Tilakhdari Singh vs Chaturgan Bind and Others

Dawson Miller, C.J.—This is an appeal on behalf of the plaintiff under the Letters Patent from a decision of Mr. Justice Ross, reversing the decision of the District Judge and restoring that of the Munsiff.

The facts out of which the suit arises are as follows:--On the 16th January, 1917, Ram Piyar Bind, the father and predecessor-in-interest of the defendants, executed a zarpeshgi deed for a term of nine years from 1324 F., over 2 bighas 7 cottahs 12 dhurs of his occupancy holding in favour of the plaintiff in consideration of an advance of Rs. 975. The plaintiff in lieu of interest on the loan was to enter into possession, and take the profits arising out of the cultivation of the land after paying that proprietor''s rent amounting to Rs. 16 odd. In the event of the principal sum not being paid off at the end of the term the zarpeshgidar was to remain in possession upon the condition stipulated in the deed until repayment of the principal in Jeth of any succeeding year. The property was also hypothecated to secure repayment of the principal sum advanced if the zarpeshgidar should be dispossessed. Two days later Ram Piyar Bind executed a kabuliyat in favour of his mortgage. This document recites the previous zarpeshgi transaction and states that the zarpeshgidar has been in possession of the property and as the mortgagor wished to keep the property under his own cultivation paying the zarpeshgidar Rs. 75-7-0 annually as rent the latter had acceded to his request and granted him a simple lease for nine years from 1324 to 1333 F. at the rent named. The rent so arrived at may be assumed to include the Rs. 16 odd payable to the landlord and interest amounting roughly to 6 per cent. on the principal sum advanced. In the year 1919 the rent was in arrears and Piyar Bind having died the plaintiff instituted the present suit against his sons, the defendants.

The defendants challenged the genuineness of the Kabuliyat and pleaded payment of a smaller rent amounting to Rs. 24-7-0 which they contended was all that was payable according to the survey khatian. They further pleaded that their father was an old man with a disordered brain and was incapable of understanding the terms of the Kabuliyat. The genuineness of the zarpeshgi executed two days earlier was not challenged in the written statement.

The Munsiff rejected the plea of payment. He held that the only rent recoverable was that recorded in the survey khatian, namely, Rs. 24-7-0 and stated that he thought the plaintiff had succeeded in getting the kabuliat, executed but he had great doubt as to the genuineness of the transaction. It appears that at the recent revisional survey the Assistant Settlement Officer had entered the rent in the record-of-rights as Rs. 24-7-0 being of opinion that the plaintiff was the raiyat and Piyar Bind his under-raiyat and that u/s 48 of the Bengal Tenancy Act the plaintiff could not recover from his Under-raiyat more than 50 per cent. in excess of the rent payable by him to his superior landlord.

The plaintiff appealed to the District Judge who considered that the Assistant Settlement Officer and the Munsiff had proceeded upon an incorrect application of Section 48 of the Bengal Tenancy Act and that Piyar Bind by executing the zarpeshgi did not lose his original status of a raiyat. He accordingly varied the decree of the Trial Court and entered judgment for the plaintiff for the amount claimed with costs in both Courts.

The defendants preferred a second appeal to the High Court which came before Mr. Justice Boss. The learned Judge was of opinion that the zarpeshgi deed was both a lease and a mortgage and that the plaintiff by this transaction held directly under the landlord and not by way of sub-lease under the raiyat and that Piyar Bind ceased to be a raiyat as long as the lease was outstanding against him. He further considered that the kabuliyat did not create a lease of the raiyati interest of the land in the original raiyat but that he was an under-raiyat of the plaintiff and that Section 48 of the Bengal Tenancy Act was applicable in the circumstances of the case. He accordingly set aside the decree of the District Judge with coats and restored that of the Munsiff.

From that decision the present appeal has been preferred under the Letters Patent by the plaintiff.

