Sheo Gobind Singh vs Gouri Prasad and Others

Foster, J.—The parties in this second appeal are the persons interested in an 8 annas takhta of Mauza Fatehpur which was created by Civil Court partition. In this 8 annas takhta, Kulsum Bibi has 1 anna 12 dams share and she is the plaintiff No. 1. The defendants Nos. 8 and 9 have 3-annas 4 dams share, Kulsum Bibi''s brother, Malik Mukhtar Ahmad, had a share of 3-annas 4 dams. Malik Mukhtar Ahmad conveyed his share to Sheo Gobind Singh before the institution of the present suit on the 28th June, 1918 corresponding to Jeyth or Assarh 1325. F. There has been apparently some misapprehension as to the effect of this conveyance, for in the original Court the learned Munsiff has stated that though the document was executed in June, 1918, it did not come into operation until February, 1920. We have before us a translation of the conveyance which has not been impugned, and in it we see that Malik Mukhtar Ahmed transferred to Sheo Gobind Singh all his interest in this takhta of Fatehpur, together with arrears of mukarrari rent due to him from the mukarraridars up to 1325-F. At the end of the document it is recited "I have executed this sale-deed to safeguard our interest in future and this deed will come into force from the date of registration and the day my signature is affixed on the deed." The registration in fact took place shortly afterwards. There is no provision in the deed for it to take effect in 1920.

On the 16th September, 1918, Kulsum Bibi brought a suit in the Munsiff''s Court against the mukarraridars, the defendants Nos. 1 to 6, in respect of rent due for the years 1322 to 1325 to the extent of her share, amounting to something more than Rs. 900 out of a total rent of Rs. 1,092 including cesses. On the 12th December, her brother Malik Mukhtar Ahmad who had been made defendant No. 7 was, on his own application, made a co-plaintiff and thereupon the plaint was amended so as to include the amount of rent due to both the plaintiffs. This increased the claim to something over Rs. 3,000, and the suit was beyond the competence of the Munsiff. The plaint was returned and was presented in the Subordinate Judge''s Court on the 11th January, 1919. On the 21st February, 1920, Sheo Gobind Singh, the transferee from Malik Mukhtar Ahmad, with the consent of his transferor obtained substitution of his name as plaintiff. Now, although the entire body of landlords were impleaded, the suit is for part only of the rent. It is a suit that falls neither wider Section 148-A, nor Section 158-B of the Bengal Tenancy Act and it is manifestly not a "rent suit." The preliminary question that has arisen in this suit has been whether Sheo Gobind Singh who is a Mukhtar is barred by Section 136 of the Transfer of Property Act from joining in the present suit on the ground that he has purchased from Malik Mukhtar Ahmad who is an Honorary Magistrate. These facts are admitted; the only question is whether the section is applicable to the case.

Looking at Section 136 of the Transfer of Property Act we see that its terms are: "No Judge, legal practitioner, or officer connected with any Court of Justice shall buy, or traffic in, or stipulate for, or agree to receive, any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by, or through him, any actionable claim so dealt with by him as aforesaid." The words "actionable claim" are defined in Section 3 as meaning a "claim to any debt, other than a debt secured by mortgage of immovable property, or by hypothecation, or pledge of moveable property, or to any beneficial interest in moveable property, not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt, or beneficial interest, be existent, accruing, conditional, or contingent."

In the Court of the Subordinate Judge the suit was decreed, it being held that the suit was a "rent suit" and that the decree would create a charge and, therefore, the arrears of mukarrari rent did not constitute an actionable claim; and also on the ground that the plaintiffs'' case had been proved on the merits.

In the Court of Appeal, this preliminary point u/s 136 of the Transfer of Property Act was the only matter dealt with, and it held that the claim of Sheo Gobind Singh, plaintiff No. 2, was barred by that section. It is to be noted that the suit is for the arrears of rent from 1322 to 1325-F. and that these very arrears of rent were assigned by Malik Mukhtar Ahmad to the plaintiff, Sheo Gobind Singh, along with the conveyance of the share in the 8 annas takhtas, being arrears of rent due to the vendor.

Now the first question is whether the arrears of rent constitute an actionable claim within the meaning of Section 3 of the Transfer of Property Act. The definition of rent in the Bengal Tenancy Act as being "whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant" indicates, in my opinion, that arrears of rent are moveable property. It also appears to me that arrears of rent must, on this definition be taken, after accrual due, to be a debt within the meaning of Section 3 of the Transfer of Property Act. The point on which the controversy between the parties has taken a definite form is as to the meaning of the words "other than a debt secured by mortgage of immovable property." Admittedly these are the only words in the section that have to be considered in connection with the exceptions that are set out therein. We know what is meant by a mortgage: it is defined in Section 58 of the Transfer of Property Act as being "the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability." It is manifest that the arrears of rent in this case are not secured by a mortgage within this definition. It appears to me, therefore, that the arrears of rent after accrual constitute a debt and that debt was not secured by a mortgage. The learned Vakil for the respondents has put before us a case which appears to me to be in point. Hiralal Singha v. Tripura Charan Ray (1913) 40 Cal. 650. In that case the plaintiff sued both for arrears of rent that had accrued prior to his purchase of a house and for current rent, which had accrued after his purchase. There was a grave matter involved as to the plaintiff''s title which was put before a Full Bench, but the Divisional Bench had before it the question whether the purchase by the plaintiff, who was a pleader, was barred by Section 136 of the Transfer of Property Act, in so far as the arrears of rent were concerned. It was held that the claim for the amount of arrears of rent was barred by that section. When the whole case came up again before the Full Bench, it was conceded that the claim for arrears of rent was so barred and there was no further discussion of that matter. In such a case as that, Section 55 of the Transfer of Property Act would make the arrears of rent which had accrued prior to the transfer, a property that did not necessarily pass with a transfer and had to be specially mentioned, as was done in the present case. So, it is clear that here there is an actionable claim.

It has been urged on the other side that the words "other than a debt secured by mortgage of immovable property" should be taken to be equivalent in their application to this case, to "other than a debt secured by the charge created in Section 65 of the Bengal Tenancy Act." It is perfectly clear that although they have points of similarity, charges and mortgages are not the same thing. As I have pointed out, the definition of the word mortgage in the Transfer of Property Act itself is inapplicable to the case of arrears of rent, whereas on the other hand, there is nothing that is repugnant to the meaning of the words in speaking of rent being a charge on the holding or tenure, and in fact the expression is so applied in Section 65. If we find, therefore, as I do, that here there has been a transfer between a Magistrate and a Mukhtar of an actionable claim, it is unnecessary to go into the question whether the arrears of rent carry a charge or not. In my opinion this appeal fails and should be dismissed with costs.

Dawson Miller, C.J.

I agree. I merely wish to add that I doubt very much whether the Legislature in passing Section 136 of the Transfer of Property Act had in view a case such as the present, where a purchaser of a proprietary interest in land acquires at the same time and under the same instrument, a right to recover the rent in arrear at the time of the purchase. At the same time, we are bound to construe the section in its ordinary and natural meaning and regarded in this light, I entirely agree with the decision just pronounced by my learned brother and for the same reasons as he gives.