Rajah Sir Sourindra Mohan Tagore vs Moharani Surnomoyee

This appeal arises out of a suit, brought by the Plaintiff-Respondent, for arrears of rent and cesses due in respect of a putni tenure, Pergunna Plassey, on the allegation that the putni was granted by the Plaintiff''s predecessor on the 10th of Sraban 1251, B. S., to Kesub Chunder Roy, that it passed by successive sales for arrears of rent under Regulation VIII of 1819; first, to Tarini Prosad Ghosh, and, after him, to Rakhal Dass Mukerjee, and then by inheritance to Srimati Saratmoni Debi and Srimati Haridasi Debi, Defendants Nos. 1 and 2; and that by some arrangement with Defendants Nos. 1 and 2, the Defendant No. 3, Rajah Sir Sourindra Mohan Tagore, was in joint possession with them of the putni during the period for which rent was claimed, that is, the year 1301. The defence of Defendant No. 1 was to the effect that she was entitled to eight annas, that is, a moiety of the putni, that the said eight, annas share was leased in perpetuity to the Defendant No. 3 in two equal halves, one by the Defendant No. 1, and the other by her predecessor in title Defendant No. 2, with a stipulation in each case, that Defendant No. 3 should pay to the zemindar the putni rent payable in respect of the said share; and that consequently the Defendant No. 3, and not Defendant No. I, was liable for the rent claimed.

The defence of Defendant No. 2 was denial of liability on the ground that she did not any longer own any interest in the putni.

The defence of Defendant No. 3 was that he was not liable for the rent claimed, as he had not been recorded as putnidar in the Plaintiff''s sherista, and as he had made a gift of his interest in the tenure to one Donesh Prokash Ganguli in Kartik 1302.

The Court below has exempted Defendant No. 2 from liability and has given the Plaintiff a decree, making Defendants Nos. 1 and 3 liable for the amount claimed.

Against that decree the Defendant No. 3 has preferred this appeal, making the Plaintiff alone Respondent, and it is contended on his behalf,

first, that no decree ought to have been made against Defendant No. 3, as the plaint discloses no cause of action against him;

secondly, that even if any decree could properly be made against him, it ought either to specify tho extent of his liability, or to direct that the Plaintiff should, in the first instance, proceed against the putni tenure for realization of the amount decreed; and

thirdly, that the decree ought not to have allowed interest at the rate claimed during the pendency of the suit.

At the hearing of the appeal an objection was raised on behalf of the Plaintiff-Respondent that the appeal could not proceed in the absence of Defendant No. 1 who was not made a Respondent, and who was likely to be affected by the result of the appeal if it was decided in favour of the Appellant. If the appeal had been likely to succeed, we should have felt bound to make Defendant No. 1 a Respondent under sec. 559, C. P. C. But as, in our opinion, the appeal fails on the merits, it becomes unnecessary to say more on this point.

With reference to, the first contention of the Appellant, it is enough to say that,'' in our opinion, the plaint discloses a sufficient cause of action against the Defendant No. 3, when it alleges that Defendant No. 3 was by an arrangement with tho other Defendants in possession of the putni jointly with them, and when it asks for a decree for the arrears of rent due. in respect of the putni, such a decree may be executed by the sale of the putni which will pass the entire tenure and not merely the right, title and interest of the judgment-debtor; and to a suit in which such a decree may be passed a party in the position of Defendant No. 3 who has an interest in the putni, must clearly be a proper party.

Nor is there any good reason why tho suit should not be decreed against Defendant No. 3. It is not disputed that during the time in respect of which rent is claimed in this suit, Defendant No. 3 held and owned an eight annas share of the mehal Pergunna Plassey as putnidar, and the remaining eight annas as mourasi ejardar under Defendant No. 1. The only ground, urged for exempting Defendant No. 3 from liability, is that his name has not been registered as a tenant in the Plaintiff''s office, and that sec. 6 of Regulation VIII of 1819 stands in the way of his name being so registered, he being a transferee of only a fractional share of the putni. Now though it is quite true that the latter part of sec. 6 of Regulation VIII of 1819 provides that the right of the transferee to enforce registration of his name on payment of the necessary fee and tender of the requisite security does not extend to the case of transfer of a fractional share of a putni, yet it does not follow that the transfer of a fractional share of a putni is altogether void, or that the transferee of such a share is not liable for rent jointly with the registered tenant, oven if the landlord chooses to recognise him as one of the joint holders of the putni. The portion of the section to which reference is made runs thus :-

It is hereby provided that the rules of this and of the preceding section shall not be held to apply to transfers of any fractional portion of a putni taluk, nor to any alienation other than of the entire interest; for no apportionment of the zemindar''s reserved rent can be allowed to stand good unless made tinder his special sanction.

