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Keshab Chandra Choudhary Vs. Lokenath Jena and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 130 of 1944
Judge
Reported inAIR1951Ori186
ActsTenancy Law; Orissa Tenancy Act, 1913 - Sections 31, 31(2), 31(5), 31(6), 31A, 31A(1), 31A(2), 31B, 83 and 197; Orissa Tenancy (Amendment) Act, 1938
AppellantKeshab Chandra Choudhary
RespondentLokenath Jena and ors.
Appellant AdvocateS.N. Sen Gupta, ;L.K. Das Gupta and ;S.K. Ray, Advs.
Respondent AdvocateR.N. Singh, Adv.
DispositionAppeal allowed
Cases ReferredUdayanath Mohapatra v. Rahas Pandiani
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....panigrahi, j.1. the point raised in this appeal relates to the correct interpretation of schedule 1 (5), oriasa tenancy act (bihar and oriasa act ii [2] of 1913, as amended by orissa act viii [8] of 1938).2. the plaintiff purchased .60 1/2 of an acre of land out of a holding measuring 1.45 acres, in execution of a mortgage decree against defendant 2 who was the occupancy raiyat of the holding no, 189 in touzi no. 2484 belonging to defendants 3, 4 and 5 who are co-sharer landlords, in village tiran. the plaintiff purchased four complete plots and an undivided half share in plot no. 580 on 15-5-40 defendants 3 and 4 filed a rent suit against defendant 2 and put up the holding to sale in execution of the decree obtained in that rent suit. defendant 1 purchased it at court auction on l5-5-41......
Judgment:

Panigrahi, J.

1. The point raised in this appeal relates to the correct interpretation of Schedule 1 (5), Oriasa Tenancy Act (Bihar and Oriasa Act II [2] of 1913, as amended by Orissa Act VIII [8] of 1938).

2. The plaintiff purchased .60 1/2 of an acre of land out of a holding measuring 1.45 acres, in execution of a mortgage decree against defendant 2 who was the occupancy raiyat of the holding no, 189 in Touzi no. 2484 belonging to defendants 3, 4 and 5 who are co-sharer landlords, in village Tiran. The plaintiff purchased four complete plots and an undivided half share in plot no. 580 on 15-5-40 Defendants 3 and 4 filed a rent suit against defendant 2 and put up the holding to sale in execution of the decree obtained in that rent suit. Defendant 1 purchased it at court auction on l5-5-41. The plaintiff thereafter on 17-9-41, filed the suit, out of which this appeal arises, praying for a declaration of his right and confirmation of possession and, in the alternative, for delivery of possession after ejecting defendant 1.

3. The plaintiff-appellant's case is that on the confirmation of the sale by the Civil Court he acquired an absolute right to the land, and any rent decree passed behind his back thereafter would not affect his title to the holding. The landlord-defendants 3, 4 and 5 remained ex parte and the suit was contested by defendant 1 alone. The contention of defendant l is that the sale in favour of the plaintiff on 15-5-40, in execution of his mortgage decree against defendant 2, may be ever so good, but would not be operative against the landlords until they receive notice of that sale, and that as they had not received any such notice of sale, contemplated in Section 31(5) of the Act they were not bound to implead the plaintiff as a party-defendant in the rent suit and that, accordingly, the title acquired by defendant l by reason of his purchase at the rent sale would prevail over that of the plaintiff.

4. In 1938, the Orissa Legislature by Orissa, Act VIII [8] of 1938, introduced some radical changes in the status of tenants of occupancy holdings by enacting Sections 30-A, 31, 31-A and 31-B. Prior to the introduction of these sections, an occupancy holding was not transferable except with the consent of the landlord, this consent being purchased by the pament of what is known as the mutation fee. The object of the Legislature was to remove this fetter on the right of the occupancy raiyat to transfer his holding, and, by Section 30-A, it expressly declared such holdings, on portions thereof, to be transferable by Bale, exchange, gift or bequest, without the landlord's consent, and without the payment of any fee to him; and it was also declared that such transfer would carry with it occupancy right in the holding as well as all other rights appertaining thereto. Section 31 is a machinery section and is entitled : 'Manner of transfer and notice to the landlord' Sub-section (1) of Schedule 1 enacts that every voluntary transfer of an occupancy holding, or a portion thereof, shall be made by a registered instrument. Sub-section (2) of the section says that a registering officer shall not accept for registration any such instrument unless it is accompanied by a notice signed by the transferor and the transferee, giving particulars of the transfer and the fee prescribed for the service of such notice on the landlord. Sub. section (3) says that after the instrument is registered the registering officer shall transmit the notice to the Collector who shall cause it to be served upon the landlord, named in the notice, in the prescribed manner. Sub-section (4) similarly lays down the procedure to be adopted in the case of transfer of a holding by bequest and says that the Court shall, before granting a probate or letters of administration, require an applicant to file a notice giving particulars of the transfer, accompanied by the prescribed fee for the service of the notice on the landlord. When probate is granted, the Court shall transmit the notice to the Collector who shall cause it to be served on the landlord in the prescribed manner. Next cornea Sub-section (5) which is in the following terms :

'When the holding of an occupancy raiyat or a portion or share thereof is sold in execution of a decree or of a certificate signed under the Bihar and Orisaa Public Demands Recovery Act, 1914, other than a decree or certificate for arrears of rent due in respect of the holding or dues recoverable as such, and neither the purchaser nor the decree-holder is the sole landlord, the Court or the Revenue Officer, as the case may be, shall, before confirming the sale, require the purchaser to file a notice giving particulars of the transfer in the prescribed form, and to deposit a fee of the prescribed amount for the service of it. When the sale has been confirmed, the Court or the Revenue Officer shall transmit the notice to the Collector who shall cause it to be served on the landlord in the prescribed manner,'

