, because substantially the same property was going back to the family of the darpatnidars. The appellants also seem to have acted for some time as if the darpatni tenure was still subsisting. In December 1916, defendant 1 (father of defendants 2 to 5) brought a mortegage suit to enforce a mortgage bond held by him against the darpatnidars and after having obtained a preliminary mortgage decree on 21st February 1918 (after the service of Section 167 notices) he got the darpatni interest sold but afterwards he did not apply for the confirmation of sale. It was only on 20th. May 1919, when the sale deed was executed by the son of Rani Mina Kumari in favour of Rani Jograma that it was alleged for the first time that the darpatni tenure had been annulled. The darpatnidars were not in the least affected by the statement because their interest in the darpatni tenure having already been purchased by the plaintiffs it was of greatest advantage to the family, if the patni right in those very villages were acquired by their mother free from all incumbrances and under-tenures. The Kumars of Srinagar had owed the plaintiffs a very large sum of money amounting to over six lakhs of rupees and the latter had obtained a mortgage decree against the darpatni property and certain other properties for their dues. The result of the arrangement which was entered into between Rani Mina Kumari and Rani Jograma was that the whole of the plaintiffs'' incumbrance was wiped out and Rani Jograma, the mother of the Kumars, got a superior interest (patni interest) in the very property. Such a transaction, to say the least, does not appear at the first sight to be above suspicion and I am on the whole inclined to agree with the learned Subordinate Judge that both Rani Mina Kumari and the defendants had treated the darpatni tenure as subsisting notwithstanding the proceedings u/s 167, Ben. Ten. Act. But in any event whether that view be correct or not the plaintiffs are entitled to succeed in this litigation on the ground that the notices u/s 167 were not served in accordance with law on the darpatnidars.

The last argument which was put forward on behalf of the appellants was that inasmuch as the Patni Regulation entitled them to take possession of the property free from all under-tenures they could not, now that they were in possession of the disputed property, be dispossessed at the instance of the plaintiffs, merely on the ground that they had acquired possession without observing certain rules of procedure. The contention amounts to this that if the appellants had not been in possession of the property and had sued as plaintiffs they might have been defeated on the ground that they had not followed the proper procedure laid down in Section 167; but the position must be different when they are defendants in the suit and found to be in possession, because they were entitled to possession and they have got possession and they cannot be ejected at the instance of a person whose interest in the property was liable to be extinguished upon a sale of the superior tenure for arrears of rent. In my opinion this argument has already been answered. A darpatni interest is an interest recognised by law and cannot be held to have come to an end until and unless it was legally terminated. I have held that it has not been legally terminated in this case and therefore it is an interest which still subsists and the plaintiffs are entitled to recover possession thereof.

As no other points were raised in this appeal I must hold that the plaintiffs'' suit has been rightly decreed by the Subordinate Judge and I would accordingly dismiss the appeal with cost.

Manohar Lall J.

I entirely agree with the reasons and the conclusions in the judgment of my Lord the Chief Justice and think it unnecessary to express the same views in words of my own.

Chatterji J.

The substantial question for consideration in this appeal is whether, when a patni tenure is sold in execution of a decree for arrears of rent under the provisions of the Bihar Tenancy Act, the sale has the effect of ipso facto annulling a subordinate darpatni tenure by reason of the provisions of the Patni Regulation 8 of 1819, or the darpatni requires to be annulled ''in accordance with the provisions of Section 167, Bihar Tenancy Act.

The plaintiffs in this case claim title to the darpatni tenure, which is the subject-matter of dispute, by virtue of a purchase made on 23rd April 1931 in execution of a mortgage decree of their own. The defendants who are the zamindars had purchased the patni tenure, to which the disputed darpatni appertains, on 4th June 1925 in execution of a decree for arrears of its rent against the patnidar, and they claim that by their purchase they acquired the patni free from the darpatni. Admittedly they did not take any steps u/s 167, Bihar Tenancy Act, for annulling the darpatni. They however, alleged that the patni had previously been sold in 1916 and that on that occasion the purchaser annulled the darpatni u/s 167, Bihar Tenancy Act.

