Safedali Fakir vs Radharani Deb Sarkar

Das, J.—This appeal by the Defendant is directed against a judgment of Mookerjee J., dated June 14, 1950, passed in S.A. No. 300 of 1947.

The facts are not in controversy and may be stated as follows:

An occupancy holding, which is the disputed property, was held by one Maneshwari Dasi under the landlords, Parijat Charitable Trust Estate, represented by the receiver Raja Raj Krishna Deb Bahadur. The latter instituted a suit for recovery of rent, being Rent Suit No. 659 of 1943, against Maneshwari Dasi, in the First Court of the munsif at Diamond Harbour. The suit was duly framed under the provisions of Section 148A of the Bengal Tenancy Act (hereinafter called the Act). During the pendency of the suit for rent, on June 9, 1943, Maneshwari Dasi sold the whole of the occupancy holding to Bireshwar Deb Sarkar, husband of the Plaintiff, Radharani Deb Sarkar. Notice of the transfer of the occupancy holding u/s 26C of the Act was served on December 12, 1944.

The landlords, Parijat Charitable Trust Estate, obtained a decree in the said Rent Suit No. 659 of 1943 on August 31, 1943, and proceeded to execute the decree in Rent Execution Case No. 1446 of 1943 and put up the occupancy holding to sale on March 6, 1944, when the Plaintiff purchased the said holding. Bireshwar Deb Sarkar, the transferee, was not made a party to these proceedings. The Plaintiff took possession through court on June 9, 1946, and was resisted by the Defendant Appellant.

The Plaintiff caused to be served on the'' Defendant notice u/s 167, Bengal Tenancy Act. and thereafter brought the suit, out of which this appeal has arisen, for declaration of her title and for recovery of khas possession of the said holding. The defence of the contesting Defendant Appellant was that, on April 23, 1934, the said Maneshwari Dasi had granted a lease of the disputed property to himself and his nephew and that, on a partition, he has got the entire property in his share; that as the said Bireshwar Deb Sarkar, the purchaser of the said occupancy holding, had not been made a party, either in the rent suit or in the rent execution proceedings, the decree and the sale, at which the Plaintiff had purchased, had not the effect of a decree for rent or of a rent-sale under the provisions of the Act, and the Plaintiff, by her purchase, had not acquired the occupancy holding free from all encumbrances, but had merely purchased the right title and interest of the judgment debtor, ''Maneshwari Dasi, which was non-existent at the time and, as such, the Plaintiff had no title to the disputed occupancy holding, the title having remained with the Plaintiff''s husband, Bireshwar Deb Sarkar.

The trial court decreed the suit on the finding that, as notice of the transfer by Maneshwari Dasi to the Plaintiff''s husband, u/s 26C of the Act, was not served on the landlord till after the rent execution sale, the landlord was not bound to implead the transferee of the said occupancy holding from Maneshwari Dasi, and the decree and execution sale against Maneshwari had the effect of a rent-decree and a rent-sale, and that the Plaintiff acquired the occupancy holding itself free from the interest of the Defendant, who was an under-raiyat and that the Plaintiff was entitled to khas possession.

On appeal by the Defendant Appellant, the judgment and decree of the trial court was reversed and the Plaintiff''s prayer for khas possession was disallowed on the ground that the decree and sale had not the effect of a rent-decree and rent-sale and that the aforesaid Plaintiff had no title.

The Plaintiff preferred a Second Appeal to this Court. The appeal was heard by Mookerjee J. The appeal was allowed, on the view that, as the landlord had no knowledge or notice of the transfer by Maneshwari, the landlord was not bound to implead the transferee so as to obtain the benefits of a sale under Ch. XIV of the Act.

It is the propriety of this view which is in question in this appeal.

Mr. Mitter, learned advocate for the Defendant Appellant, has referred us to the case of Binapani Debi v. Banku Behari Mondal (1943) 47 C.W.N. 651; Kamalakshya Chowdhury v. Joychand Lal Babu (1943) 48 C.W.N. 105; Menajuddin v. Hironuddin Mullick (1946) 51 C.W.N. 914; and Nrishingha Prosad Bose v. Nilratan Singha Roy (1949) 54 C.W.N. 683 and has contended that, as in the present case, Maneshwari Dasi, the Defendant in the rent suit and the judgment-debtor in the rent execution case, had lost her interest in the occupancy holding before the passing of the decree for rent, the decree was not a rent-decree and the resultant sale in execution had not the effect of a rent-sale and did not pass the occupancy holding to the purchaser at the sale and did not confer on him the rights specified in Section 159 of the Act.