In my opinion, the zarpeshgi was an instrument of mortgage and not a lease. The sum advanced was not paid by the zarpeshgidar as rent payable in advance for a certain period at the end of which the land was to be delivered up to the lessor. The profits after deducting the proportionate amount of rant payable to the landlord were to be taken as interest on the principal sum and even at the end of the term the zarpeshgidar was to remain in possession upon the same conditions until the principal sum should be repaid; and the property was hypothecated for repayment of the loan in the event of the zarpeshgidar being dispossessed. I think it is well established that a mortgagee, which I consider the zarpeshgidar was in this case, is not the tenant of his mortgagor. In fact in argument before us it was conceded that the mortgagee is not a raiyat. It was contended, however, that Piyar Bind and consequently the defendants were under raiyats within the meaning of the definition of that term in Section 5(3) of the Bengal Tenancy Act which defines under-raiyats as "tenants holding whether immediately or mediately under-raiyats." It was argued that Piyar Bind held if not immediately at least mediately under himself as a raiyat and was therefore an under-raiyat. I am unable to accede to the view that a person who is a raiyat can also be his own under-raiyat. I agree with the view of the District Judge that the mortgagor by the zarpeshgi transaction never ceased to be the raiyat holding under the landlord and he cannot, in such circumstances, be said to be an under-raiyat holding indirectly under himself.

A further point was raised that Piyar Bind was found to be incapable of understanding the effect of the kabuliyat. There is no definite finding by the Munsiff upon this point and the matter does not appear to have been urged in appeal before the District Judge as a defence to the suit. Moreover the defendants having remained in possession of the land under the kabuliyat cannot now be heard to say that it was not a genuine transaction. In my opinion, the appeal should be allowed the decree of Ross, J., should be set aside and that of the District Judge restored. The appellants are entitled to their costs of this appeal and of the appeal before Mr. Justice Ross.

Mullick, J.

On the 16th January, 1917, Ram Piyar Bind, the predecessor of the defendants, executed a zarpeshgi deed in respect of 2 bighas 7 cottahs 12 dhurs of kasht land in favour of the plaintiff for a consideration of Rs. 975. On the 18th January of the same year, Ram Piyar executed a kabuliyat for the land in favour of the plaintiff reserving a rent of Rs. 75-5-0 per annum for a term of 9 years from 1324 to 1333 F.S. In 1919, the defendants defaulted in the payment of the reserved rent in respect of the year 1325 and of part of the year 1326, and the plaintiff brought the present suit for recovery thereof.

The Munsiff decreed the suit at a rate of Rs. 24-7-0 per annum relying on a record-of-rights prepared under the Bengal Tenancy Act.

On appeal the District Judge of Chapra set aside the decree of the Munsiff and held that the defendants were not under-raiyats and that therefore Section 48 of the Bengal Tenancy Act was not applicable to the case and he decreed the suit at the full rate claimed.

There was a second appeal then to this Court and Mr. Justice Ross has reversed the decree of the District Judge and restored that of the Munsiff.

The present appeal is preferred under the Letters Patent against the judgment of Mr. Justice Ross.

Now the first question is what was the effect of the zarpeshgi deed of the 16th January, 1917. If it was a lease and not a mortgage, then the plaintiff became an under-raiyat of the first degree under Ram Piyar Bind who in turn by the Kabuliyat of the 18th January became an under-raiyat of the second degree under the plaintiff. In that case Section 48 of the Bengal Tenancy Act would operate to preclude the plaintiff from recovering from his under-raiyat more than 50 per cent. in excess of the rent payable by him to his superior landlord, that is to say, mare than a total rent of Rs. 24-7-0 as recorded by the Settlement Officer.

If, on the other hand, the zarpeshgi transaction was not a lease but a mortgage then the Kabuliyat of the 18th January, 1917, operated to create a raiyati tenancy and Section 48 would have no application.

The view taken by the learned Judge of this Court is that the transaction was both a lease and a mortgage. It seems to me that even in that case the transferee would be neither a raiyat nor an under-raiyat.