The learned Subordinate Judge decreed the claim of the plaintiffs, holding that the darpatni, not having been annulled in accordance with the provisions of Section 167, Bihar Tenancy Act, remained unaffected by the sale of the patni tenure.

It has been argued by Dr. D.N. Mitter on behalf of the defendants who are the appellants that though the sale of the patni was held in execution of a decree for arrears of rent under the Bihar Tenancy Act, the provisions of the Patni Regulation 8 of 1819 will still apply by reason of Section 195(e), Bihar Tenancy Act, which provides:

Nothing in this Act shall affect any enactment relating to patni tenures in so far as it relates to those tenures.

The Patni Regulation 8 of 1819, as its preamble shows, is:

A Regulation to declare the validity of certain tenures, and to define the relative rights of zamindars and patni-taluqdars, also to establish a process f for the sale of such taluks in satisfaction of the zamindar''s demand of rent.

Section 3 of the Regulation, by its Clause (1), declares that the patni tenures are permanent, heritable and transferable. Its Clause (2) declares, in particular, that patnidars have the right of underletting, and it runs as follows:

Second Putnee-talookdars are hereby declared to possess the right of letting out the lands composing their talooks in any manner they may deem most conducive to their interest, and any engagements so entered into by such talookdars with others shall be legal and binding between the parties to the same, their heirs and assignees: provided, however, that no such engagements shall operate to the prejudice of the right of the zamindar to hold the superior tenure answerable for any arrear of his rent, in the state in which he granted it, and free of all incumbrance resulting from the act of his tenant.

Section 8 provides that the zamindars shall be entitled to apply to the Collector for "periodical sales" of the patni tenure, once on 1st Baisakh, that is, at the commencement of the year, and again on 1st Kartick, the claim in the first case, being limited to the preceding year''s rent, and in the second, to the rent for the first half of the current year (Baisakh to Asin). The section also provides how notices are to be served. Section 9 provides that all sales under the Regulation shall be held in the Collector''s kachahri and also pre& scribes the procedure as to how the sales are to be conducted. Section 10 prescribes the "forms to be observed in selling." Section 11, which is most important in this case provides as follows:

First. [Tenure to be sold free of incumbrance by act of defaulter].--It is hereby declared, that any taluk or saleable tenure that may be disposed of at a public sale under the rules of this Regulation, for arrears of rent due on account of it, is sold free of all incumbrances that may have accrued upon it by act of the defaulting proprietors, his representatives or assignees, unless the right of making such incumbrances shall have been expressly vested in the holder by a stipulation to the effect in the written engagements under which the said taluk may have been held.

No transfer by sale, gift, or otherwise, no mortgage or other limited assignment, shall be permitted to bar the indefeasible right of the zamindar to hold the tenure in his creation answerable in the state in which he created it, for the rent, which is in fact his reserved property in the tenure, except the transfer or assignment should have been made with a condition to that effect under express authority obtained from such zamindar.

Second. [No under-lease to stand after sale].--In like manner, on sale of a taluk for arrears, all leases originating with the holder of the former tenure if creative of a middle interest between the resident cultivators and the late proprietor, must be considered to be cancelled, except this authority to grant them should have been specially transferred; the possessors of such interest must consequently lose the right to hold possession of the land, and to collect the rents of the ryots; this having been enjoyed merely in consequence of the defaulter''s assignment of a certain portion of his own interest, the whole of which was liable for the rent.

Third. [Exception in favour of bona fide engagements with ryots]--Provided nevertheless, that nothing herein contained shall be construed to entitle the purchaser of a taluk or other saleable tenure intermediate between the zamindar and actual cultivators, to eject a khoodkasht ryot, or resident and hereditary cultivator, nor to cancel bona fide engagements made with such tenants by the late incumbent or his representative, except it be proved in a regular suit, to be brought by such purchaser for the adjustment of his rent, that a higher rate would have been demandable at the time such engagements were contracted by his predecessor.

Section 12 runs ass follows:

[Above rule to lake effect retrospectively].--The rules of the preceding section being declaratory of the principle to be observed on all occasions where in saleable tenures are made responsible for the zamindar''s reserved rent, will equally apply to the case of taluks heretofore sold as to those that may be sold henceforward, if the sale shall have been fair, and the process observed in conducting it shall have been that recognised and in use in the district at the time of selling.

