Umeshwardhari Singh and Others vs Neman Singh and Others

Kulwant Sahay, J.—These appeals arise out of suits for naqdi and bhaoli rente for the years 1329 and 1330 F S. The plaintiffs claim the rent as lessees. The defence was that the plaintiffs were not lessees, but mortgagees and as such they could not maintain the suits as they were not registered under the Land Registration Act. Other objections as regards the kind and quantities and the sale rates of the produce in respect of the bhaoli rent and also payment of rent were also taken. The learned Munsif held that the plaintiffs were lessees and not mortgagees and, therefore, it was not necessary for them to have themselves registered under the Land Registration Act. He disallowed the plea of payment and gave a decree in favour of the plaintiffs at certain reduced rates. On appeal by the defendants the learned District Judge has held that the plaintiffs were mortgagees and not lessees and as such it was necessary for them to have themselves registered under the Land Registration Act before they could maintain the suits. He agreed with the learned Munsif on the other points decided by him. He dismissed the suit simply on the ground of want of registration of the plaintiffs under the Land Registration Act. The plaintiffs have come up in second appeal to this Court.

It appears that after the decision of the appeal by the District Judge the plaintiffs got themselves registered under the Land Registration Act on 26th August 1926 Two questions have been raised on behalf of the appellants in these appeals First, whether they were lessees or mortgagees in possession; and secondly, if they were mortgagees whether they were entitled to a decree for rent having regard to the fact that they have now got themselves registered under the Land Registration Act. It is not disputed on behalf of the defendants respondents that the plaintiffs have got themselves registered under the Land Registration Act after the disposal of the appeals by the District Judge. It is however, contended on behalf of the respondents that the plaintiffs are mortgagees and that the suits were not maintainable at all before they were registered and that the subsequent registration will not entitle them to a decree in these second appeals.

As regards the question whether the plaintiffs are lessees or mortgagees in possession, I am inclined to agree with the view taken by the learned District Judge. The instrument under which the plaintiffs claim title has been placed before us, and on a reference thereto it is clear that the sum of Rs. 1,000 advanced by the plaintiffs as zarpeshgi did not represent a security for the payment of rent but was really an advance of a loan which was repayable in one lump sum in the year 1336. The question whether the sum advanced by the plaintiffs was by way of security or as a loan would depend on the intention of the parties as it can be gathered from the instrument itself, and taking the instrument as a whole it seems to me that there can be no doubt that the sum advanced was a loan. It is true that the sum advanced represents one year''s rent, but the rent was payable in certain instalments and the covenant by the parties was that the principal amount advanced would be repayable in one lump sum and at one time in the year 1336.

There is no provision in the deed that the sum advanced would be set off in the rent for the last year. In Mohammad Hanif v. Moorat Mahton [1918] 4 P. L.W. 146 it was held by a Division Bench of this Court that no general rule can be laid down as to the effect of a zarpeshgi transaction and that every case must depend upon its own facts. The instrument in that case was a zarpeshgi ijara and the terms were somewhat similar to the terms of the document now before us. It was held that the relationship created was that of a mortgagor and mortgagee and not that of a lessor and lessee. It is tree that in the document before us there is no hypothecation clause, but the property itself was made over to be held by the plaintiffs till the repayment of the advance of Rs. 1,000 and in effect it created a mortgage with possession and, as was observed by this Court in Hitendra Singh v. Rameshwar Singh Bahadur AIR Rs. 1921 Patna 43, when there is a debt and a security of land for its repayment, the arrangement must be regarded as a mortgage by whatever name it may be called. In Maharaw Kesho Prasad Singh Bahadur Vs. Chandrika Prasad Singh and Others, it was laid down that the test in such cases must be whether there is a secured debt and a right of redemption, and that if there is a right of redemption the transaction has the essential characteristics of a mortgage, otherwise it is a lease. Having regard to the terms of the document before us I agree with the learned District Judge that the relationship created by it was that of a mortgagor and mortgagee and not of a lessor and lessee. The plaintiffs must, therefore, be deemed to be mortgagees in possession.