In the case of an execution sale, the purchaser is required to file a notice giving particulars of the transfer in the prescribed form and to deposit the requisite fee for the service of such notice on the landlord. The actual service on the landlord is left to the Collector. The confirmation of the sale, however, does not await the service of notice on the landlord by the Collector. All that Sub-section (5) requires is that the purchaser is to file the notice and deposit the fee required for the service of it. As soon as these requirements are fulfilled, confirmation of sale should follow, as a matter of course, and the transfer of title to the purchaser becomes absolute. If the transfer relates to a portion or share of the occupancy holding, and the portion transferred is not divided by metes and bounds, Schedule 1 A (l) lays down that the transferee and the persona possessing interest in the remainder of the holding shall be considered as joint tenants by the landlord. The object of this provision is to enable the landlord to collect his rent from the entire holding by treating the transferee as a joint tenant with the transferor who still possesses an interest in the remainder of the holding. If the portion transferred is divided by metes and bounds, Section 31-A (2) lays down that the landlord shall be deemed to agree to the division as also to the distribution of the rent made by the parties unless, within six months of the date of service of notice, ha applies to the Collector for a just and equitable apportionment of the rant so distributed. Those two sections, viz,, Schedule 1 and s 31-A, apply to transfers made after the passing of the amending Act (Act VIII [8] of 1938). In respect of past transfers the Legislature made a provision in Section 31-B enacting that the transferee shall be liable to pay mutation fee within the time limit fixed by the section, and that such transferee shall not be liable to be ejected on the ground that the landlord had not given his consent to the transfer. In order that the bolding may not be put to sale in execution of a decree for arrears of rent, Sub-section (2) of Section 31B provides that the transferee is to give notice of his transfer by registered post to the landlord and thereupon the landlord shall be bound to implead him as a party in the execution proceeding. Lest this provision should appear to be is conflict with the other provisions of the Act and the Civil Procedure Code, the Legislature provided, by way of explanation, that the transferee may be brought on the record in the execution proceedings either in substitution of, or in addition to, the judgment debtor, and such transferee shall, when so substituted or added, be treated as a judgment-debtor. The scheme of the amending Act is that, in the first place, it declares occupancy holdings to be transferable; it then provided how the transfer is to be effected in different cases; thereafter it preserves the right of the landlord to object to unfair apportionment of rant if there be any such unfair apportionment, incases of transfers of a portion or portions of holdings divided by mates and bounds; and lastly it makes provision to the effect that all past transfers could be validated by giving notice to the landlord, and ensures that the holding would not be exposed to sale without the transferee being made a party to the execution proceedings. The need for the landlord's consent to the transfer is expressly done away with and the provision for giving notice to the landlord through the Collector is not to be regarded as equivalent to taking the consent, as such, of the landlord for such transfer. The transfer can by no means be regarded as being dependent on the notice, which is to follow in due course after the completion of the transfer. The section does not expressly stipulate that the transfer of the holding will depend upon the consent or knowledge, or notice to the landlord; nor does it follow, by necessary implication, that it should be so. Having regard to the scheme and object of the amending Act, viz., that it was designed to remove a long standing grievance of the tenantry, the provisions should be so construed as to advance the remedy provided by the Legislature and suppress the mischief which was intended to be removed. We cannot get away from the remedial operation of the statute while complying with the language of the statute.

5. Let me now examine the facts and the contentions advanced on either side. The proved facts are that plaintiff filed into Court the requisite notices and the process fee, as is evidenced by Ex. 7 (certified copy of the Order of the Court). Whether the Court actually transmitted the notices to the Collector and whether the Collector, on his part, served the notice on any of the landlords, has not been satisfactorily established one way or the other. The learned Subordinate Judge who was directed to record additional evidence and submit a finding on this point held that there was no material for concluding that the landlords, viz., defendants 3 and 4 had actually received any notice of transfer, either through the machinery provided in Section 31 of the Act or otherwise. It was proved, however, that defendant 5, one of the co-sharer-landlords, did receive the notice of transfer on 18-11-41. The agent of defendants was examined and he produced Ex. 8, a copy of the notice under Section 31 (5) as having been served upon him. Bat his evidence that it was also served on the agents of defendants 3 and 4 on the day was not accepted. Neither defendant 3 nor defendant 4 nor their agent went into the box, to contradict it. The position thus would appear to be that two out of the three landlords have not been served with the notices by the Collector and it is, therefore, contended by Mr. Sinha, appearing for defendant l, that the sale in favour of the plaintiff must be inoperative inasmuch as the co-sharer landlords, defendants 3 and 4, were not bound to implead the transferee in their cent suit. The' competition is between two purchasers of an occupancy holding which was at one time non-transferable. The issue about non-transferability is raised not by the landlord but by one who has purchased the ryoti interest after the transfer in favour of the plaintiff. In such cases it has been held that it is not open to the subsequent transferee to question the validity of the first transfer (See Ayenuddin v. Srish Ghandra, 11C W N 76). In oases between rival claimants, neither of whom is the landlord or tenant, the question of transferability does not' arise; and the one would have the best title if the holding were transferable is entitled to succeed-[Samiruddin v. Benga, 13 C W N 630 : (I. I. C. 114) and Tulsi v. Dayal, 15 I. C. 718 (Cal.).] None the less the respondent has been allowed to raise the point and his learned counsel was heard at length as if the subsequent purchaser were the representative-in-interest of the landlords.

6. Mr. Singha's argument proceeds on the assumption that either notice or knowledge of transfer is an essential requisite for validating the transfer and that the landlord-who is expressly precluded by Schedule 0-A from withholding his consent to a transfer-must nevertheless receive the notice of such transfer before the transfer becomes operative. In other words, according to this contention the law as contained in the Amending Act VIII [8] of 1938 has brought about no such radical change as to make an occupancy holding absolutely transferable, regardless of the interest of the landlord, and that the notice contemplated under Section 31 must be taken to have been substituted for impliedly obtaining the consent of the landlord. This contention, if I may say so with respect, completely ignores the antecedent history of the legislation, the object of the legislation, and the language employed by the Legislature in carrying out that object. Prior to 1938, the purchaser of a holding was required to apply to the landlord for registration of his transfer and no such transfer would be valid until the landlord consented to it. He could not deposite his rent until such registration (see Schedule 0 (3) ). The raiyat could not sub let or mortgage except with the landlord's consent-(see Sections 95 and 96). All these disabilities have been removed by the Amending Act of 1938. Section 30-A of the Amending Act is affirmative, explicit and peremptory when it says that a holding shall be transferable without the landlord's consent; and registration in his books is done away with. I am not inclined to restrict the operation of this section by introducing words which are not to be found there. Section 30-A does not say that the holding shall be transferable without the landlord's consent but that the transfer shall be operative only after notice has been served upon him. There is no such restrictive clause either in that section or in any of the succeeding sections. The duty of serving the notice is cast upon the Collector-a stranger to the transaction between the parties. The provision for notice, therefore, is in my opinion intended only to keep the landlord informed of all transfers taking place within his estate so that his lack of knowledge of such transfers may not lead to unnecessary litigation. It is a provision primarily for the benefit of the landlord and should not be construed as restricting the right of the tenant to transfer his holding It represents a delicate balancing of two conflicting interests: on the one hand the right of the tenant to transfer is unrestricted and on the other the hardship that may result if the landlord is kept ignorant of it is sought to be removed.

7. It was then argued that since the transferee and the transferor are made jointly and severally liable for past rent under Schedule 3, the transferee does not acquire a perfect title until he is registered in the books of the landlord. Section 83, as it stood before 1938, applied to transfers in permanently settled areas where transfers could be effected without the landlord's consent-See old Section 31 (5). The transferee was declared liable for arrears of rent after the transfer along with the transferor. The Amending Act of 1938 has removed this distinction and placed transferees in permanently settled as well as in temporarily settled areas on the same footing. Furthermore the amendment makes him liable for arrears of rent even prior to the date of transfer. The landlord cannot, therefore, ignore the transfer having regard to the fact that under Section 83 the transferee is jointly and severally liable to the landlord for payment of arrears of rent accrued due prior to the date of transfer. Since Schedule 3 imposes a liability on the transferee for arrears of rent, any construction which would relieve him of that liability on the ground that the landlord had no notice of the transfer and thus impose the entice liability on the person remaining with the transferor would be unsound. If the transferee is liable to the landlord for arrears of rent, it stands to reason that the landlord is bound to implead the transferee in his suit for realising the arrears if the holding is sought to be proceeded against. Section 83, therefore, far from lending support to Mr. Singha's contention, emphasises the absolute character of the transfer of an occupancy holding by a raiyat by declaring the transferee jointly and severally liable to the landlord for arrears of rent accruing due prior to the date of transfer. The interest of the landlord is thus effectively safeguarded-notice or no notice.

