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Qayum Bux Vs. L. Radhey Shiam - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1944All291
AppellantQayum Bux
RespondentL. Radhey Shiam
Excerpt:
- .....difference in section 219 of the old and new act. by the former section the thekadar could claim remissions if there was no contract to the contrary in the theka, whereas by the latter statute this condition has been removed and the thekadar is entitled unconditionally to remissions.4. the main controversy in the case is whether the rights and liabilities of the thekadar for the theka money of 1344f. are to be governed by the terms of the theka and by the agra tenancy act (3 of 1926), or by the terms of the u.p. tenancy act of 1989. apart from section 296, u.p. tenancy act of 1939, which contains a transitional provision applicable to pending suits and which we shall presently consider, there can be no doubt that section 219, u.p. tenancy act of 1939, on its own terms cannot be.....
Judgment:

Dar, J.

1. This is an appeal against a judgment and decree, dated 2lst March 1942, of the Civil Judge of Budaun by which he varied a judgment and decree, dated 21st March 1940, of the Assistant Collector, first class, of Budaun in a suit for recovery of arrears of theka money. On 15th August 1932, defendant 2, Ram Sahai, who was the usufructuary mortgagee of 86 bighas and 14 biswas of Mauza Narao Khurd, Mahal Asmani, Patti Molvi Wahid Bux, executed a patta of the said property in favour of defendant 1, K.B. Maulvi Wahid Bux. The rent reserved under the theka was a fixed sum of Rs. 430 which was payable every year by the thekadar irrespective of any 'calamity, suspension or remission of rent.' On 1st May 1939, the lessor made an assignment of the theka money which was due for 1344F. to the plaintiff Radhey Shyam, and after taking assignment on 26th May 1939, he raised an action in the Court of the Assistant Collector, first class, of Budaun for recovery of a sum of Ks. 454 as the theka money together with a sum of Rs. 118-1-0 for interest due upon it. The trial Court decreed the claim for a sum of Rs. 286 with costs and interest. This figure was arrived at after deduction of a sum of Rs. 168 from the claim and the sum of Rs. 168 was deducted partly on account of the remission granted by the Government and partly on account of the inability of the thekadar to collect his dues from tenants. On an appeal made by the assignee the Civil Judge of Budaun came to the conclusion that under the terms of the thekanama the thekadar was not entitled to claim any deduction for remission and non-realization of dues and that this matter was res judicata between the parties, and in the result he decreed the claim in full. We have now a second appeal by the thekadar.

2. It is not disputed that under the terms of the thekanama the thekadar cannot claim any deduction on account of any remission of rent or on account of non-realization of rent from tenants, whatever be the cause for the same, and that in previous suits between the parties the terms of the theka have thus been interpreted. But the thekadar contends that notwithstanding the terms of the thekanama jand previous decisions the thekadar under Section 219, U.P. Tenancy Act (17 of 1939), is entitled to remissions which were made in the iyear 1344F., and the main question for our consideration in this appeal is whether this contention is legally correct. At the time when the theka money became due and was assigned and at the time when the action was raised the Agra Tenancy Act (3 of 1926) was in force. The action was raised under Section 132 read with Section 220, Agra Tenancy Act. Remissions claimed by the thekadar were governed by Sections 73 and 74 read with Section 229 of the Act and it is not disputed that there being a contract to the contrary in the theka, the remissions could not be claimed by the thekadar under the Agra Tenancy Act (3 of 1926). During the pendency of the suit and before its decision the U.P. Tenancy Act (17 of 1939) came in force. Section 296, U.P. Tenancy Act, 1939, provides for the disposal of pending suits in these terms:

A suit under any of the provisions of the Agra Tenancy Act, 1926...which is pending at the commencement of this Act...shall be decided in accordance with the corresponding provision of this Act and if there is no such corresponding provision, the proceedings relating to such suit shall be quashed.

3. In the U.P. Tenancy Act, 1939, corresponding provisions exist to all the sections referred to above by us of the Agra Tenancy Act of 1926. The action which was raised under Section 132 read with Section 220 of Act 3 of 1926 has now to be disposed of under Section 148 read with Section 222, U.P. Tenancy Act, 1939, and there is no material difference in these provisions of two statutes. Sections 73, 74 and 219 of Act 3 of 1926, which deal with remissions generally and remissions to thekadars find corresponding provisions in the U.P. Tenancy Act of 1939, in Sections 123, 124 and 219. But there is a material difference in Section 219 of the old and new Act. By the former section the thekadar could claim remissions if there was no contract to the contrary in the theka, whereas by the latter statute this condition has been removed and the thekadar is entitled unconditionally to remissions.

4. The main controversy in the case is whether the rights and liabilities of the thekadar for the theka money of 1344F. are to be governed by the terms of the theka and by the Agra Tenancy Act (3 of 1926), or by the terms of the U.P. Tenancy Act of 1989. Apart from Section 296, U.P. Tenancy Act of 1939, which contains a transitional provision applicable to pending suits and which we shall presently consider, there can be no doubt that Section 219, U.P. Tenancy Act of 1939, on its own terms cannot be read retrospectively and cannot be called in aid to determine the rights and liabilities which arose before Act 17 of 1939, came into force. There is high authority of Lindley L.J. in Lauri v. Renad (1892) 3 Ch. 402, for the observation that

it is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.

And this proposition has received general assent both in England and in India and has been further stressed in Maxwell's Interpretation of Statutes and in Craies on Statute Law at pages 186 and 329, respectively. If, therefore, a suit were to be instituted to recover theka money under the provisions of the U.P. Tenancy Act of 1939 which had fallen due before the Act of 1939 had come into force, there cannot be much room for contention that Section 219, U.P. Tenancy Act of 1939, should not be interpreted retrospectively and the thekadar should be given benefit of remissions which he was not entitled to at the time when the theka money became due. Is there any reason to hold that with regard to suits which were pending when the U.P. Tenancy Act of 1939, came into force the law is any different or should be different? It is contended that under Section 296, U.P. Tenancy Act of 1939, a pending suit is to be decided under the corresponding provisions and it implies that not only the suit is to be disposed of under the corresponding provisions, but all the rights and liabilities which are also the subject-matter of the suit should also be disposed of under the corresponding provisions and thus interpreted the section authorizes a retrospective effect to the statute. In our opinion Section 296 should not be so interpreted so as to give a retrospective effect to its provisions and the material words in the section

a suit under any of the provisions of the Agra Tenancy Act, 1926, shall be decided in accordance with the corresponding provision o this Act,

mean that the only provisions of the old Act which are affected by this section are those under which a suit is filed and not others, unless there is something in those other provisions to show that a retrospective effect should be given to them. As to whether retrospective effect is to be given to a particular provision will depend upon its terms and upon the circumstances of each case. But we are clear that there is nothing in Section 219, U.P. Tenancy Act, 1939, which suggests that retrospective effect should be given to it.

5. For the reasons given above we are of opinion that the view taken by the lower appellate Court is correct and the deductions claimed by the thekadar were rightly disallowed. But in view of the finding of the Assistant Collector about the remissions and the circumstances in which rent was not collected and the benefit which has accrued to the lessor on account of remission of Government revenue and the loss which has accrued to the thekadar, we consider that the plaintiff's claim should be decreed only for the principal sum and interest should not be allowed. In the result we allow this appeal in part and modify the decree of the lower appellate Court to this extent that the plaintiff's claim is decreed for the principal sum only without interest and for proportionate costs in all the Courts.


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