The question next arises whether the plaintiffs as mortgagees are entitled to maintain the suits without getting themselves registered under the Bengal Land Registration Act (7 of 1876). Section 78 of the Act provides that no person shall be bound to pay rent to any person claiming such rent as proprietor, or manager, of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee unless the name of such claimant shall have been registered under this Act. It is, therefore, clear that the defendants were not bound to pay rent to the plaintiffs as mortgagees until their names had been registered under the Act. The plaintiffs, however, have now got themselves registered. The question is whether they are now entitled to a decree for the rents claimed by them.

It is contended on behalf of the defendants that the suits were not maintainable and that the plaintiffs had no cause of action at the time they instituted the suit inasmuch as they were not registered under the Act. The question, however, has been considered on various occasions.

In Dhoronidhar Sen v. Wajid-un-nissa Khatoon [1888] 16 Cal. 708 note Petheram, C.J., and Tottenham, J., held that the plaintiff not having been registered under Act 7 of 1876 at the time the suit was filed was not competent to institute it. The plaintiff had in that case, however, got himself registered during the pendency of the suit and before the decree was made; but it was held that having regard to the provisions of Section 78, Land Registration Act, as the tenant was not bound to pay rent to a person not registered such person was not competent to sue him until registered. This view was followed by Pettenham and Banerjee, JJ., in Surya Kant Acharya v. Hemant Kumari Devi [1889] 16 Cal. 706. There also the plaintiff was not registered when the suit was brought nor was he registered at the time the decree was passed by the trial Court. But before the suit was decided the plaintiff had made an application to have her name registered. It was held that mere application for registration was not sufficient, but that the provisions of Section 78 required that before a person sues for rent claiming as proprietor such person must be registered under the Act, for if a tenant is not bound to pay rent to an unregistered proprietor he is not liable to be sued for it.

In the Full Bench case of Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 a suit for rent was instituted in the Calcutta Small Cause Court for arrears of rent of certain premises in Calcutta. At the time the suit was instituted the plaintiff had not caused his name to be registered under the Land Registration Act, but at the first hearing he produced the certificate of registration which he had obtained since bringing the suit. An objection was taken that the suit was not maintainable u/s 78 of the Act inasmuch as the plaintiff had not been registered at the time the suit was instituted. A reference was made by the Small Cause Court to the Calcutta High Court for opinion on the question whether the plaintiff not having registered himself as proprietor under the Bengal Land Registration Act before suing was entitled to proceed with the suit. When the reference came on for hearing the learned Judges were not unanimous in answering this question and they referred the following questions be the Full Bench:

(1) Whether the suit as brought by the plaintiff, an unregistered proprietor, should be dismissed, or whether, a certificate of the plaintiff having been registered as proprietor under the Land Registration Act having been produced when the suit came on for trial, the trial can proceed.

(2) Was the case of Dhoronidhur Sen v. Wajid-un-nissa Khatoon [1888] 16 Cal. 708 note rightly decided? Petheram, C.J., and Beverley, J. were of opinion that the suit could not proceed inasmuch as the plaintiff had no cause of action on the date he instituted the suit. Prinsep, Norris and Ghose, JJ., however, were of opinion that the suit could -proceed. Norris J. was of opinion that the case of Dhoronidhur Sen v. Wajid-un-nissa Khatoon [1888] 16 Cal. 708 note was wrongly decided. Prinsep and Ghose JJ., however, expressed no opinion on the point inasmuch as that case came from a place where the Bengal Tenancy Act was in force and the effect of Section 60 of the Act had to be considered, whereas in the case before them which came from the town of Calcutta where the Bengal Tenancy Act was not in force that question did not arise. Prinsep, J. was of opinion that the right of an unregistered landlord was in no way questioned by the Land Registration Act. It was rather recognized by Section 81 of the Act, and the object of the legislature in enacting Section 78 was to place an impediment in the way of realization by such a person of rents due to him by depriving him of the right to a decree until he shall have fully complied with the law; and this view was concurred in by Norris and Ghose, JJ.

