Thakur Prosad Singh and Others vs Punuk Lall Mundar

O''Kinealy and Rampini, JJ.—This is a suit for arrears of rent, to which objection is raised by the defendant that the plaintiffs are not entitled to sue for rent, inasmuch as their names have not been registered under the provisions of Section 78 of Bengal Act VII of 1876. The learned District Judge has overruled this objection and decreed the suit, and the defendant now appeals to this Court.

We are of opinion that the judgment of the District Judge is not correct. We think that the objection u/s 78 of the Land Registration Act must prevail. The learned District Judge says that the case of Surjakanta Acharya Bahadur v. Hemanta Kumari (1889) ILR 16 Cal. 706 is not a precedent in this case, because that refers to a case of transfer of proprietorship and not to one, as in this case, of sons succeeding their parents. We think, however, that u/s 78 it is immaterial how the transfer of proprietorship is effected, whether it is a case of transfer by purchase or a case of transfer by succession. It is further apparent, under the provisions of Section 42 of the Act, that every person succeeding to the proprietary right in any estate, must apply for registration of his name. The learned pleader for the respondents in this case urges that his clients are governed by the Mitakshara law, and they succeed by survivorship. We think, however, that in these circumstances the provisions of the second clause of Section 42 of the Act still apply. In any case, the plaintiffs come within the terms of Section 78 of the Act, and they are barred from recovering rent by suit under the provisions of that section.

We decree the appeal, and, setting aside the decrees of both the lower Courts, dismiss the suit with costs in all the Courts.