Dr. Sen Gupta, learned advocate for the Plaintiff Respondents, has pointed out that all the cases cited are distinguishable, inasmuch as, in all these cases, the landlord had either notice or knowledge of the transfer of the interest of the tenant. He has contended that the landlord, in order to secure to him the benefits conferred by Ch. XIV of the Act, is entitled to proceed against the tenant or tenants whose names appear in the rent-roll kept by him and, if he impleads all such persons, he is not bound to search out the persons who may have acquired interests in the tenancy and of whose purchase he had no knowledge or notice as. provided by the Act. He has referred us to the provisions of Section 26C(5) of the Act and to certain observations, of their Lordships of the Judicial Committee in the case of Jitendranath Ghosh v. Manmohan Ghosh (1930) ILR 58 Cal. 301 : L.R. 57 IndAp 214 : 34 C.W.N. 821.

I shall proceed to decide upon the contentions of the parties. The theory that a decree against the tenant, whose name is recorded in the landlord''s rent-roll, binds all unrecorded transferees has its origin in the earlier rent legislations and Section 27 of Act X of 1859 and Section 26 of Act VIII of 1869. made provisions for registration of transfers, etc., in the landlord''s rent-roll. Section 26 of Act VIII of 1869 entitled the landlord to sue the recorded tenant, i.e., a tenant whose name was recorded in his books and provided that the decree so obtained would bind the unrecorded transferee.

Act X of 1859 and Act VIII of 1869 were repealed by the present Bengal Tenancy Act (VIII of 1885). This Act does not contain similar provisions. It introduced a totally different system providing for service of notices of transfer and succession in case of permanent tenures and raiyaties at fixed rates. The transferee or the successor was required to deposit the requisite fees which would be transmitted by the Collector to the landlord under the provisions of Sections 12, 13, 15 in case of permanent tenures and u/s 18(1)(a) in case of raiyaties at fixed rates. In the case of Kristo Bulluv Ghose v. Kristo Lal Singh (1889) ILR 16 Cal. 642, it was held by this Court that a transfer of a permanent tenure is complete as soon as the deed of transfer is registered and that the non-service of the notice of the transfer on the landlord was not material. The reason for the decision was stated by Petheram C.J. to be that the liability for rent is a liability in consequence of the estate, and that the ordinary rule is that the liability ceases when the estate is transferred and the vendor ceases to have any estate in the property and that there is nothing in the Act which indicates that the legislature intended to impose any limitation upon the right to transfer by making it dependent on the receipt of notice by the landlord (see pp. 644-645). The above decision was followed in the case of Chintamoni Dutt v. Rash Behari Mondal (1891) ILR 19 Cal. 17, though not without a mild murmur by the learned Judges that the rule might involve a hardship on the landlord, who might not have received the notice by some neglect on the part of the Registrar or the Collector. The view taken in Kristo Bullav Ghose''s case (supra) was reaffirmed in the case of Hemendra Nath Mukerji v. Kumar Nath Roy (1908) 12 C.W.N. 478 and must now be taken to be finally settled by the decision of the Privy Council in the case of Surapati Roy v. Ram Narayan Mukherji (1923) ILR 50 Cal. 680 : L.R. 50 IndAp 155.

In the case of Babar All v. Krishnamani Dassi (1899) ILR 26 Cal. 603, Rampini J. held that, if the landlord''s fees were not at all paid, the transfer would be invalid. But this decision was superseded by Bengal Act I of 1903, which enacted that non-payment of the landlord''s fees would not invalidate the transfer.

It follows, therefore, that the non-payment of landlord''s fee or the non-service of the notice under Sections 12, 13, 15, 18(l)(a) and 26C of the Act is immaterial, and that neither of these facts justifies the landlord in suing for rent the transferor whose name may remain in the landlord''s rent-roll inspite of transfer or succession. The landlord is ordinarily bound to see the tenant in whom the estate is vested. The charge created by Section 65 of the Bengal Tenancy Act can only be availed of by the landlord if he gets an effective decree for rent by proceeding either against the person in whom the estate is vested or against the person who represents the estate.

Section 146A of the Act, which was added by the Bengal Tenancy (Amendment) Act IV of 1928, proceeds on the theory of representation of the tenancy by the Defendant or the judgment-debtor. A reference to Section 146A(5) shows that the entire body of co-sharer tenants in a tenure or holding is deemed to be represented if the Defendants to the suit for rent include the four categories mentioned in Clauses (i) to (iv) of that section.

These clauses have been held to be conjunctive : Amulya Charan Misra v. Prankrishna Adhikary (1938) 42 C.W.N. 755; Tayaja Molla v. Birendra Nath Roy (1938) 43 C.W.N. 80. It would appear from an examination of the said four clauses that the landlord is bound to implead not merely persons whose names appear in his rent-roll or who have given notices under Sections 12(3), 15, or 26C of the Act, but other categories of persons as well.