8. It was next contended that Schedule 1-A pro. vides a clue as to the manner in which Schedule 1 is to be read. As I read Schedule 1-A it only emphasised the absolute right of transfer that was conferred on the raiyat when it lays down that if the transfer is of an undefined portion the transferee shall be considered as a joint tenant by the landlord. Here, again, the language is mandatory and leaves so option for the landlord to ignore the transfer. In the case of transfer of a defined portion, on the other hand, the only option left to the landlord is to object to the distribution of rent which is inextricably bound up with the division of the holding. This section is a corollary to Schedule 1 (2) and had to be inserted. Under the old Schedule 1, the landlord had the right to object to a transfer on the ground that it would result in the creation of unreason; ably small holdings. The new Section 31 (2) requires that the deed of transfer should state the rent of each holding or a portion or share transferred and thus recognises the right of the raiyat to divide his holding and distribute the rent. Section 31-A makes it obligatory of the landlord to recognise this division. The transferee of an undefined portion 'shall be considered as a joint tenant by the landlord' under Schedule 1-A (l) and where the transfer is of a defined portion 'the landlord shall be deemed to agree' to the division and distribution as set forth in the notice referred to in Schedule 1 unless he applies to the Collector for a fair and equitable distribution of rent within six months. The effect of this section is that the security of the holding for the rent due to the landlord is kept unimpaired. It says no more than that and cannot be regarded as by any means whittling down the operation of Schedule 1. It is noteworthy that when the transfer relates to an entire holding there is no provision entitling the landlord to object on any ground; such a case would be clearly covered by Schedule 3. It was suggested that Section 83 would be redundant in view of the provision in Schedule 1-A (l) of the Act, but I am unable to see any such redundancy or inconsistency between the two sections. Section 31-A(1) recognises the status of a transferee of an undefined portion of the holding as a joint tenant with the transferor for the unsold portion as well, while Section 83 makes him jointly and severally liable for arrears of past rent on the entire holding. In the case of transfer of a defined portion of a holding, on the other hand, the transferee becomes a tenant in his own right of that portion under Schedule 1-A(2) and not a joint tenant as under Schedule 1-A (1); while his liability for arrears of rent due on the entire holding before the transfer is declared by Schedule 3. There was no need to declare his status as a joint tenant in the case of transfer of a defined portion, as indeed it would be inconsistent with the transfer, and therefore Schedule 1-A (2) merely gives the landlord the right to object to the distribution of rent and not to the transfer. A reference to Schedule 9 which deals with sub-division of tenures would show that sub-divisions effected by transfers are expressly saved. A division of tenure of holding except as provided in Sections 31 and 31-A is not binding upon the landlord unless it is made with his express consent under old Schedule 9, which has since been amended in 1947 (Act XV [15] of 1947).

9. This also appears to emphasise the position that a tenant; can, by transfer of his holding, effect a sub-division of the same between himself and the transferee without reference to the landlord and subject to the distribution of rent. Mr. Sinha's contention is that if the transfer were to be regarded as complete on registration, why does Schedule 1-A (l) declare that the transferee shall be regarded as a joint tenant by the landlord? The reason is obvious. Under the old Ss-31 and 31-A, the transferee was obliged to apply to the landlord for recognition of his transfer and the transfer of the holding could be validated only after registration of the transfer in the landlord's books on payment of the omutation fee. Excepting in the cases specifically provided in old Sections 31 and 31-A, all other cases of sub-division of a tenancy were prohibited without the landlord's consent in writing as laid down in Schedule 9. When these two sections were replaced by the new Sections 31 and 31-A in 1938 and the landlord's consent was dispensed with, it was necessary to declare that the transfer of a holding or a portion thereof would be binding upon the landlord even when made without his consent, and the status of the transferee would be that of a joint tenant along with the transferor. The present position, therefore, is that while a division of tenure can be effected by sale, exchange, gift, or baquest, subject only to the right of the landlord to object to the distribution of rent any other form of division would foe governed by the provisions of Schedule 9.

10. Reliance was placed on Schedule 97 of the Act for the contention that the landlord is bound to look to the Record of Rights for realisation of his rent, and that tenant alone whose name is recorded in the Record of Rights shall be liable to pay the rent due to him. A reference to this section shows that all that it lays down is that a revenue Court shall have due regard to the entries made in the Record of Rights. There is nothing in the language of the section to suggest that the landlord could ignore all transfers made subsequent to the publication of the Record of Rights. If he does not bring the transferee on his rent roll, he shall do so at his own risk.

11. Mr. L. K. Das Gupta, learned counsel appearing for the plaintiff-appellant advanced the following propositions : (1) that the transfer of a holding is complete, the moment registration of such transfer is made by the registering officer, or the moment a sale certificate is granted by the Court; (2) that the transferor of an occupancy holding ceases to be liable to the landlord for payment of rent once he transfers his interest in the holding to another patty; (3) that in order that the holding may pass to the auction purchaser at a court sale there should be the relationship of landlord and tenant subsisting on the date of the rent sale. If the matter were res integra, I should have had no difficulty in holding, on a mere interpretation of the relevant sections, that these contentions are well-founded. But every one of these propositions has been well established by a long course of decisions of the Calcutta High Court which have been approved by the Judicial Committee of the Privy Council.

12. The language employed in S, 13, Bengal Tenancy Act, 1885 (VIII [8] of 1885) is identical with that used in Schedule 1, amended Orissa Tenancy Act Section 13 of the Bengal Act says that when a permanent tenure is sold in execution of a decree the Court shall, before confirming the sale, require the purchaser to pay into Court the landlord's fee required by Schedule 2 together with the prescribed cost of transmission thereof to the landlord and such further fee for service of the notice of sale on the landlord as may be prescribed; and that when the sale has been confirmed the Court shall send to the Collector the landlord's fee, the prescribed cost of transmission of the same, and a notice of the sale, and the Collector shall cause the fee to be transmitted to, and notice to be served upon, the landlord named in the notice and in the precribed-manner. A comparison of the above provisions in Schedule 3 of the Bengal Act with those contained in Schedule 1 (5) of the Orissa Act would clearly show that the object of the Legislature in both cases was to provide a machinery for the transfer of a permanent tenure in the former case and of an occupancy holding in the latter case. The agency employed for service of notice of transfer is the Collector in both the oases.

13. It has been held, uniformly, by the Calcutta High Court that the transfer of a tenure under the Bengal Act becomes complete on payment of the requisite fee to the landlord and the cost of transmission thereof. As early as 1889 it was held by Petheram C. J. in Kristo Bulluv v. Kristolal Singh, 16 Cal. 642 that a transfer becomes complete as soon as the document was registered and that the liability of the transferor to the landlord for payment of rent ceases when the estate is so transferred, and the Act does not say that his liability subsists until notice has been served upon the landlord. This case has been followed in a number of oases decided by that High Court. In Chintamoni Dutt v. Rashbehari, 19 Cal. 17 it was observed:

'Though it might seem a case involving hardship to the landlord that he has not received notice on account of some neglect on the part of the Registrar, or the Collector, his suit is still liable to be dismissed if brought against the wrong person.'