Proviso.--Nothing, however, herein contained shall operate to the prejudice of any agreement, express or implied now subsisting between the purchaser of a taluk and the lessees of his predecessor.

[But not to apply to private transfers]-Neither shall the rule for the fall of under-tenures be considered to apply to any private transfer byatalukdar in his own interest; nor to a public sale in execution of a decree, nor to the case of a relinquishment by the talukdar in favour of the zamindar, nor to any act originating with the former holder, other than default as aforesaid; all such operations involve only a transfer of the tenure in the state in which it may be held at the time, and the new incumbent succeeds to no more than the reserved rights of the former tenant, such as they may be, and is of course subject to any restriction put upon the tenure by his act.

Section 13 provides how under-tenants may stay sale, that is by depositing the amount of rent due. Section 14 provides that a suit will lie to obtain the reversal of the sale, that may have taken place "upon establishing a sufficient plea." Section 15 provides for delivery of possession to the purchaser. The noticeable part of this section is Clause (2) which provides that if the purchaser, when he proceeds to take possession, is resisted by "the late incumbent himself, or the holder of tenure or assignments derived from the late incumbent and intermediate between him and the actual cultivators," he will be at liberty to apply immediately to the civil Court for the aid of the public officers in obtaining possession of his just rights; a proclamation shall then issue under the seal of the Court and signature of the Judge, declaring that the purchaser having

acquired the entire rights and privileges attaching to the tenure of the late taluqdar in the state in which it was originally derived by him from the zamindar, he alone will be recognised as entitled to make the zamindari collections in the mufassal, and no payments made to any other individual will, on any account, be credited to the raiyats or others in J, any suit for rent or on any other occasion whatever when the same may be pleaded.

Section 17 which is the last section of the Regulation prescribes rules for the disposal of the sale proceeds. In Clause (3) of this section it is provided that the zamindar''s demand to be satisfied out of the sale proceeds shall not include his

former balances beyond those of the current year (or of that immediately expired if the sale be at the commencement of the following year)

and that

such antecedent balances, if the zamindar shall have omitted to avail himself of the process within his reach for having them satisfied at the time, will have become in fact, mere personal debts of the individual talukdar, and must be recovered in the same way as other debts, by a regular suit in the Court.

It will thus appear that the Patni Regulation is a self-contained enactment, as observed by their Lordships of the Privy Council in A.H. Forbes v. Maharaj Bahadur Singh A.I.R.1914 P.C.111. It is also apparent that when a patni tenure is sold under the rules of this Regulation, the purchaser acquires the patni free from all encumbrances and under-tenures created by the defaulting patnidar, without having to take any further steps to annul them. In other words, the sale under the Regulation has the effect of ipso facto annulling all encumbrances or under-tenures. But in order that this consequence may follow, the sale must be held under the rules of this Regulation. This is clear from para. 1 of Clause (1) of Section 11 which expressly refers to "a public sale under the rules of this Regulation." Dr. Hitter''s contention, however, is that para. 2 of Clause (1) as well as Clause (2) of Section 11 are of general application, irrespective of whether the sale of the patni tenure is held under the rules of the Regulation or under the provisions of the Bihar Tenancy Act. This contention to my mind is untenable. Paragraph 2 of Clause (1) must not be taken out of the contest, but must be read as part of the clause in which it occurs. So also Clause (2) must be read together with the first as parts of the same section. The words "In like manner, on sale of a taluq for arrears" in Clause (2), must be understood with reference to the context, to moan "Similarly, when a taluq is disposed of at a public sale, under the rules of this Regulation, for the arrears of rent due on account of it." In construing a particular provision of a statute, to take it out of the context is opposed to the well recognised canon of construction of statutes.