In Abdul Khair v. Meher Ali [1899] 26 Cal. 712 the same question was again raised. There also the plaintiff was not registered at the time the suit was instituted but got his name registered during the pendency of the suit. The Munsif decreed the suit; but on appeal the Subordinate Judge dismissed the suit on the ground that it was not maintainable by the plaintiff who was not the registered proprietor at the time the suit Was brought, and Macpherson and Stevens, JJ. held that the view expressed by the majority of the Judges composing the Full Bench in the case of Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 was applicable even where the Bengal Tenancy Act was in force, and held that the suit wag maintainable although the plaintiff was not registered at the time of the institution of the suit but he got himself registered during the pendency of the suit.

The same view was taken by Maclean, C.J. and Macpherson, J. in R. Belchambers v. Bussan Ali 2 C.W.N. 498. This case also came from a place where the Bengal Tenancy Act was in force.

In Harekrishna Das v. Brindabun Shaha 1 C.W.N. 712 Macpherson and Ameer Ali, JJ, held that a suit for arrears of rent could not be dismissed merely on the ground of the plaintiff''s name not being registered under the Land Registration Act at the time the suit was brought and it was sufficient if the name was registered before the decree was made. This was also a mufassil case where the Bengal Tenancy Act was in force and the decision of the Full Bench in Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 was followed.

In all these cases the plaintiff had got his name registered during the pendency of the suit in the trial Court. In Balak Mahto v. Mathura Ram Dubbey [1919] 52 I.C. 267 the plaintiff was not registered until after the decision of the suit by the trial Court but was registered during the pendency of the appeal preferred by the defendant before the District Judge and it was held by Atkinson, J., following the principle involved in some of the cases cited above, that the plaintiff was entitled to a decree from the District Judge if the facts otherwise justified a decree being granted in his favour. In the appeals now before us, however, the plaintiffs were not registered until after the decision of the appeal by the lower appellate Court. The question is whether the principle involved in the cases referred to above can be applied to the present appeals.

On a careful consideration, I am of opinion that there is no reason why the view taken by Atkinson, J., should not be applied to the present appeals. If a proprietor is entitled to a decree for rent if he gets himself registered during the pendency of the suit in the trial Court I see no difference in principle why he should not be entitled to a decree if he gets himself registered during the pendency of the suit in first or second appeal. It is true that the decree of the District Judge was correct at the time it was made, but the Court is not precluded from taking notice of events which have happened since the disposal of the appeals by the District Judge and during the pendency of the present appeals. It was held in the Full Bench case of Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 that an unregistered proprietor does not lose his right as a proprietor and a registered proprietor does not acquire a right by his merely being a registered proprietor if he had not the right to recover the rent from the tenant. If a registered proprietor transfers his interest and the transferee is not registered the registered proprietor loses the right to recover the rent and the transferee, though unregistered, acquires the right to recover the rent. Section 60, Ben. Ten. Act and Section 79, Land Registration Act, merely indemnify a tenant who pays his rent to the person registered. They do not, however, take away the right of the unregistered proprietor, and u/s 81, Land Registration Act, the unregistered proprietor is entitled to recover the rent from the registered proprietor who has realized it although he had no right to do so. It is thus clear that if an unregistered proprietor is entitled to the rent he had a cause of action to bring a suit for the realization of the rent.