The argument that the landlord is entitled to look to his recorded tenant until he receives due notice of the transfer was negatived on the authority of Kristo Bulluv's case, 16 Cal. 642. In Mohash Ghunder Ghose v. Saroda Prasad, 21 Cal. 133, the argument put forward was that the recognition of the transferee of a share of the holding would conflict with Schedule 8, Bengal Tenancy Act, which corresponds to Section 99 of the Orissa Act-an argument that was repeated before us by Mr. Sinha. This argument was rejected on the ground that the transferee of a portion of a holding can always claim to be a joint tenant with the transferor and there was nothing inconsistent in Schedule 8 which would militate against that position of the transferee. It was held in that case that the degree obtained by the landlord and the rent sale in execution thereof without impleading the transferee, did not affect the rights of the transferee plaintiff, In Hemendra Nath v. Kumar Nath, 12 C. W. N. 478, neither the landlord's fee was paid nor notice of transfer served on the landlord. It was held that once the document was registered the fact that the landlord's fee was not paid did not render the transfer invalid. A transfer in favour of the purchaser must be deemed to have been completed upon payment of fee into the Court, irrespective of its acceptance by the landlord: See Girish Chandra v. Khagendranath, 13 C. L. J. 613 : (9 I. C. 1001). The unrecorded transferee of a transferable tenure is a tenant though his name is not on the books of the landlord: See Azgar Ali v. Asaboddin, 9 C. W. N. 134. Similar oases which recognised transfers, in spite of the fact that the landlord's fee had not been paid may be found reported in Fazal Ali v. Amir Baksh, 47 I. C. 834 : (A.I.R. (6) 1919 Cal. 1000) and Joy Gobind v. Monmotha Nath, 33 Cal. 580.

14. The exposition of the law in Kristo Bulluv's ease, 16 Cal. 642 and in Hemendra Nath v. Kumar Nath, 12 C. W. N. 478 was referred to, with approval, by the Judicial Committee in Surapati Roy v. Ramnarain, 50 I. A. 155 : (A. I. R. (10) 1923 P. C. 88). In Jitendranath Ghose v. Manmohan Ghose, 57 I. A. 214 at p. 281 : (A. I. R. (17) 1930 P. C. 193) the Judicial Committee had again occasion to consider the requirements of notice as prescribed in Sections 12 and 13, Bengal Tenancy Act, 1885. The arguments addressed before their Lordships In this case are reported in Jitendra Nath v. Manmohan, 34 C. W. N. 821 : (A. I. R. (17) 1930 P. C. 193). Lord Tomlin pointed out,, during the discussion, that before the Bengal Act of 1885 there was a statutory duty on the tenant to give notice to the zamindar but no such duty was imposed on the tenant or the transferee under the Act of 1885 and that it was for the Court or the Collector to give that notice. At p. 832 of the Report the same learned Lord made this observation :

'Once you have a valid transfer by a registered instrument, what has notice got to do with it ?'

Sir George Lowndes, who delivered the judgment of the Board, pointed out that before the Act of 1885 the duty was laid specifically upon the transferee to see that his name was recorded in the landlord's sherista, but after the coming into force of the Act of 1885, instead of the transferee being required to go to the landlord to get his name recorded, the landlord had to find out his tenant. The landlord could not ignore a transfer of the tenure and rely upon decrees obtained by him against persons whom, he chose, for his own purposes, still to regard them as his tenants, though he knows or must be taken to know-that their interest in the tenure has ceased. It was further observed that,, apart from the knowledge of the landlord, their Lordships had no hesitation in presuming, in the absence of evidence to the contrary, that the procedure laid down in 8s. 12 and 13 of the Act was duly followed and that proper statutory notice was given. It was accordingly held that the tenure being statutorily transferable, the original tenure-holders would no longer be liable for rent and that an effective decree could only be obtained against the transferee.

15. Nor can the failure to serve the notice have the effect of invalidating the sale of the tenure : See Barada v. Tarakanath Prasad, A.I.R. (13) 1926 Cal. 844 : (94 I. C. 147) and Amlika Charan v. Harkishoree, A. I. R. (14) 1927 Cal. 825 : (103 I. C. 707).

16. These oases were sought to be distinguished on. the ground that they related to transfer of tenures. But I can find nothing on principle to distinguish these oases from the present case. The language used by the Legislature being the same in both the cases the. interpretation given to that language by the Calcutta High Court should be adopted. The Bengal Tenancy Act of 1885 was amended in 1928 and the right of transfer was conferred upon occupancy tenants by Sections 26B and 260. Maharaj Bahadur Singh v. Nari Mollani, 63 Cal. 1117;(A. I. R. (23) 1936 Cal. 279) was a case which arose under Schedule 50, Bengal Tenancy Act of 1928. In that case the landlord's transfer fee did not reach the landlord before the decree in the rent suit was passed, and Mitter J. held that as soon as the document was registered title to the holding passed from the transferor to the transferee with retrospective effect from the date of execution of the conveyance. The question whether the landlord was served with the notice of transfer by the Collector was not material and it could not be said that the transfer would be complete as against the landlord only when he received the notice of transfer. In another case, relied on by the learned counsel for the respondent viz, Nagendranath v. Niranjan, A. I. R. (24) 1937 Cal. 655:(I.L.R. (1938) 1 Cal. 164) the immediate point for decision was whether the transferee was represented by the transferor in an execution proceeding and the decision of the question turned upon the correct interpretation of Schedule 46A, Bengal Tenancy Act .introduced in the year 1928. There is no corresponding provision in the Orissa Tenancy Act and I am unable to see how this case can support the respondent's argument.

17. My conclusion, therefore, on a review of all these decisions, is that the transfer of an occupancy holding must be deemed to be complete as soon as the requisite fee is paid and the notice contemplated in Schedule 1 is filed into Court. The section refers to the immediate act of parties to give validity to the transfer and does not extend to the acts or omissions of third parties. The provision that the Collector shall serve the notice is a direction to that officer, it is directory in nature as it is introduced after the transfer is completed (Craies on Statute Law, p. 238). A provision in a statute is often directory in the sense that it is not a condition precedent, but a condition subsequent, as to which responsible persons may be blamable and punishable if they do not observe it (see Halabury, vol. 27, p. 172). The failure of the Collector to serve the notice on the landlord cannot in any way affect the title of the transferee to hold lands purchased as a tenant. Once the transfer of title becomes complete it follows, as a consequence, that the transferee becomes liable to the landlord for rent chargeable on the holding and she holding cannot be put up for sale in execution of a rent decree behind his back. It may be that the transferor is also liable but as there is no privity of estate between him and the landlord in respect of the transferred portion and as the relationship -between the landlord and the transferor ceases to be that of a landlord and tenant from the date of sale the transferor's liability to pay rent also ceases. In such a case all that the auction purchaser acquires at the rent sale is only the right, title and interest of the judgment-debtor and not the holding itself : See A. H. Forbes v. Maharaj Bahadur Singh, 41 I. A. 91 ]: (A. I. R. (1) 1914 P. C. 111) and Krishnapada v. Mannada Sundari, 59 Cal. 1202 : (A. I. R. (19) 1932 Cal. 321 S. B.). It has been observed that

'any proceedings for rent after the completion of the transfer must be against the transferee and any decree for rent obtained against the transferor after the transfer cannot affect the interest of the transferee.'

