Rani Prabhabati Sahed (?) and Others vs Lalji Mahto and Others

Agarwala, J.—This appeal arises out of a suit by the plaintiffs-respondents for a declaration that a decree obtained by the appellants-defendants first party in the suit against defendants second party, for arrears of rent of a tenure, does not affect their interest. The appellants are proprietors of the Banaili Raj whose ancestors granted a permanent tenure to the predecessors of defendants second party in 1878. The kabuliyat, by which the grant of this tenure was evidenced, provided that on the transfer of the tenure the transferee would be liable to pay 15 per cent, on the fixed jama to have his name recorded in the proprietor''s serishta, and that, in the case of non-payment of this mutation fee, the grantor would be entitled to realize it in such manner as he thought proper.

In 1915 the tenure-holders mortgaged the tenure to the plaintiffs, and, in 1929, the latter obtained a preliminary decree on the mortgage which was made absolute in 1930. In execution of this decree the plaintiffs purchased the tenure in 1931. The sale was confirmed on 22nd April 1938, and possession was delivered to the plaintiffs as auction purchasers on 2nd November of that year. On 26th November 1934, the appellants sued defendants second party for rent for the years 1338 to 1341 Fasli, that is to say, for the period from 29th September 1931, to 23rd September 1934, and obtained an ex parte decree. When they put this decree in execution, objection was raised by the plaintiffs, but this was overruled. The plaintiffs then made a claim under Order 21, Rule 58, which was dismissed. They then instituted the suit out of which this appeal has arisen.

The Court below granted the plaintiffs a declaration that the tenure purchased by them in execution of their mortgage decree against the tenure-holders is not liable to be sold in execution of the decree for rent obtained by the appellants against defendants second party. The question of law, on which the parties to this appeal are at issue, arises by reason of the fact that when the sale in execution of the h mortgage decree was made, the provisions of Section 13, Bihar Tenancy Act, were not complied with. Section 11 of that Act declares that permanent tenures are transferable subject to the other provisions of the Act.

Section 12 requires that such transfers shall be registered, and requires the registering authority, before effecting registration, to realize from the transferee a transfer fee of 2 per cent, and to transmit this fee and costs incidental thereto to the landlord. The payment of a transfer fee in the case of an involuntary transfer is dealt with in Section 13 of the Act. Sub-section (1) of that section provides that the Court which makes the decree shall require the transfer fee and the incidental costs of transmitting it to the landlord to be deposited by the transferee before the sale is confirmed, and Sub-section (2) requires that the fee shall be transmitted to the landlord after the sale has been confirmed. The provisions of this section not having been complied with, it is contended on behalf of the landlords appellant that they were entitled to regard defendants second party as the holders of the tenure when the suit of 1934 was instituted, and that as rent is a first charge on the tenure, they are entitled to sell it in execution of the decree which they obtained against the defendants second party. The difficulty in the way of this contention is that the effect of Sections 12 and 13, Tenancy Act, is that on a. voluntary sale being registered, or an involuntary sale being confirmed by the Court, the title in the property transferred passes to the transferee. Whatever doubt regarding this proposition may have existed formerly was set at rest by the Bengal Tenancy Validation and Amendment Act, 1903. Even before the passing of that Act it had been held Kirsto Bulluv Ghose v. Kirsto Lal Singh (1989) 16 Cal. 642 that the transfer of a permanent tenure is complete as soon as the document of transfer is registered u/s 12 of the Tenancy Act.