It may be noted that the Act does not say who is to be sued for rent. Section 148A speaks of the impleading of certain persons as landlords. In the absence of any clear provision in the Act, I see no reason why, in a suit for rent, the decree wherein may have very grave consequences under Oh. XIV of the Act, the landlord should be permitted to depart from the ordinary rule that no person shall be bound by a proceeding to which he or his representative is no party. In my opinion, the landlord, in order that he may avail himself of the rights conferred by Ch. XIV of the Act, must implead as Defendants, the persons in whom the tenancy is vested or persons who represent the said'' persons. It is not sufficient merely to implead, the persons whose names appear in the landlord''s rent-roll.

The view taken by me underlies the decision in Binapani''s case (1943) 47 C.W.N. 651 and was the basis of the decision in Nrishingha Prosad''s case (1949) 54 C.W.N. 683 to which I was a party.

Dr. Sen Gupta has contended that the above view is opposed to the plain implications of the following observations in Jitendra''s case (1930) ILR 58 Cal. 301, 308 : L.R. 57 IndAp 241:

In this state of the law their Lordships can see no foundation for the contention that a landlord can ignore all transfers of the tenure and rely upon decrees obtained by him against persons whom he chooses for his own purposes still to record as his tenants, though he knows, or must be taken to know, that their interest in the tenure has ceased.

In my opinion, the above observations have reference to the question of representation. A landlord who has received the notice under Sections 12, 15, or 26C of the Act or who knows about the cessation of the interest of a tenant by transfer or succession, cannot be heard to say that the outgoing tenant still represents the transferee or the successor.

That the principle of representation is the basis of the decision in Jitendra''s case (supra) will appear from the following passage at 309'':

If it was, as is now admitted, statutorily transferable, their Lordships know of no principle of law, nor have they been referred to any provision of the Act, which justifies the contention of the Appellants. It would indeed appear from the decision of the Board in Surapati Roy v. Ram Narayan Mukerji (supra) and Ors. eases decided in India see, for instance, Chintamoni Dutt v. Rash Behari Mondul, (supra), that the original tenure-holders would no longer be liable for the rent, and that an effective decree, therefore, could only be obtained against the transferees. But in the present case, it being clear to their Lordships that the decrees which the Appellants claim to execute by the sale of the tenure were not, for the reasons assigned by the High Court, proper rent decrees, they think it is impossible to hold that the Respondents are bound by them.

The reasons given by the High Court, which their Lordships approved, are to be found at p. 825:

They are no doubt entitled to recover rent against one or some of the heirs of the tenants, but in order that a decree can be treated as a decree for rent all the parties interested in the tenure must be made parties there being no finding nor evidence that the persons against whom the rent suits were brought represented the whole body of tenants with their consent.

The above remarks also apply to the observations of Mukherji J. in Menajuddin v. Heronuddin Mullick (1946) 51 C.W.N. 914, which are quoted in the judgment now under appeal and to which Dr. Sen Gupta also drew our attention.

The decision of Henderson J. in Surendranath Haldar v. Pratap Chandra Majhi (1942) 76 C.L.J. 248, 249 was not based on the effect of service of a notice u/s 13 of the Act. It proceeded on the ground that--

There was no statutory provision which requires a decree-holder. to give a notice to a person who is not the judgement-debtor or a representative of the judgment-debtor.

As was pointed out in Nrishingha Prosad''s. case (supra), the above considerations as to notice referred to by Henderson J. are either irrelevant or unnecessary.

In the case of Nagendranath Sinha Saha Roy v. Niranjan Patra (1937) 41 C.W.N. 1173, which was also relied on by Dr. Sen Gupta, the facts were that a suit for rent was instituted against a large body of co-tenants; portions of the tenancy had been purchased by the principal Respondents during the pendency of the rent-suit. It was found as a fact that the requirements of Section 146A(3) were complied with and that notice of transfer was served after the passing of the decree. The landlord thereupon wanted to implead the transferees at the execution stage. This prayer was opposed by the transferees. In these circumstances, M.C. Ghose J. held that--

As the decree for rent had satisfied the condition laid down in Section 146A, the total holding will pass in execution of the decree if brought to sale.

The decision does not militate against the view that the tenancy should be represented in the suit and in the execution proceeding by the Defendants or the judgment-debtors, as the case might be.