See Prabhavati v. Lalji Mahto, 23 Pat. 356 : (A. I. R. (31) 1944 Pat, 252), following Kristo Bulluv v. Kristolal, 16 cal. 642. In Chandra Sekhar v. Jagannath, 24 Pat. 148 : (A.I. R. (32) 1945 Pat. 313), it was found, as a fact, that the. landlord's fee was not paid and no notice of transfer was served upon the landlord as required by Section 13, Bihar Tenancy Act, which corresponds to s, 12, Bengal Tenancy Act. It was. held that the mere fact that the Registrar or the Collector did not carry out the directions contained in Sections 12 and 13 cannot affect the title of the transferee. It may be noted that, in that case even the requisite fee for serving the notice had not been deposited.

18. I am satisfied that the non-service of notice on the landlord has no bearing on the completion of transfer of title and that the decree for arrears of rent obtained by the landlords in this case does not bind the plaintiff. The plaintiff's title to the suit holding by virtue of his purchase on 15-4-40 is not affected by the later purchase of the same by defendant 1 at court auction in execution of a rent decree, on 15-5-41, and must prevail over the latter.

19. In the result I allow this appeal with costs throughout.

Narasimham J.

20.This appeal is by the plaintiff against the appellate judgment of the Additional District Judge of Cuttack modifying the judgment of the 2nd Additional Munsif of Cuttack in a suit brought by the appellant for declaration of his title and confirmation of possession in respect of 60 1/2 decimals of land which forms part of an occupancy holding comprising: 145 acres recorded in Khata no. 189 of village Adankut, P. S. Tirtol. During the last settlement the said Khata comprised 6-63 acres of land. But since then the holding was split up into two separate holdings consisting of 1.45 acres and 5.18 acres with the consent of the landlords and defendant 2 and his co-sharers were recorded as raiyats in respect of 1.45 acres of the said khata. The plaintiff's father took a mortgage of 60 1/2 decimals of that separate holding from defendant 2 and in execution of the mortgage decree the plaintiff purchased that property through the civil Court on 15-5.40. Soon after the purchase he tiled the necessary fees and processes for service of notice on the landlords as required by sub Section (5) of Section 31, Orissa Tenancy Act, as amended by Orisaa Act VIII [8] of 1938. But it appears that the processes were not actually served on all the co-sharer landlords. Defendants 3, 4 and 5 are the three co-sharer landlords of the khata. For arrears of rent due on this holding defendants 3 and 4 filed a rent suit on 12-4-40 more than a month before the mortgage sale in favour of the plaintiffs and impleaded in that rent suit the recorded tenant (defendant 2) and his co-sharer. Sadai Rout making the other co-sharer landlord (defendant 6) a pro forma defendant in that suit. In due course they obtained the rent decree in November 1940 and in execution of that decree the holding was purchased on 15-5-41 by defendant 1 who obtained delivery of possession through the civil Court. It was conceded before us (though this point was challenged in the lower Courts) that in that rent suit and the subsequent rent sale the requirements of Sections 199 and 212, Orissa Tenancy Act, were complied with. Consequently, the decree would have the effect of a rent decree and the entire holding would pass by the sale unless it be held that the plaintiff is a necessary party to the execution proceeding.

21. The plaintiff's main contention is that by virtue of the mortgage sale dated 15-8-40 he became a co-sharer raiyat of the holding and that as he was not impleaded as a party in the rent suit and the subsequent execution proceeding, the rent-decree had the effect only of a money decree and that consequently his title in respect of 60 1/2 decimals of the holding remained unaffected by the rent-sale. Several other points were taken up both in the trial Court and in the lower appellate Court and also before this Court when it sat as a Division Bench and heard the appeal. At that time Mr. Dasgupta on behalf of the appellant asked for a remand of the appeal for a finding of the lower Court as to whether the mortgage sale in favour of the appellant was duly notified to the landlords in the manner provided in Schedule 1 (5) or else they were otherwise aware of the transfer. He felt so sure of his ability to prove by evidence that the transfer in favour of the plaintiff was brought to the knowledge of the landlords and that they actually made the necessary corrections in their rent-roll and entered the transferee plaintiff as a tenant that he did not rely on the presumption of due service of notices by the Collector under Schedule 1 (5), Orissa Tenancy Act. This Court then remanded the appeal to the lower Court for a finding on this question of fact but unfortunately for Mr. Dasgupta the finding of the Subordinate Judge is to the effect that two of the landlords (defendants 3 and 4) did not have notice of +he transfer either through the machinery provided in Schedule 1, Orissa Tenancy Act, or otherwise. Mr. Dasgupta, however, contended that even if it be held that those landlords did not know about the transfer yet the decree obtained by them in a rent suit (otherwise properly constituted against the recorded tenants) would still have the effect of a money-decree inasmuch as the title of the plaintiff to his portion of the holding become complete as soon as the mortgage sale was confirmed on 15-5-40. Consequently, on the date of the rent sale (15-5 41) one of the parties interested in the holding was not a party before the execution Court and his sight, title and interest cannot, in any way, be affected by the sale. Mr. Sinha on behalf of respondent 1, however, urged that in view of the clear finding to the effect that the transfer was not brought to the knowledge of all the landlords either through the machinery provided in Schedule 1 (5), Orissa Tenancy Act or otherwise such transfer though valid as between the transferor and the transferee (defendant 2 and the plaintiff) could not have a binding effect on the landlords so as to render a rent-decree obtained by them in a suit properly constituted in other respects against the recorded tenants into a mere money decree. In view of the importance of this question and its repercussion on the security of the holding for arrears of rent in north Orisaa it was considered necessary to decide this question in a Special Bench. There is a Division Bench decision of this Court in Giridhari Mohanty v. Abdul Khan, I.L.R. 1950 cut. 195:(A.I.R. (38) 1951 Orissa 41) in which my Lord the Chief Justice (Panigrahi J. concurring) while discussing another case, which on facts is distinguishable from the present one, made some general observations to the effect that the various amendments to Schedule 1, Oriasa Tenancy Act, by the amending Act of 1938 had as their object the conferments of an unrestricted right of transfer either in whole or in part to the raiyat but at the same time making it incumbent on the transferee to give notice of such transfer to the landlord in the manner provided in that section so as to make it binding on the latter. The correctness of some of those observations was also challenged before this. Special Bench.

22. Prior to the amending Act of 1938, the landlord's consent was necessary to make any transfer of an occupancy holding or a portion thereof binding on him and such consent was deemed to be given when he accepted the prescribed transfer fee tendered by a tenant or else when that fee was received by the Collector and a declaration was given by him to the effect that the transfer was registered (see old Section 81). Unless a transfer was so effected the landlord could proceed to sue the recorded tenant for arrears of rent and any decree obtained by him would have the effect of a rent-decree provided that all the co-sharer landlords and co-sharer recorded tenants were made parties. Section 212, Orissa Tenancy Act, .expressly stated that in such a case the entire holding would pass to the purchaser. The landlord was not bound to implead any transferee either of a whole or a portion of the holding whose transfer had not been recognised by him in the manner described above and the omission to so implead such a transferee would not in any way reduce the rent-decree to a money-decree. But there were also some occupancy holdings which were transferable without the consent of the landlord in accordance with custom or usage prevalent in particular localities. The law relating to the transfer of these classes of holdings will be discussed later.