It is true that u/s 78, the tenant was not bound to pay him the rent, but the non-registration of the name of the proprietor was merely art impediment to his recovering the rent; it did in no way affect the cause of action. The present plaintiffs, therefore, had a cause of action at the time they instituted the suits, but there was an impediment in their recovering a decree inasmuch as they had not got their names registered under the Act. That impediment has now been removed, and I see no reason why a decree should not be made in their favour for the rents due to them. To drive them to a fresh suit would be manifestly unjust and inequitable. They were under the bona fide belief that it was not necessary for them to have their names registered. The trial Court took the same view and it was only after the decision of the learned District Judge that they discovered that it was necessary for them to have their names registered under the Land Registration Act. They thereupon got their names registered. As observed by Roe, J., in Narain Prasad v. Gaju Mahta [1917] 2 P. L.J. 701 it would be inequitable to refer the plaintiffs to a fresh suit whereby large sums would be lost by limitation. This was a case under Sections 15 and 16, Ben. Ten. Act, but the principle applicable is the same.

It is, however, contended on behalf of the respondents that on the date the plaintiffs got themselves registered, i.e., 26th August 1926 (corresponding with 3rd Bhado 1333 F.S. the claim for the rent for the year 1329 had become barred by limitation and, that, therefore, the plaintiffs are not entitled to recover a decree for the rant of that year. If, however, I am correct in my view that the plaintiff had a cause of action at the time they instituted the suits and the suits were properly instituted then the claim for 1329 cannot be held to be barred. It is true that no notice of the registration of the plaintiffs'' names was given to the defendants, but no notice was required to be given. If the plaintiffs had been registered before the suit, the defendants could not have raised the objection that they had no notice of it. Plaintiffs are, therefore, entitled to recover the rents for both the years 1329 and 1330 F.S. The tenants-defendants, however, were not bound to pay the rent up to 26th August 1926 when the plaintiffs were registered and therefore they are not liable for costs or interest. The ground upon which I propose to set aside the decree of the lower appellate Court may not come within Section 100, Civil P.C., but the provisions of Order 41, Rule 33, appear to be wide enough to enable this Court to do justice between the parties.

The learned Munsif had granted a decree to the plaintiffs for the produce rents and cesses for the years under claim on the basis of the kinds, quantities and sale rates fixed by him and naqdi rents and cesses as claimed and proportionate damages at 121/2 per cent. only. I am of opinion that the decree of the Munsif ought to be restored with certain modifications. I would set aside the decree of the District Judge and restore the decree of the Munsif with the modification that a decree for rent be made in each case in favour of the plaintiffs for the produce rent as well as the naqdi rents with cesses as found by the Munsif. Damages at 121/2 per cent will be calculated upon the rents found due. The defendants had the use of the money for all these years and withheld payment even to the recorded proprietors and it is only fair that they should pay the damages. The plaintiffs will not be entitled to their costs in any Court. The defendants will be entitled to their costs in the Munsif''s Court as well as in the District Judge''s Court, but they will not be entitled to their costs in this Court.

Macpherson, J.

I regret that I am unable to agree to the order proposed or with the views expressed in the last three paragraphs of the judgment of my learned brother In my opinion this appeal should be dismissed and particularly in regard to the portion of the claim which was already barred by limitation on 26th August 1926.

The plaintiff appellant is a mortgagee under proprietors of an estate. As such he may u/s 44, Land Registration Act 1876, apply to the Collector for registration of his name as such mortgagee. A proprietor or manager on the other hand is bound to apply for registration within six months of succession or taking overcharge. And u/s 78 no person is bound to pay rent to any person claiming such rent as proprietor, manager or mortgagee who is unregistered. In this case the mortgagee who sued for rent of 1329 and 1330 was not registered during the pendency of the suit or of. the first appeal or till near the end of 1333 when the litigation was pending for nine months in second appeal on another point.

Assuming that the interpretation of Section 78 in Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 should be followed either because it is right (on which point I find myself, with respect in agreement with the minority of two Judges) or on the principle of stare decisis, yet that decision and the Calcutta cases which follow it, do not go beyond this that in spite of Section 78 a decree for rent of a tenancy may be passed in favour of the plaintiff rent receiver if "his name shall have been registered under the Act" during the pendency in the trial Court of a suit to recover the rent.