Dr. Sen Gupta has also referred us to the provisions of Section 26C(5), which requires the landlords not to refuse to recognise the transferee as the tenant, nor to omit to enter the transferee''s name in the landlord''s rent-roll in place of the transferor. This provision was, in my opinion, inserted with a view to benefit the tenant. It imposes upon the landlord the duty of impleading the transferee, who had given notice of transfer, as a party to the suit or the execution proceeding: vide Section 146A(5). The provision was not intended to enable the landlord to get an effective rent-decree by merely impleading persons whose names appear in the rent-roll. The view contended for by Dr. Sen Gupta, if accepted, would be hard on transferees from tenants. The names of the landlords may be unknown to the transferees or the transferor and may also be difficult of ascertainment. Again, even if the names of the landlords are ascertained and the fee is paid by the transferee, notices of the transfer may not issue or may not be served through the neglect of the Collector or the peon over whose act the transferee has no control. There is, moreover, no provision for a second issue of notice, in case the first deposit of fee fails to be effective.

Nor can the provisions of Section 73 of the Act assist the landlord in this case. In the present case, the transfer of the occupancy holding took place during the pendency of the rent-suit. The effect of Section 73 was that both Maneshwari Dasi and Bireshwar Deb Sarkar became jointly and severally liable to the landlord for the arrears in suit. On the principles enacted by this Court in Jitendra''s case (supra), and which were approved by the Privy Council, the landlord was required either to implead both the transferee and transferor in order to get an effective rent-decree or to shew that the transferor represented the transferee as well.

Dr. Sen Gupta has also contended that there is nothing in the decision in Forbes v. Maharaj Bahadur Singh (1913) 1.L.R. 41 Cal 926 : L.R. 41 IndAp 91 which justifies its application to cases of cessation of the interest of a sole tenant or of a co-tenant. This contention has been negatived in a series of decisions of this Court. The point has been discussed at length in Nrishingha Prosad''s case (supra) already referred to.

It is also immaterial whether the cessation of interest of the tenant took place before the suit for rent or during its pendency or in the stage of execution. In the case of Jitendranath Ghosh v. Manmohan Ghosh (supra), the interest of the tenant had ceased before the rent suit. In the case of The Official Trustee of Bengal v. Puma Chandra Roy (1930) 34 C.W.N. 702, the cessation had taken place pendente lite. In the cases of Binapani Devi v. Banku Bekary Mondal (supra); Kamalakshya Chowdhury v. Joy-chand Lal Bahu (1943) 48 C.W.N. 105; Minajuddin v. Heronuddin Miullick (1946) 51 C.W.N. 914 and Nrishingha Prasad, Bone v. Nilratan Singha Roy (supra) cessation had taken place after the passing of the rent-decree. Section 146A(2) of the Act is in consonance with the view that the cessation of interest may take place either before or after the institution of the rent suit or of the rent execution.

The above contention raised by Dr. Sen Gupta is, therefore, of no substance.

The view taken by Mookerji J. in the judgment under appeal to the effect that the decree obtained by the landlord against the recorded tenant, without impleading the transferee from the latter, has the effect of a rent-decree and the sale held thereunder in proceedings carried on only against the recorded tenant, has the effect of a rent-sale in a case where the landlord did not receive notice of the transfer till after the sale, requires some modification. The question to be considered in such a case is not simply whether the notice of the transfer was served on the landlord, but whether the Defendant to the suit or the judgment-debtor in the execution proceedings represented the tenancy.

The above question is one of fact depending upon the evidence in each case, the fact of non-receipt of the requisite notice is a relevant fact to be considered along with other facts of the case, in deciding the question of representation of the tenancy.

It may also be pointed out that the burden of proving whether the Defendant in the suit for rent or the judgment-debtor in the execution proceedings represented the tenure or holding rests on the landlord. Baikonta Nath Roy v. Thakur Debendra Nath Sahi (1906) 11 C.W.N. 676.

In the present case, the case was not approached from the point of view indicated above. No issue was framed on the point.

In these circumstances, we are of the opinion that the following issue should be framed:

Whether, Maneshwari Dasi represented the tenancy in the suit for rent and in the execution proceedings?

Both parties will be allowed to lead further evidence on this issue only. The evidence on record will also be evidence in the case.

If the Court finds that the tenancy was represented by Maneshwari Dasi during the suit for rent and in the execution proceedings, the suit will be decreed. If, however, the court finds that the tenancy was not represented by Maneshwari Dasi either in the suit for rent or in the course of the execution proceedings, the suit will be dismissed.

The result, therefore, is that the judgments of Mookerji J. and of the courts below are set aside and this case is remitted to the trial court for a decision of the suit in the light of. the observations made in this judgment.

Costs of all courts and of the appeal will abide the final result of the suit.

Lahiri, J.

I agree.