23. In 1938, the Orissa Legislature made radical changes in the Tenancy law mainly with the object of conferring on all classes of occupancy raiyats freedom as regards transfer. In place of old Schedule 1, four new sections (30A, 31, 31 A and 31B) were substituted. Section 30 A expressly declared that the occupancy holding of a raiyat or a portion or a share thereof was transferable without the landlord's consent and without the payment of any fee to him. Section 31 contained elaborate provisions regulating the mode of transfer and service of notice on the landlord. As regards voluntary transfers, registration was made compulsory irrespective of the value of the property and the registering officer was prohibited from accepting for registration any Instrument of transfer unless it was accompanied by a notice signed by the transferor and the transferee giving particulars of the transfer and also the prescribed fee for service of the notice on the landlord. The registering officer was required to transmit the notice to the Collector who was also required to serve it on the landlord is the prescribed manner. As regards involuntary transfers sub-s, (5) of that section required that the Court, before confirming the sale, should direct the purchaser to file a notice giving particulars of the transfer in the prescribed form and to deposit the necessary process fee. After the confirmation of the sale the Court was required to transmit the notice to the Collector who was directed to cause it to be served on the landlord in the prescribed manner. I shall discuss Ss 31A and 31 B later. As a consequential amendment, S 83 was also recast and the transferor and the transferee were made both jointly and severally liable for arrears of tent that accrued due prior to the date of the transfer and such arrear rent was made a first charge on the holding. The contention of Mr. Dasgupta is that by virtue of Schedule 0A an occupancy raiyat was given the unrestricted right of transfer either of the whole or a portion of the holding and as soon as such a transfer was duly registered under Sub-section (2) of B. 31 (in case of voluntary transfers) or the sale of the holding was duly confirmed (in case of involuntary transfers) by a Court under the provisions of Sub-section (5) of Schedule 1 the title of the transferor completely passed to the transferee and that the other provisions regard, ing service of notice on the landlord though intended to inform the landlord about the transfer do not affect the transfer of title. Therefore, even if the notices prescribed in that section are not served on the landlord the transfer was binding on him and if notwithstanding such transfer, he continues his suit against the transferor he runs the risk of having his rent-decree declared to be a money-decree. Mr. Sinha, however, contended that the elaborate provisions made in Schedule 1 for service of notice on the landlord through the Collector made it clear that the object of the Legislature was to make such transfer binding on the landlord only after he became aware of it. Ordinarily in. view of the presumption in favour of regularity of performance of official acts a Court may presume that the notices were duly served on the landlords if it could be shown that the transferee filed the necessary processes and the fee before the registering officer or the Court as the case may be. But where, on the evidence adduced in a case, it is actually found that the notices were not served on the landlords, such a presumption cannot arise and though title might have passed from the transferor to the transferee by the confirmation of the sale such a transfer will not be binding on the landlord until he is made aware of the transfer.

24. The whole question turns on the construction of Sub-section (5) of Schedule 1, but for that purpose that section has to be construed along with Sections 30 A, 31A and 31B which were all contemporaneously inserted in the parent Act by the amending Act of 1938 and which along with Schedule 1 consolidate the law relating to transfers of occupancy holdings. Any necessary implication arising out of the construction of those sections will have a direct bearing on the effect of non-compliance with any of the provisions of Schedule 1 dealing with the mode of transfer. Moreover, the previous law embodied in old Section 31 should be the background against which the provisions of the aforesaid four amended sections should be viewed. As pointed out by the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali, 55 I. A. 96 at P. 103 : (A. I. R. (15) 1928 P. C. 16) :

'When it is contended that the Legislature intended by any particular amendment to make substantial changes in the pre-existing law, it is impossible to arrive at a conclusion without considering what the law was previously to the particular enactment and to see whether the words used in the statute can be taken to effect the change that is suggested as intended.'

25. It is therefore, necessary to closely scrutinise the law on the subject prior to the amending Act of 1938. As early as 1881, a Division Bench of the Calcutta High Court in Panye Chunder v. Hurchunder, 10 Cal. 496, had pointed out that

'According to the common law, quite apart from any statutory provisions, when a tenant transfers his interest to a third person, in order to discharge himself from future liability for rent, and in order that the transferee may have the advantages of the tenancy, one or both of them must give notice to the landlord.'

This common law right of a landlord to receive notice was emphasised by Dr. Rash Behari Ghose in his arguments in Sasi Bhusan v. Tara Lal Singh, 22 Cal. 494. In that case, however, the Judges did not express their views definitely on the question because they were dealing with a non-agricultural tenancy which was governed by Schedule 08 (j), T. P. Act, Bat in a later Madras decision reported in Ranga Raminujachariar v. Srinivasa, A. I. R. (2) 1915 Mad. 34: (26 I. C. 804), Sadasiva Aiyar J., concurred in the view that

'it is the common law of India that on transfer of a tenure with notice the lessee ceases to be liable for rent.'

This common law right received statutory recognition in Schedule 3 of the old Bengal Tenancy Act, 1885 which ran as follows:

'When an occupancy-raiyat transfers his holding without the consent of the landlord, the transferor and transferee shall be jointly and severally liable to the landlord for arrears of rent accruing due after the transfer, unless and until notice of the transfer is given to the landlord in the prescribed manner.'

Prior to 1913 most of the provisions of the Bengal Tenancy Act were in force in Orissa and at the time occupancy holdings were broadly divided into two classes: (1) those holdings which were transferable without the consent of the landlord in accordance with the custom or usage prevalent in a particular locality and (2) those holdings which were not transferable without the consent of the landlord. Section 73 of the old Bengal Tenancy Act dealt with the former class of occupancy holdings only. Therefore, apart from the common law which existed prior to the passing of Bengal Tenancy Act of 1885, it seems well established that from the passing of the Orissa Tenancy Act in 1913, those occupancy holdings which were transferable without the consent of the landlord were controlled by Schedule 3, Bengal Tenancy Act, in accordance with which the landlord was entitled to receive notice of the transfer before the transferor-occupancy raiyat could be absolved from his liability for rent that may accrue even after the date of the transfer. Therefore the claim of the landlord to receive notice before transfers are made binding on him even in respect of holdings which were transferable without his consent is not a new claim nut forward now but is based not only on the common law of India existing prior to 1885 but also on the express provisions of Schedule 3 of the old Bangal Tenancy Act In Maddox Settlement Report at P. 226 it was pointed out that Schedule 3, Bengal Tenancy Act, did not appear to alter the then existing law in Orissa.