To my mind there is no warrant for the extension of this principle to a case in which registration has been effected, while the litigation is at the stage of appeal and still less when it has been effected at a time when a rent suit for the rent which under the enactment the defendant was not bound to pay, is also already barred by statutory limitation.

The only reported decision of this Court on the point is Balak Mahto v. Mathura Ram Dubey [1919] 52 I.C. 267 where a single Judge held that the principle of the majority decision in Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 might be extended to the case where the registration was effected while the matter was pending in first appeal. It is to be observed that in that case the defendant had not seriously pressed his objection u/s 78 in the trial Court and the suit was decreed. Both parties appealed and before the hearing the plaintiffs got their names registered and the District Judge held that they were entitled to the benefit of the decree already passed in their favour. The learned Judge of this Court upheld that view relying upon Narain Prasad v. Gaju Mahton [1917] 2 P. L.J. 701 as an authority of this Court.

That case, however, is not directly in point and provides but trail support. It relates to Sections 15 and 16, Bengal Tenancy Act, and is readily distinguishable. In the first place the circumstances were special and the finding very restricted. It was pointed out that the objection that Section 16 was a bar was not seriously pressed in the Court of first instance and the view of the Court was that the principle enunciated in Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 is applicable if the provisions of Section 15 have been complied with before the case comes on in appeal in the Court of first appeal

at least in the cases in which the objection was not seriously pressed in the lower Court and the suit was decreed.

The present case thus differs from the two cases cited inter alia in that the objection was here pressed in the first Court. It only failed through a misapprehension on the part of the Munsif on another point in the suit. It was the main contention in appeal, and it was successful there. The plaintiff is here the appellant, whereas in Balak Mahto v. Mathura Ram Dubey [1919] 52 I.C. 267 the decree already obtained by the plaintiffs was being assailed.

Again Section 16, Bengal Tenancy Act, differs substantially from Section 78, Land Registration Act, 1876. The former sets out that a person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit, distraint or other proceeding any rent payable to him as the holder of the tenure, until the Collector has received the notice for service on the landlord, the landlord''s fee and the costs necessary for its transmission to the landlord. It prohibits recovery of the rent by suit, the liability to payment is not affected. Section 78 on the other hand enacts that the liability of the tenant to pay the rent shall not arise until the rent-receiver''s name has been registered.

Then the provisions of Sections 44 and 78, Land Registration Act, are, as is evident from para. 2 above, for the benefit of the tenant, whereas Sections 15 and 16, Bengal Tenancy Act, are enacted for the benefit of the tenure-holder''s superior landlord, and in a suit for rent different considerations, therefore, arise from the two sets of provisions.

It appears to mo that when a suit or appeal has been dismissed by reason of the provisions of Section 78, the plaintiff cannot in appeal or in second appeal therefrom demand a decree on the ground of compliance with these provisions at a date subsequent to the dismissal of his suit or appeal. Such an extension of the principle enunciated in Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 would, it seems to me, fritter away the provisions of Section 78 to an extent altogether unreasonable and in frank defiance of the intentions of the legislature.

But apart from general considerations there are special reasons in this case why the plaintiffs-appellant''s appeal should not be accepted.

The appellate Court has rightly held that Section 78 was a bar to the present appellant''s suits. From the decision of the appellate Court no second appeal could arise on that point. The second appeal of the plaintiffs-appellants could be admitted only on the contention that the demise in his favour was a lease and not a mortgage. That contention has failed. In the circumstances even though an appellate Court may take notice of events subsequent to the date of the judgment under appeal, it would to my mind be anything but a sound exercise of discretion to do so in this instance and to decree a second appeal on new evidence and on a ground which at the time when the appeal was admitted did not exist and which does not come within Section 100(1), Civil P.C.

