Rakhal Raj Rai vs Hazi Shaikh Abdul Aziz

Das, J.—These are two appeals under Clause 15 of the Letters Patent against a judgment of Roxburgh J.

These appeals arise out of two suits for rent being numbered Rent Suits Nos. 557 and 558 of 1944. The claim for rent in these two suits was for the period 134T to 1350 B.S. In order to appreciate the contention which was raised in the courts below and which has been pressed in these two appeals, it is necessary to state the following facts:

The pro forma Defendant Haji Abdul Aziz was the owner of 5 annas and odd share in a zemindary. In regard to two annas share held by him, there was a putni in favour of certain persons who may be called the Roy Choudhuris. The Roy Choudhuris defaulted in payment of the putni rent and the putni was brought to sale under the Putni Regulation and was purchased by the Appellant Rakhal Raj Rai. In the courts below a contention was raised as to whether Rakhal Raj Rai was a benamdar for the defaulting putnidars or not. The lower appellate court has found that Rakhal Raj Rai was not their benamdar. This contention being a question of fact has not been further canvassed either before Roxburgh J. or before us.

It is also not disputed that Rakhal Raj Rai obtained possession of the putni purchased by him. The present suits for rent were instituted by Rakhal Raj Rai against certain tenants who held their jamas under the aforesaid putni mehal. To these suits Hazi Abdul Aziz was made a pro forma Defendant as being a co-sharer landlord. He filed a written statement and disputed the right of Rakhal Raj Rai to the rents claimed by him. His contention was that Rakhal Raj Rai did not furnish security and his name was accordingly not registered in the landlords'' sherista, that is, the sherista of Hazi Abdul Aziz. As such, Hazi Abdul Aziz instituted a suit for rent of a later period against the registered tenants, namely, the Roy Choudhuris and obtained a decree and in execution thereof he purchased the aforesaid putni. His further contention was that by this sale the interest of Rakhal Raj Rai had been sold and had passed to him.

Roxburgh J. was of the opinion that the contention of the pro forma Defendant Hazi Abdul Aziz was correct and that the Plaintiff Rakhal Raj Rai has no right to recover the rents claimed.

The question of law which arose for determination in the courts below and which has been canvassed before this Court is whether the omission on the part of a purchaser at a putni sale to furnish security, though called for, entitled the zemindar to sue his registered tenant ignoring the purchaser at the putni sale and obtain a decree for rent and effectively bring the putni to sale which would have the effect of passing the title of the purchaser at the putni sale.

The question, it is conceded by learned Counsel, has not been the subject of judicial determination in this Court and may, therefore, be taken to be one of first impression. The answer to this question depends on the view one takes of the provisions of Section 5, Sub-para. 5 and Section 15 of the Putni Regulations.

Roxburgh J. was of the opinion that the provisions of Section 15 must be read as supplementary to Section 5, Sub-para. 5 and that if it is so read the conclusion is irresistible that until the security is furnished by the purchaser at an astam sale, if so required by the zemindar, the zemindar is entitled to regard the defaulting putnidar as his tenant and proceedings taken against the latter for recovery of arrears of rent under the provisions of the Bengal Tenancy Act or under the Regulations have the effect of taking away the rights, if any, of the purchaser at the aztam sale. In support of his conclusion the learned Judge relied upon the following sentence which occurs in Section 15: "He alone shall be recognised as "entitled to the rent due from the tenants".

In my opinion, the view taken by the learned Judge is correct and must be affirmed.

In order to deal with the contention pressed before us, it is necessary to refer to the preamble of the Regulation and to the provisions of Sections 5, 6, 7 and 15 of the Regulation. The preamble expressly provides that the tenant may be called upon to furnish collateral security for the rent and for his conduct generally or he may be excused from this obligation at the zemindar''s discretion, but even if the original tenant be so excused, still in the case of sale for arrears or other operation leading to the introduction of another tenant, such new incumbent has always in practice been liable to be called upon at the option of the zemindar to furnish the security.