The true meaning and intention of the provision is, we think, not to make the alienation of a fractional portion of a putni taluk without the sanction of the zemindar absolutely void, nor even to exempt the transferee from liability for rent jointly with the transferor if the landlord chooses to recognize him as one of the joint holders of the putni out only to prevent any splitting of the tenure and apportionment of the rent without the sanction of the landlord, as the concluding words of the section which contain the reason for the provision Clearly shew,

The first contention of the Appellant must therefore fail.

The second contention of the Appellant has two branches, which we shall consider separately.

The first branch of the second contention, namely, that the decree against the Defendant No. 3 ought to specify, his liability, and as he is the purchaser of only one-half of the putni his liability should be limited to one-half of the amount decreed, is, we think, completely met by the provision of sec. 6 of Regulation VIII of 181.9, just quoted above. It is argued for the Appellant that if the landlord sues the transferee, he by so doing waives the benefit of the provision in sec. 6 relating to alienation of a part only of the putni; and that if the decree makes the transferee of a part only of the putni jointly and severally liable with the transferor for the entire rent, it throws on the transferee a heavier liability than what should justly attach to him.

We do not consider this argument sound. By suing the unregistered transferee of a part of the putni jointly with the transferor, the zemindar only recognises him as one of the joint holders of the putni, but because he does so, he cannot be said to have waived the right secured to him by sec. 6 of Kegulation VIII of 1819 to preserve the unity,of the tenure held under him without splitting it and apportioning its rent And as for the hardship of throwing on the transferee of a part of the putni the joint liability for the rent of the whole, it is in the first place the result of the transferee''s own act in accepting the transfer without the previous sanction of the zemindar to an apportionment of the rent, and in the second place, the hardship is only apparent and not real, whereas the opposite view would, in a case like the present, involve real hardship on the transferor. For if the transferee of a part of the putni is made to pay the rent of the whole, he can always obtain contribution from the. transferor or owner of the remaining part, and in this particular case the transferee has taken care to stipulate in the mourasi lease he has taken of the remaining share from the transferor or owner of that share, that he is to pay the zemindar''s rent out of the amount payable by him as rent of the mourasi tenure; whereas if the transferor or owner of the remaining share, that is, the Defendant No. 1 were alone made liable for the entire rent, it would be throwing on her the burden of paying what the Defendant No. 3 has already undertaken to pay for her. Moreover, if the entire rent be realized from Defendant No. 3, no suit for contribution will be necessary as that Defendant can always set off the amount paid in excess of his liability and on account of Defendant No. 1, against the mourasi rent due to Defendant No. 1, whereas if the decree is made against Defendant No. 1 alone, a suit by her against Defendant No. 3 would be Inevitable; so that the decree made by the Court below may result in preventing a multiplicity of suits.

The first branch of the Appellant''s second contention should, in our opinion, therefore fail.

The second branch of the second contention, namely, that the decree ought to direct the sale of the putni tenure in the first place, is sought to be based on the terms of the putni lease, as well as on the provisions of Rent Law. But the clause in the putni kabuliyat which is relied upon and which runs in these words, namely : "If I fail to pay the money due for any instalment, you shall be entitled to realize the same with interest from the 1st day of the month following, the one for which default shall be made by auction-sale of the said mehals under the provisions of Regulation VIII" is only an enabling clause and cannot be taken as restricting the landlord''s right to hold the tenant personally liable for the rent. Nor is there anything in the Putni Regulation (VIII of 1819) to support the contention urged, while, on the contrary, the third clause of see. 17 of the Regulation would go to show that arrears of putni rent other than those for the current year (and those claimed in this suit are of that description) become the personal debt of the taluqdar. And sec. 65 of the. Bengal Tenancy Act, which is the provision of the Rent Law relied upon by the learned vakil for the Appellant, has been held not to limit in any way the personal liability of the tenant for rent. See Fatick Chunder Dey Sircar v. Foby I. L. R. 15 Cal. 492 (1888), and Tarini Prasad Roy v. Narain Kumari Debi I. L. R. 17 Cal. 301 (1890).

The third contention of the Appellant is, in our opinion, equally unsustainable. There is no reason shown why interest should not run at the rate at which the Court below has allowed it during the pendency of the suit. The Court has by sec. 209, C. P. C, full discretion to award interest at such rate as it considers reasonable during the pendency of the, suit; and having regard to the rate allowed'', which is not very high, to the nature of the defence, and to the groundless objections upon which payment has been withheld, we do not think that there is any reason for reducing the rate of interest. The grounds urged before us, therefore, all fail; and the appeal must consequently be dismissed with costs.