Another consideration of importance also stands in the way of the plaintiff as regards the rent of 1329. Under Article 2, Schedule 3, Bengal Tenancy Act, the, period of limitation for the recovery of an arrear of rent by suit is three years from the last day of the agricultural year in which the rent fell due Accordingly a suit for the arrears of 1329 was barred from the end of 1332 so that throughout the whole period of limitation for a suit, the tenants defendants were u/s 78 not "bound to pay rent to" plaintiff-appellant for 1329. The mere fact that plaintiff brought a suit against the defendants within the period of limitation for rent which they were not bound to pay to him, could not possibly give plaintiff title to the money from the date of suit, or if there was title thereto, preserve it beyond the date of limitation, or restore it after it had been completely lost at the end of the period of limitation.

Finally I consider that even if the appellant could at all secure a decree for rent in this litigation there is no case whatever for damages. That would have been so even if appellant had informed the respondents of the fact and date of registration nine months after the second appeal was filed. Much more it is so when it appears that the respondents only learnt at the hearing of the second appeal that registration had taken place while the second appeal was pending. To allow damages would be not only unjust but would defeat Section 78.

I would, therefore, dismiss this appeal with costs throughout.

Had I been able to hold that the rent of 1330 is recoverable by reason of registration at the lag-end of the period of limitation for a suit for the rent of that year and in spite of the finding of fact of the lower appellate Court in this regard, I would allow the appellant only a decree for the rent and cesses found by the Munsif to be due, and no damages; while as to costs I would direct that the plaintiff pay his own costs throughout and the defendants receive their costs in both the lower Courts and half their costs in this Court and I would allow future interest at 6 per cent per annum.

ORDER

As there has been a difference of opinion these appeals will be laid before the Hon''ble the Chief Justice for reference to one or more or the other Judges under Clause 28, Letters Patent of the Patna High Court, as amended, on the following points:

Can a mortgagee whose suit for rent has been rightly dismissed in appeal u/s 78, Land Registration Act, 1876, at all secure a decree for the rent sued for from the Court of second appeal if ho has during the pendency of the second appeal been registered under that Act?

If so, can he do so in the circumstances of the present case, (a) in regard to 1329, the rent of which was barred by limitation at the date when his name was actually registered under the Act; (b) in regard to 1329 and to 1330 when in the circumstances of the case the point could not arise u/s 100(1), Civil P.C., at the time when the second appeal was admitted?

Should damages be allowed in the circumstances?

JUDGMENT

Mullick, J.

This reference arises out of a suit for rent for the years 1329 and 1330 F.S.

The Munsif decreed the suit though not for the full amount claimed.

In appeal the District Judge dismissed the suit on the ground that the plaintiffs were mortgagees who should have registered their names in the registers of the Collector u/s 44, Land Registration Act (Act 7 B.C. 1876) and that having failed to do so they were not entitled by reason of Section 78 of the Act to a decree for rent.

A second appeal against the learned District Judge''s decision has been heard by a Division Bench of two Judges who having differed have under Clause 28, Letters Patent of this Court referred the case for a decision upon the following points:

Can a mortgagee whose suit for rent has been rightly dismissed in appeal u/s 78, Land Registration Act, 1876, at all secure a decree for the rent sued for from the Court of second appeal if he has during the pendency of the second appeal been registered under that Act?

If so, can he do so in the circumstances of the present case? (a) in regard to 1329, the rent of which was barred by limitation at the date when his name was actually registered under the Act; (b) in regard to 1329 and 1330 when, in the circumstances of the case, the point could not arise u/s 100(1), Civil P.C., at the time when the second appeal was admitted.

Should damages be allowed in the circumstances.

The material facts of the case are as follows:

The plaintiffs brought the suits on the footing that they were thikadars and the Munsif held that as the plaintiffs were merely lessees registration of their names under the Land Registration Act was not necessary.