26. The Orissa Tenancy Act came into force in 1913 and Schedule 1 of that Act dealt with the law regulating the transfers of occupancy holdings in temporarily Battled estates. Section 73, old Bengal Tenancy Act, was similar to Schedule 3, Orissa Tenanoy Act, but as the latter section was restricted to holdings in permanently settled estates it may be left out of the present discussions. Old Schedule 1, Orissa Tenancy Act, recognised distinctly two steps in the transfer of an occupancy holding so as to make it binding on the landlord. Firstly, there should be an application by the transferee for registration of the transfer. Such, an application gave notice of the transfer to the landlord as required by the common law as well as by old Schedule 3, Bangal Tenancy Act. The next step was the payment of mutation-fee which was fixed at a maximum of 25 per cent of the consideration money. The word maximum' has great importance. Prior to 1913, the exact amount of mutation-fee realised for recognition of transfers by the landlords varied from place to place and in many estates such as a Khasmahal no mutation-fee was charged at all. In fact in Maddox Settlement Report at P. 218 he mentions that in some estates the zamindars recognised the transfers on payment of arrear rent and nominal sums such as Rs. 2 as Dakhil Kharaj Salami without insisting on full payment of 25 per cent. of the consideration money. Therefore, on receipt of the application from the transferee for registration of the transfer and the payment of the prescribed mutation fee or a nominal fee or no fee at all according to the custom or usage prevalent in the estate (which) was expressly saved by Schedule 37) the landlord was bound to recognise the transfer and if he omitted to do so a special provision was made in Sub-section (S) of old Schedule 1 for such recognition through the medium of the Collector. Therefore under the law in force from 1913 to 1938 the previous law which required notice of the transfer to be given to the landlord even in respect of those holdings which were transferable without his consent was maintained by insisting on the transferee applying to the landlord for registration of the transfer and the two steps in the transfer were distinctly recognised.

27. When the Legislature passed the amending Act of 1938 the change in the law was expressed in Sub-section (l) of Section 30 A as follows:

'The occupancy holding of a raiyat, or a portion or share thereof, shall be transferable by Bale, exchange, gift or bequest without the landlord's consent and without payment of any fee to him.'

By this amendment, the necessity of obtaining the consent of the landlord and the payment of lee to him were dispensed with, but his right to receive notice of the transfer which was always existing even before the passing of the Bengal Tenancy Act of 1885 was not expressly taken away. Therefore applying the dictum of the Privy Council mentioned above, the residue of the old law which required knowledge of the transfer on the part of the landlord still continues to exist. When an amending Act changes the old law it is not necessary that the amending Act itself should expressly say what is the residue of the old law that still continues to exist. Doubtless the Court should give full effect to the amendment; but after giving such effect and excising from the old law all elements which were expressly dispensed with by the amendments the residue must continue to remain in force. As pointed out by Maxwell in his Interpretation of Statutes, 8th Edn., p. 73

'the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed.'

Thus when the Legislature knowing fully well that under the old law the landlord was entitled to get notice of the transfer and was also entitled to give his consent on receipt of the customary mutation fee not exceeding 25 per cent, of the consideration money expressly dispensed with the consent and the payment of mutation fee in the amending Act of 1938 and kept completely silent as regards the right of the landlord to receive notice, the reasonable inference is that that right continues to exist.

28. In Expln. (1) to old Schedule 83, Bengal Tenancy Act, the usage under which a raiyat was entitled to sell his holding without the consent of the landlord was expressly saved. Some of the case law under that Explanation is instructive. In Jagun Prosad v. Posun Sahoo, 8 C. W. N. 172, itw as pointed out that

'The essence of' a usage of transferability is that transfers made to the knowledge of but without the consent of the landlord are valid and must be recognised by him.'

This view was reiterated in Peary Mohan v. Joti Kumar, 11 C. W. N. 83. As already pointed out there were always certain classes of occupancy holdings which were transferable without the consent of the landlord according to local custom or usage. But in respect of those classes of occupancy holdings neither under the old common law nor under the provisions of the Bengal Tenancy Act nor under the provisions of the O. T. Act up to 1938 could it ever be validly contended that the transfer was binding on the landlord even if he was not aware of the same On the other hand, the aforesaid discussions make it clear that he was entitled to notice. The amending Act of 1938 dispensed with the necessity of proving custom or usage in every case and unified the incident of transferability of all classes of occupancy holdings by bringing it to the same level as that of those holdings which were always transferable without the consent of the landlord.

29. This was perhaps the reason why in new Schedule 1 elaborate provisions were made for effective service of notice of the transfer through the medium of the Collector instead of leaving it to the choice of the parties. The amending Act of 1938 did not substitute notice of transfer on the landlord in lieu of his consent to the transfer as required by the old law. Knowledge of transfer by the landlord was always required as it is of the essence of transferability. But under the old law, on that knowledge was superimposed the obtaining of the landlord's consent either by payment of mutation, fee or otherwise and it was this necessity of obtaining consent by payment of mutation fee that was expressly taken away by Schedule 0A (l). If the Legislature intended that the giving of notice to the landlord itself should be dispensed with the Legislature could easily have adopted the language used in Schedule 2 as regards the right of transfers of permanent tenures and Schedule 0 as regards devolution of occupancy rights by inheritance. In both those sections, it was expressly stated that the transfer or devolution of the tenure, or the holding, as the case may be, shall be 'in the same manner as other immovable property'. The Legislature could easily have said in Schedule 0A also, as in Schedule 2, that an occupancy holding was capable of being transferred 'in the same manner and to the same extent as other immovable property', If such language had been used the question of notice to the landlord could not have arisen because ordinarily in transfers of immovable property the giving of notice to a third party is not required to complete the transfer. The elaborate provisions made in Schedule 1 for the giving of effective notice of transfer to the landlord through the medium of the Collector indicate unmistakably that the Legislature did not change the old law regarding the giving of notice to the landlord but put it on a surer footing.

30. Au indication as to the stags at which the transfer is binding on the landlord seems inferable from a scrutiny of Sections 31A and 31B. Sub-section (l) of Schedule 1A says that where a transfer of a portion of a holding is not defined by metes and bounds the transferee and the persona possessing interest in the remainder of the holding shall be considered as joint tenants by the landlord. The word 'considered' occurring in this sub-section has been rightly emphasised by Mr. Sinha as implying that as soon as the landlord is made aware of the transfer he is bound to consider the transferee and the parsons possessing interest in the remainder of the holding as joint tenants. If the contention of Mr, Dasgupta is correct and the title passes completely as soon as the sale is confirmed Sub-section (l) of Schedule 1A becomes otiose. The right of free transfer having been declared in Section 30A and the mode of transfer having been declared in Schedule 1 the transferee and the person possessing interest in the remainder of the holding become joint tenants by virtue of those sections and there would have been no need to make a pious declaration in Sub-section (1) of Schedule 1 A, A consideration of Sub-section (a) of Schedule 1A leads to a similar result. That sub-section authorises the landlord to apply within six months of the date of service of notice of the transfer for a just and equitable distribution of rent in those cases where a transfer is of a portion of a holding and the portion is defined by metes and bounds. If he fails to apply within such time, his consent to the division and distribution of rent shall be deemed to have been given. Thus where a transfer of a portion of a holding is by metes and bounds the landlord is authorised to take further steps on receipt of notice and visits him with a penalty if ha omits to take such steps within a stipulated period. Thus the provisions of Schedule 1A imply that the binding nature of the transfer, where it is a transfer of a portion of a holding as against the landlord, arises only after he is made aware of the transfer. Section 31 deals with all classes of transfers, namely (l) transfer of an entire holding, (2) transfer of a portion of a holding defined by metes and bounds and (3) transfer of a portion of a holding not defined by metes and bounds and-makes no distinction as regards the mode of transfer of service of notice on the landlord in respect of those three classes of transfer. If, therefore, in respect of two of those classes, Schedule 1A, by necessary implication, indicates that there must be actual service of notice on the landlord so as to make it obligatory on him to consider the transferee and other parsons as joint tenants or to take further steps for apportionment of rent, it will be illogical to hold that in respect of the transfer of an entire holding no such service of notice is necessary.