It has been suggested by Dr. Mitter that the word "encumbrances" in para. 1 of Clause (1) as well as the expression "other limited assignment" in para. 2 of the same clause of Section 11 are sufficient to include under-lease, and therefore Clause (2) would be quite unnecessary, if it were meant to apply only to a sale under the rules of the Regulation. But strictly speaking, an under-lease is not an encumbrance. It may be so regarded under the Bihar Tenancy Act for the purposes of chap. 13 (formerly chap. 14) of the Act (see Section 161). In AIR 1931 314 (Privy Council) their Lordships of the Privy Council pointed out that Section 11 of the Patni Regulation makes a differentiation between ''under-tenure'' and ''encumbrance.'' Nor does under-lease come within the expression "other limited assignment" because assignment and lease are two quite distinct modes of transfer. But assuming that "other limited assignment" does not include under-lease, it by no means follows that Clause (2) of Section 11 would be redundant. The patnidar''s right of underletting being specifically recognised in Section 3 the Legislature may have considered it necessary to make a separate specific provision, as in Clause (2) of Section 11 for the cancellation of under-lease on the sale of patni tenure. It will be noticed that para. 2 of Clause (1) of the section includes "mortgage," and it might as well be said that it was redundant because it was included within the word "encumbrance" in para. 1.

Great stress has also been laid on the proviso to Clause (2) of Section 3 of the Regulation. No doubt, it declares that the zamindar has the right to hold the patni tenure answerable for any arrear of his rent, in the state in which he granted it, and that such right will not be in any way affected by any under-tenure that may have been created by the patnidar. But it does not provide how this right of the zamindar is to be exercised. If the zamindar wants to take the benefit of the provisions of Section 11 of the Regulation, he must bring the patni tenure to sale under the rules of the Regulation. But if he chooses to seek his remedy under the Bihar Tenancy Act, he must enforce his right in the manner provided therein. u/s 159, Bihar Tenancy Act, the purchaser of a tenure in execution of a decree for arrears due in respect thereof has power to annul all encumbrances, but "the power to annul shall be exercisable only in manner by this chapter directed." Section 167 prescribes the manner in which an encumbrance is to be annulled.

Section 195(e), Bihar Tenancy Act, in my opinion, is of no avail to the appellants. Broadly speaking, the effect of this section is that the Bihar Tenancy Act does not exclude the operation of the Patni Regulation. In other words, notwithstanding the Bihar Tenancy Act, it is open to the zamindar to proceed under the Regulation. This does not mean that where proceedings have been taken under the Bihar Tenancy Act the provisions of the Patni Regulation, may still be applied. If, however, there is any specific provision of the Regulation, it will prevail, notwithstanding anything in the Bihar Tenancy Act. Now, the only specific provision in the Patni Regulation for annulment of encumbrance or under-tenure is to be found in Section 11. But, as 9 I have already shown, that section by its terms applies only to a sale held under the rules of the Regulation. Though para. 2 of Clause (1) of that section defines the general right of the zamindar it cannot, if taken out of the context, be regarded as a specific provision declaring that the purchaser of a patni tenure at a public sale, held otherwise than under the rules of the Regulation, acquires the tenure free from the interest created by the former patnidar. This paragraph declares the right, but does not prescribe the remedy. This right is also recognised in the Bihar Tenancy Act itself, particularly so far as "mortgage or other limited assignment" is concerned. In the first place, Section 05 of the Act declares that the rent shall be a first charge. In the second place, Section 159 of the Act provides; that the purchaser of a tenure in execution of a decree for arrears of its rent has power to annul "encumbrances," and the term ''encumbrance,'' as defined in Section 161 of the Act includes mortgage or other limited assignment. How an encumbrance is to be annulled is, however, a matter of procedure which is not affected by para. 2 of Clause (1) of Section 11 of the Regulation, because it is silent about the procedure. This paragraph, therefore, cannot override the prosions of the Bihar Tenancy Act regarding annulment of encumbrances. Again, if this paragraph were to be considered, apart from the context in which it occurs, the result would be inconsistent with the provisions of Section 17 of the Regulation which says that "antecedent balances," that is to say, "arrears of rent" beyond those of the current year (or of that immediately expired, if the sale be at the commencement of the following year) "will be treated as mere personal debts of the individual taluqdar," recoverable in the same way as other debts by regular suit in the Court. What, then becomes of "the indefeasible right of the zamindar" mentioned in the said paragraph, with regard to such "antecedent balances?"