Section 5 makes a putni tenure alienable and provides that the zemindar is not entitled to refuse to give effect to the transfer but may demand fee and security.

The section then provides that the above rule applies to sales in execution of a decree or judgment of court and all other alienations.

An exception is, however, made in case of sales for arrears of rent held under the Regulation. In such a case the purchaser shall be entitled to have his name registered and to obtain possession without fee, though of course liable to be called upon to give security under the conditions of the tenure purchased.

In cases of transfers other than a sale for arrears of rent under the Regulation, it has been held as far back as the year 1864 that though the omission of the transferee to pay the fee or to furnish security does not affect his title in any way and his rights are perfected upon the transfer and are not contingent for its validity upon the payment of the prescribed fee and security, the effect of such omission is that the landlord is not bound to register his name and recognise his purchase and may sell up the tenure in execution of a decree for arrears of rent obtained against the recorded tenant. Vide the case of Ganpat Singh v. Motichand (1864) W.R. Gap. No. 63. This view has been taken in later cases. One of the recent decisions to which Roxburgh J'', referred is the case of Krishna Chandra Dutta Choudhury v. Dina Nath Biswas (1927) I. L.R. 54 Cal. 1064.

The question, however, remains whether the position is different in the case of a sale for arrears of rent held under the Regulation. Section 5 taken as a whole makes it clear that the only difference between the case of a sale inter vivos or a sale in execution of a decree of a court and a sale for arrears of rent under the Regulation is that in the former case the tenant is liable to pay the requisite fee and to furnish the proper security while in the latter case, viz., the case of a purchaser at the sale under the Regulation, he is required only to furnish security. The last paragraph of a. 5 does not, in my opinion, compel the landlord to register the purchaser at a sale under the Regulation as his tenant unless the purchaser furnishes the security prescribed by law.

If we compare Sub-para. 1 of Section 5 with Sub-para. 5 of the same section, the view which I have just expressed seems to be apparent. The above view is also supported by the provisions of Section 6 which generally speaks of payment of fee and the furnishing of security in all cases of transfer. The view is also reinforced on a reference to the provisions of Section 15. Section 15 provides that the purchaser at the astam sale if he wants to take aid of the court in taking possession, has to take a certificate of payment and has then to go to the landlord''s sherista and get his name registered on production of the certificate and thereupon he is entitled to have the custody of the papers and also to obtain amaldastak. Elaborate provisions are incorporated in the section which would go to show that the purchaser will be recognised as having the sole right to recover rents from the subordinate tenants in case he follows the procedure envisaged in the section.

The mere fact that the object of payment of fees and the furnishing of security is to apprise the landlord of the fact of purchase, as was held in the case of Khettur Paul Singh v. Luckhee Narain Mitter (1871) 15 W.B. 125 to which Mr. Hariprasanna Mukherjee drew our attention, does not necessarily indicate that in case of a sale for arrears of rent under the Regulation, as the landlord must necessarily have knowledge of the purchase by the auction purchaser, the provisions of Section 5 requiring security from the purchaser would not stand in the way of his being treated as a registered tenant. It is not disputed that in case of a sale for arrears of rent of a putni held under the provisions of the Bengal Tenancy Act, the purchaser at the resultant sale must, in order to get his name registered, furnish security and pay the fees as prescribed by the Regulation. In that case it might have been equally urged that the decree-holder zemindar had knowledge of the purchase at the rent sale and was bound to recognise the purchase.

Nor can any conclusion be drawn from the provisions of Section 7. Section 7 provides for attachment at the instance of the zemindar both in cases of purchases by private transfer or in execution of a decree of court and also in cases of sales under the Regulation. Section 7 merely provides for a remedy which enables the zemindar to enforce the payment of the fee and the furnishing of security in case the transferee is reluctant and does not comply with the terms of the Regulation.

In my view, a resume of the different provisions of the Regulation read in the light of the preamble amply justifies the conclusion reached by Roxburgh, J.

The result is that these appeals must fail and are dismissed with costs.

Sen, J.

I agree.