The District Judge, however, took a different view and by his judgment dated the 24th June 1925, he held that the zerpeshgi lease in this case was a mortgage and not a lease and that registration was necessary before a suit for rent could be brought.

The second appeal to the High Court was preferred on 25th October 1926 and subsequently on 26th August 1926 the plaintiffs got their names registered on the books of the Collector. The arrears claimed were for 1329 and 1330 F.S. (corresponding to 1922 and 1923) and the suits were lodged in the Court of the Munsif on 6th October 1923. At the time of registration a suit for the arrears of 1329 would have been barred by limitation.

It is contended by the plaintiffs that provided their suit was within time they were entitled to a decree subject to the condition that it could not be executed till they had complied with the provisions of the Land Registration Act.

Now, it may be considered as the settled practice of the High Court at Calcutta that an unregistered proprietor is entitled to bring a suit for recovery of rent. In other words, he has a cause of action. The Full Bench decision in Alimuddin Khan v. Hira Lal Sen [1895] 23 Cal. 87 is conclusive on the point and has been followed in many cases not only for territories subject to the operation of the Bengal Tenancy Act, but, also for territories outside the operation of that Act. These cases have been noticed in the judgment of Kulwant Sahay, J., one of the two Judges who have made the present reference.

On principle it is difficult to see why the plaintiffs cannot bring a suit for the arrears in question. The plaintiffs have acquired by transfer all the rights of the registered proprietor, the mortgagor, and they are surely entitled to the right of realizing the debt due by the tenant for rent as an ordinary incident of the ownership of the land, unless the language of Section 78 deprives them of such right. Unless the words used by the legislature expressly or even by implication deprive the transferee of his title, I do not think that we can hold that he has no cause of action. The words of the section are as follows:

No person shall be bound to pay rent to any person claiming such rent as proprietor, or manager, of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under this Act.

In my opinion the section is not inconsistent with the view that the suit may be brought; but that the Court shall not order the recovery of the rent by execution till registration is effected.

Section 60, Ben. Ton Act, enacts that the registered proprietor, although he has transferred his proprietary right, shall nevertheless be entitled to recover the rent. Without this special provision a person who has parted with his proprietary title in the property would of course have no right to sue and the legislature has considered it necessary for the protection of the tenant to give the transferee a right which belongs only to the owner of the property. And to carry out the general scheme of the Laud Registration Act, Section 60 further enacts that the tenant shall not be able to plead in defence to a claim by a person registered that the rent is due to any third person.

Section 81, Land Registration Act, however, clearly shows that the rent really belongs to the transferee and that he is entitled to sue the registered proprietor for repayment of the sum realized by him.

I therefore see nothing in the language of Section 78 which bars the institution of a suit by the unregistered proprietor.

Also a reference to other enactments shows that where the legislature intends to bar the right of suit altogether it expressly says so.

Thus in Section 4, Succession Certificate Act (Act 7 of 1889), it is enacted that no Court shall pass a decree against the debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased or to any part thereof, or, proceed upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of a probate or letters-of-administration or a certificate. It is now settled that a certificate may be produced at any time after the filing of the suit or application.

In Section 56, Cess Act (Act 9 B.C. 1880) it is enacted that a proprietor whose rent-free land has been assessed by the Collector for road cess cannot recover from the tenure-holder his proportionate share of the cess without first serving certain notices required by Section 52. Section 56 expressly provides that after publication of extract from the roll as provided in Section 52 and not otherwise every owner and holder of any rent-free land shall be bound to pay the amount of road cess due. The liability does not arise till the publication of the roll, and the right to sue the under-tenure-holder does not therefore also arise till then.

Again Section 3, Encumbered Estates Act (Act 6 of 1876), is framed in language which seems to suggest that the intention of the legislature was not only to bar the recovery of the debt, but the institution of the suit in the events contemplated by that section. The section runs an follows:

On the publication of an order u/s 2, the following consequences shall ensue:

First, all proceedings which may then be pending in any civil Court in British India or in any revenue Court in Bengal in respect to such debt or liabilities, shall be barred; and all processes, executions and attachments for or in respect of such debts and liabilities shall become null and void.