It appears from Section 12 of the Regulation that the rules of the preceding section are declaratory of the principle to be observed on all occasions wherein saleable tenures are made responsible for the zamindar''s reserved rent." This statement at the first sight, seems to suggest that the principle of Section 11 is to be applied to all cases of sales whether held under the rules of the Regulation or not. But the object of Section 12, which is expressed in clear terms, is merely to extend the operation of the rules of the preceding section to past sales, that is, sales held before the passing of the Patni Regulation 8 of 1819. Therefore, the above statement in Section 12 cannot be said to have the effect of extending the operation of the rules of the preceding section to future sales, held otherwise than under rules of the Regulation. Hero I shall deal with a contention which centres round the words "a public sale in execution of a decree" which occurs in para. 3 of Section 12 of the Regulation. The learned Subordinate Judge has held that "decree" here includes a rent decree. Dr. Mitter''s contention is that with reference to the context, "decree" here means a money decree. Upon a careful perusal of the whole of para. 3, particularly of the concluding portion beginning with the words "all such operations involve," it appears that the paragraph refers to transfers by which the transferee acquires merely the right, title and interest of the former tenant. A sale of a tenure in execution of a rent decree under the Bihar Tenancy Act passes the tenure itself and not merely the right, title and interest of the judgment-debtor. It, therefore, follows that the words "a public sale in execution of a decree" do not include a sale in execution of a rent decree under the Bihar Tenancy Act. It may be said ''that if the word "decree" were intended to exclude a rent decree, this might have been made clear by adding such words as "other than a decree for arrears of rent" after the word "decree." But it must be remembered e that the Patni Regulation was passed in 1819 when there was presumably no provision of law corresponding to Section 158B, Bihar Tenancy Act.

In support of his main contention, Dr. Mitter has relied on the decisions in P.C. La Chaudhury v. Gulzar Ali A.I.R.1934 Pat.110, Durlav Chandra v. Jamiruddin Ahmad AIR 1926 Cal. 314, Srimati Krishna Pramada Dassi v. Dwarka Nath Sen (1913) 17 C.W.N.1092, Krista Das Laha v. Jotindra Nath Basu (1912) 16 C.W.N.561 and Brindabun Chunder Sircar v. Brindabun Chunder Dey Chowdhry (1974) 1 I.A.178. In the Patna case, decided by Courtney-Terrell, C.J. and Kulwant Sahay J., it was held that the Bengal Tenancy Act does not, in view of the provision of Section 195(e), affect the provisions of the Patni Regulation and that, therefore, the mere fact that the landlord took proceedings for the annulment of the darpatni tenure u/s 167, Bengal Tenancy Act, whether successful or unsuccessful, does not affect the consequences of the sale of the patni tenure enacted by the Patni Regulation. This case is directly in point and fully supports the contention of Dr. Mitter. But it is because of this decision that the appeal has been referred to a Full Bench. Prom the judgment of Courtney-Terrell, C.J., with whom Kulwant Sahay J. agreed, it appears that he relied on Clause (2) of Section 11 of the Regulation. But with the greatest respect, I fail to see how this clause of the Regulation can be applied to a sale under the Bengal Tenancy Act. The learned Chief Justice also relied on the cases in Durlav Chandra v. Jamiruddin Ahmad A.I.R.1926 Cal.314 and Srimati Krishna Pramada Dassi v. Dwarka Nath Sen (1913) 17 C.W.N.1092. I shall presently deal with these cases.

In Durlav Chandra v. Jamiruddin Ahmad A.I.R.1926 Cal.314 it was held that the Bengal Tenancy Act does not in view of the provision of Section 195(e) affect the rights of patnidars under the Patni Regulation and that therefore the provisions of the Patni Regulation are applicable to a case arising from a sale under the Bengal Tenancy Act. In that particular case the provision of para. 2 of Clause (1) of Section 11 was held applicable. The learned Judges with reference to that clause said:

Para. 1 defines the right of the zamindar as against the transferee or sub-lessee of the patnidar in case the sale of patni is held under the Regulation. Paragraph 2 states the general right of the zamindar as against the transferee or the sub-lessee in all cases; otherwise this sub-elause would appear redundant.