I am, however, of opinion that the document does not create any raiyati tenancy at all. The transfer in this case was for the purpose of securing the payment of money advanced and was no consideration for a price paid. The sum of Rs. 975 did not represent either wholly or in part an advance payment for the rent of the land. The deed recites that the transferee is to pay to the superior landlord the rental due from the raiyat which was a sum of Rs. 16-6-0 and that he was to pay himself the interest upon the mortgage money out of the proceeds of the land, and it is very similar to a zarpeshgi deed which was the subject of Ram Khetawan Roy v. Sambhoo Roy 2 C.W.N. 758. In that case the whole of the rent for a period of five years was to be taken by the zarpeshgidars on account of the profits of their zarpeshgi excepting one rupee which was to be paid yearly by them to the proprietors (the grantors) and if the zarpeshgi money was not paid at the end of the five years the zarpeshgidars were to remain in possession until payment. The decision was that the deed did not create a raiyati tenancy.

On the other hand it was held in Ramdhari v. M.H. Mackenzie 10 C.W.N. 351 that where the raiyat was already previously in possession as a raiyat he does not divest himself of his right to acquire a right of occupancy in the land by taking a zarpeshgi lease of the land.

Again in Damodar Narain Chowdhry v. Dalgleish (1911) 88 Cal. 432 it was held that a zarpeshgi lease which merely provided for a part of the rent to be paid in advance, there being no stipulation for the payment of interest on the money so advanced, did not create the relationship of mortgagor and mortgagee.

In the present case the contract was not merely for the cultivation of the land but also constituted a real and valid security to the transferee for the principal sum advanced by him and for the interest thereon and his possession was not merely that of a cultivator but of a creditor holding the land as security. In these circumstances the transferee was a mortgagee and not a raiyat within the meaning of Section 5, Clause (3) of the Bengal Tenancy Act. It follows therefore that by executing the kabuliyat of the 18th January, 1917. Ram Piyar Bind did not become a tenant holding immediately or mediately under a raiyat, and Section 48 of the Bengal Tenancy Act is not applicable.

For the purposes of this case it is immaterial whether the zarpeshgi and the kabuliyat constituted one transaction or two separate transactions and Chimman Lal v. Bahadur Singh (1901) 28 All. 338 has no application to the present case.

Nor does the decision in Uttam Chandra Daw v. Rajkrishna Dalal (1919) 47 Cal. 377 on which the learned Judge of this Court relies assist the defendants. In this last mentioned case a proprietor executed, is zarpeshgi mortgage in favour of the defendants who on the same day resettled the land with the proprietor as tenants. The mortgagor having defaulted in payment of rent the mortgagee sued for it, obtained a decree and in execution purchased the equity of redemption and took possession of the property. The plaintiffs alleged that they were purchasers of the equity of redemption from the mortgagors and filed a suit for redemption. The principal point decided in that case by a Full Bench was that the sale was not void but voidable and that although the mortgagee had purchased the equity of redemption in contravention of the terms of Section 99 of the Transfer of Property Act the sale was not a nullity and must be duly avoided and that the Plaintiffs were not entitled to redeem so long as it subsisted. One of the points in the case was whether the sale was held in execution of a rent decree or whether it was merely a sale in execution of a decree for arrears of interest upon the mortgage money. Mr. Justice Chatterjea in the course of his judgment observed that by executing the kabuliyat in favour of the mortgagee the mortgagor had become the tenant of the mortgagee within the meaning of the Bengal Tenancy Act. If I may say so the facts found in that case entirely supported this view and the mortgagor became a raiyat by reason of the terms of Section 5 of the Bengal Tenancy Act, which read together with the definition of proprietor the Act which includes a trustee. But a mortgagee from an occupancy raiyat is not in any sense a raiyat or under raiyat and a sub-tenant under him cannot be an under-raiyat.

A point was taken in the Trial Court that there had been no intelligent execution of the kabuliyathy Ram Piyar Bind. This defence does not appear to have been repeated before the District Judge and the point is no longer open.

The result is that the judgment of Mr. Justice Ross must be set aside and that of the District Judge restored. The appellant will be entitled to his costs in this Court.