It is clear, therefore, that in the present case there being no express provision barring the suit the Court cannot refuse to entertain it.

Apart from this it is the rule of our Court that where there is a long cursus curiae established in the High Court of Calcutta this Court will not depart from that course unless strong reasons exist to the contrary. The decisions of the Court in Balak Mahton v. Mathura Ram Dubey [1919] 52 I.C. 267 and Narain Prasad v. Gaju Mahton [1917] 2 P. L.J. 701 have given effect to this rule.

It is, however, argued that though the law may permit the unregistered proprietor to bring a suit, he can only get a decree if he registers his name before the judgment of the trial Court and that he cannot be allowed to obtain a decree if he registers his name while the case is pending either in first appeal or second appeal.

The reply to this contention is that it is not based on any principle. If the Court can take notice of registration during the suit, why can it not take notice of that fact at the stage of first or second appeal. The truth is that as he has a cause of action the unregistered proprietor is always entitled to a decree for the recovery of the debt subject to the condition that he registers his name before the Court issues execution. There is nothing improper in such a decree, and one may cite by way of analogy Section 10, Court-fees Act, which provides that when Court-fees have been under-estimated the suit shall be stayed for the payment of the full fee within a time fixed by the Court; and Section 11 which provides that in suits for mesne profits the decree shall not, be executed till the deficit Court-fee has been paid.

It may be urged that in second appeal the matter is different as the Court can only interfere if there is an error of law, and that if the Court of first appeal dismisses the suit for failure to comply with the provisions of Section 44, Land Registration Act, it commits no error of law which can be corrected in second appeal and that if the transferee subsequently registers his name the Court of second appeal cannot take notice of such registration.

The reply to this argument is twofold. In the first place, it is admitted here that registration has taken place, and the question of taking judicial notice of facts, which have subsequently occurred, does not arise: in the second place, failure to give the plaintiffs the decree to which they are entitled is an error of law. The Court of second appeal has the right to decree the claim subject to the condition that registration is made before the time for execution expires or, as here, the registration being admitted, to decree the claim without any condition.

Finally it is urged that in any event the arrear for 1329 cannot be recovered because, on 26th August 1926, when the plaintiffs registered their names the suit for the recovery of the arrear was barred by limitation.

To this argument also it is a complete answer to say that if the plaintiffs are entitled to a conditional decree then the question of limitation does not arise. The suit was instituted in time and the conditional decree permits the plaintiffs to register their names any time before they put the decree into execution. It may be that such an interpretation of the law will encourage proprietors or mortgagees or managers to disregard one of the objects which the Land Registration Act has in view. That may be so; but if the law desires to compel every transferee to register his name on pain of losing his right of suit the language of the Act must be rendered more precise

I, would, therefore, answer the first question in the affirmative. I would also answer both heads of the second question in the affirmative.

With regard to the third question, namely, whether damages should be allowed, this is not a point which can ordinarily arise in second appeal. The question whether there was reasonable cause for the defendants not to pay the arrear is one of fact which ought to have been disposed of by the Court of first appeal; but u/s 103, Civil P.C. the Court of second appeal may decide the question upon the evidence on the record, and if there is a difference of opinion between the Judges of the Division Bench on this question of fact the point can, I presume, be referred under Clause 28, Letters Patent. In my opinion the evidence on the record does not justify the claim for damages. Seeing that the plaintiffs were not the registered proprietors the tenants had reasonable cause in withholding the rent for which at any moment they might have been sued by the registered proprietors. I would, therefore, answer the third question in the negative.

As for interest, both the referring Judges have declined to allow it and there is no reference to me on that point.

The result is that the plaintiffs will lose both the interest and damages.