With all respect, I am unable to agree with this view. As I have already stated, para. 2 cannot be considered apart from the context. To adopt the reasoning of the learned Judges, it may be equally said that para. 1 would appear redundant, because the second would cover all cases.

The case in Srimati Krishna Pramada Dassi v. Dwarka Nath Sen (1913) 17 C.W.N.1092 relates to a sale held under the rules of the Patni Regulation, and is, therefore, of no assistance to the appellants.

In Krista Das Laha v. Jotindra Nath Basu (1912) 16 C.W.N.561 the suit was brought by the mortgagees of a patni tenure to enforce their mortgage against the mortgagor and also the landlord who had, subsequent to the mortgage, purchased the tenure in execution of his decree for arrears of rent. The suit was resisted by the landlord, but it is not clear from the report what his defence exactly was. The Courts below decreed the suit, holding that the mortgagees had a protected interest u/s 160, Clause (g), Ben. Ten. Act. But the High Court held otherwise, relying mainly on the terms of the kabuliat by which the patni tenure was created and alternatively on the provision of Section 195(e), Ben. Ten. Act. This alternative ground was stated by the learned Judges in these words:

Even if the recitals could be regarded as an express authority within the meaning of Section 160, Clause (g), Ben. Ten. Act, the effect of that section would certainly be subject to the saving provisions of Clause (e) of Section 195 of the same Act.

I confess this reasoning does not seem to me clear. Having held that the mortgage was not a protected interest, the learned Judges then proceeded to consider whether it could be enforced against the landlord. They considered that the mortgage was subject to the conditions imposed by Section 11 (Clause (1), para. 2) of the Patni Regulation, and held that as the mortgagees "had allowed the property to be sold in the exercise of the indefeasible right of the landlord for recovery of the rent due on the tenure," they had no legal right to ask for a decree for sale of the tenure which had passed into the hands of the landlord and be thus released from the burden of the arrears of rent. With all respect, I must observe that the learned Judges, without giving any reason, rather assumed that Section 11 (Clause (1), para. 2) of the Regulation would apply to the case so as to override the provisions of the Bengal Tenancy Act regarding annulment of encumbrances.

In Brindabun Chunder Sircar v. Brindabun Chunder Dey Chowdhry (1974) 1 I.A.178 their Lordships of the Privy Council had to consider the effect of a sale of a patni taluq held under the provisions of Act 10 of 1859 (which was subsequently replaced by the Bengal Tenancy Act, 1885). The decision turned on the following provision in Section 103 of Act 10 of 1859;

and the tenure may thereupon be brought to sale in execution of the decree, according to the rules for the sale of under-tenures for the recovery of arrears of rent due in respect thereof, contained in any law for the time being in force.

Upon the construction of the words "according to the rules for the sale of under-tenures," their. Lordships held that

the effect of the Regulation 8 of 1819 and 1 of 1820, is applicable to cases of sales under decrees of rent made under this Section 105.

It has been argued by Dr. Mitter that Section 195(e), Bihar Tenancy Act, corresponds to the aforesaid provision of Section 105 of Act 10 of 1859. But I can find no similarity between these two provisions.

It may be mentioned that Regulation 1 of 1820 referred to by their Lordships of the Privy Council in the case just cited is also called Patni Regulation and provides for sales other than "periodical sales" referred to in Section 8 of Regulation 8 of 1819. By this Regulation of 1820, the rules of Sections 9, 11, 13, 15 and 17 of, Regulation 8 of 1819 were extended to all sales held thereunder. It is unnecessary to consider the effect of this Regulation in the present case, because it has not been suggested that it will improve the position of the appellants in any way. For the aforesaid reasons I am of opinion that the defendants by their purchase in execution of their rent decree did not acquire the patni tenure free from the darpatni in question. On the question whether on the previous occasion when the patni tenure was sold in 1916, the purchaser annulled the darpatni by service of notice u/s 167, Bihar Tenancy Act, I agree with my Lord the Chief Justice and have nothing to add.

I agree that the appeal should be dismissed with costs.