It is contended, however, that the transfer is only complete as between the transferor and transferee and that the landlord is not affected by it unless and until the transfer fee has been received by him. The relationship between landlord and tenant being founded on contract, express or implied, the liability of the tenant for the payment of rent exists for the term provided by the contract, but may come to an end even before that if the contract be rescinded, or the relationship of landlord and tenant is otherwise terminated in accordance with law. A permanent tenure being transferable by law, without the consent of the landlord, the liability I of the tenant for the payment of rent prima facie comes to an end on the completion of a valid transfer, and, as was pointed out in the case referred to above, the only thing which the Tenancy Act requires to be done in order to complete a transfer is its registration. Any proceedings for rent after the completion of the transfer must be against the transferee, and, any decree passed in a suit against a person other than the transferee cannot confer on the decree-holder the right to ignore the interest of the transferee and to create a charge on the tenure. This point was dealt with by Sir Comer Petheram in the case referred to as follows:

Then is there any reason or possibility to say that, notwithstanding the fact that the transfer was complete, this man (the transferor) still remained liable to his landlord. The liability here is a liability in consequence of the estate, and it is admitted that it is an ordinary rule that the liability ceases when the estate is transferred and the vendor ceases to have any estate in the property, but that, in whatever way the transfer may be made, the liability remains on the original tenant until notice has been given to the landlord. As to that point it is enough to say that the Act is absolutely silent upon the point, and we do not think that any such condition of things can be inferred from the provisions of the Act. If the Legislature had intended to impose any such limitation upon the right of transfer, we think they would have said so in so many words. They have not done so, and we think we cannot imply it from what they have said.

This case was cited before the Privy Council in AIR 1930 193 (Privy Council) in which it was held that where a landlord making only the original tenants and their heirs defendants, has obtained a decree for rent together with interest, which is not due or recoverable under the Act, and applies for a sale of the tenure under chap. 14 of the Act, transferees are entitled to a declaration of their interest and to restrain the sale. In support of the contention of the plaintiffs-respondents, the decision in Hemendra Nath Mukerji v. Kumar Nath Roy (''08) 12 C.W.N. 478 was also cited. The facts of that case are stated in the headnote. Certain cosharers in a permanent tenure by a deed, dated 2nd December 1893, which was registered, relinquished all their right, title and interest and claim in the tenure in favour of the remaining cosharer, who, it was stipulated, was to remain in possession and was to be entitled to sell the tenure. He was also to pay certain debts mentioned in the deed for which the other cosharers were to be under no liability. No landlord''s fee was paid as required by Section 12 of the Tenancy Act. It was held that the deed was a transfer within the meaning of Section 12 and, the transfer was complete as soon as the document was registered. The non-payment of the landlord''s fee did not render the transfer invalid owing to the operation of the Act of 1903. This decision was approved in Surapati Roy v. Ram Narain Mukerji AIR 1923 P.C. 88.

For the appellants reliance was placed on a decision of this Court in Saraswati Charan v. Surajdeo Narain AIR 1928 Pat. 367. The facts of that case, however, are distinguishable from the facts of the present case, and are thus summarised in the headnote: Where S purchased a holding at fixed rates in execution of a decree against the recorded tenants and falsely represented to the Court that the holding was an occupancy holding and, there. fore, the provisions of Section 13 which requires certain things to be done before the sale can be confirmed were not complied with, and where the landlords had no information as to the transaction, held, in a suit by the purchasers for recovery of possession of the holding which was subsequently purchased by the landlords in execution of a decree for arrears of rent against the recorded tenants, that notwithstanding the purchase, the landlords could still sue the recorded tenants, and the purchasers were estopped from contending that the rent suit against their transferors, the original tenants, was not properly constituted.

Clearly, in that case, the purchasers perpetrated a fraud on the Court by representing that the holding was an occupancy holding, whereas it was a holding at fixed rents, and could not be permitted to resile from that position when it suited their convenience to do so in a subsequent litigation. In the present case there was no fraud or false representation. Indeed, there can be little doubt that the appellants knew of the transfer to the plaintiffs before they instituted the suit of 1984 for during the proceedings in execution of the mortgage decree a receiver of the tenure was appointed, and on 8th September 1983, that is to say, more than a year before the institution of the rent suit of 1984, the receiver executed a promissory note in favour of the appellants in respect of arrears of rent for 1387 Fasli.

In my view, therefore, the decree obtained against the defendants second party by the appellants does not entitle them to sell the tenure, the title of which had passed to the plaintiffs on the sale in execution of the mortgage decree, and the latter are entitled to the relief which they claim. The appeal is dismissed with costs.

Imam J.

I agree.