31. A similar result would follow from a consideration of Schedule 1B which deals with transfers that took place prior to 1938 and which remained unrecognised on the date of the amending Act. Under Sub-section (l) of that section, the right of a landlord to realise transfer fee lawfully payable was recognised but at the same. time such transferee was held not liable for ejectment on the ground that the consent of the landlord had not been given. Sub-Section (2) and the Explanation thereto being of great importance in the present discussion may be quoted in full.

'(2). The holding or a portion or a share thereof shall not be liable to be sold in satisfaction of the decree for arrears of tent without making the said transferee a party to the proceedings in execution of the decree provided that the transferee has given notice of transfer by registered post to the landlord.

Explanation Notwithstanding anything contained in this Act or in the Code of Civil Procedure, in the case of a transfer of a holding or a portion of a share thereof, whether before or alter the decree, the transferee may be brought on record in the proceedings in execution either in substitution of or in addition to the judgment debtor, and such transferee shall, when so added or substituted, be treated as a judgmant-debtor for all purposes of the said proceedings in execution of: the decree.'

It is here that the Legislature for the first time expressly states that in respect of pre-1938 transfers the holding shall not be liable to sale in execution of a decree for arrears of rent with, out making the transferee a party provided that the transferee has given notice of the transfer by registered post to the landlord. This shows that the Legislature intended that the duty of the landlord to implead the transferee arises only after he is given notice of the transfer. It is true that such notice was required to be given by registered post whereas in the case of transfers made after the amending Act of 1938 such notices ware required to be served through the Collector But the difference as regards the medium for the service of notice in respect of these two classes of transfers is unavoidable because as regards pre-1938 transfers whether voluntary or involuntary, there can be no question of filing the processes etc., either before the registering officer at the time of registration of the transfer or before the Court at the time of the confirmation of the sale because these had terminated long ago. The Legislature had no other option but to require service on the landlord by registered post, but it was very particular that in respect pre-1938 and post-1938 transfers, the machinery for service of notices on the landlord should be very effective. As regards the meaning of the words 'giving notice by registered post' Schedule 9, Orissa General Clauses Act, 1937 is very clear. Though such a notice would be deemed to have been effected by properly posting the notice by registered post the non-receipt of the notice can also be proved. That is to say if by evidence it is proved that the notice is not received by the addressee the presumption under that section would not apply. In my opinion, the main object of Schedule 1B was to validate all pre-1938 transfers and to place them on the same footing as post 1938 transfers except to the limited extent of retaining the landlord's right of realisation of mutation fee in respect of the former class of transfers. It will be illogical to say that after conferring unrestricted right of transfer on occupancy raiyata in 1938 and after expressly declaring that even in respect of pre-1938 transfers the landlord had no right of eviction and that the obligation of the landlord to implead the pre 1938 transferee in his rent execution proceedings would arise only after service of notice of the transfer, the Legislature intended that in respect of post-1938 transfers such obligation would arise irrespective of the service of notice especially in view of the nature of the machinery chosen in both classes of transfers for service of such notices. A question may be asked as to why, when the Legislature took so much precaution to express itself dearly in Sub-section (2) of Schedule 1B in respect of pre-1938 transfers, no such declaration was made in Schedule 1. The Legislature could easily have inserted another section in Section 31 very similar to Sub-section (2) of Schedule 1B and had it done so, the present controversy would perhaps have never arisen. But the absence of such a provision is quite understandable. The rule for the construction of a statute prospectively is not so stringent as the rule for construing it retrospectively. Retrospective effect cannot be given unless it is expressly so provided or else such effect follows by necessary implication. Hence for pre-1938 transfers express provisions had to be made in Sub-section (2) of Schedule 1B. As regards post 1933 transfers the Legislature perhaps thought that the changes brought about by the amendment when read with the residue of the old law would indicate that service of notice on the landlord was always necessary.

32. The Explanation to Sub-section (2) of Section 31B is equally helpful. The words in it are wide enough to apply to all transfers, whether made. prior to the amendment of 1938 or after the. amendment; of 1938. It seems just an accident (or perhaps an oversight on the park of the draftsman) that it was inserted as an. Explanation to Schedule 1B and it might for all. practical purposes have remained as an independent section. This question has been fully discussed in Giridhari Mohanty v. Abdul Khan , I.L.R. 1950 cut. 195 at p. 200: (A.I.R. (38) 1951 Orissa 41) by my Lord the Chief Justice and with respect I would agree with his observations. When the words of this Explanation are in terms wide enough to include all classes of transfers there seems to be no justification for restricting it to pre-1938 transfers merely because it appears as an Explanation to Schedule 1B

33. Thus I would hold that on a fair cons-' traction of 3a. 31, 31A and 31B and considering the same in the light of the law as it stood prior to 1938 the reasonable inference is that the landlord is not bound to implead the transferee in his rent execution proceedings unless he knows or must be presumed to know such transfer. Where, on the evidence in a case, such presumption is rebutted and it is found as a fact that he is unaware of the transfer he is not bound to implead the transferee at the risk of having his rent-decree reduced to the position. of a money-decree.

34. Mr. Dasgupta, however, contended that if such a view be taken the unrestricted right of transfer conferred by the amending Act of' 1938 would, in many eases, be made ineffective by a landlord who could conveniently evade, the service of notice and thus bring the holding to a rent-sale by impleading only the recorded raiyats. He urged that so long as the transferee was not guilty of any laches and had filed the necessary processes and the fee either before the registering officer or before the Civil Court under Schedule 1, he should not be visited with any penalty for non-service of such notice due to. any fault either in the office of the Sub-Registrar or Civil Court or of the Collector. This argument, however, overlooks one important fact, namely, that when a person purchases an occupancy holding be knows, or, at any rate, is presumed to know, that under Schedule 3, Orissa Tenancy Act, he is also jointly and severally responsible for the arrear rant and that such rent is a first charge on the holding. It is, therefore, his duty to find out, as soon as the transfer is effected, whether any arrear rent is due on the same and he could easily obtain this information at the office of the landlord in every village. On ascertaining about such arrear there is nothing to prevent him from rushing: to the rent Court depositing the arrear rent and thereby saving the property from sale. Moreover, at the time of attachment in the rent execution proceeding, when the processes are served at the spot he gets another opportunity to know about the existence of arrear rent on the holding and there is nothing to prevent him from appearing before the Rent Court to be made a party. Under Schedule 28, he could save the property from sale by depositing the decretal dues within 30 days of the sale. Therefore, the hardship to a bona fide transferee that is visualised by Mr. Dasgupta disappears if he exercises even ordinary prudence in the management of his affairs. If he thinks that his duty is completed as soon as the processes are filed in the civil Court (in the case of involuntary transfers) and that he need not bother as to whether any arrear rent is due, he runs the risk of the entire holding being sold after impleading the recorded transferee, in the present case there was an interval of one full year (15-5-40 to 15-6-41) between the date of the plaintiff's purchase from the recorded tenant and the date of the rent sale, Daring that period the plaintiff took absolutely no steps for payment of the arrear rent. The arrear had accrued prior to the plaintiff's purchase and inasmuch as the plaintiff's purchase was only of a portion of a holding the recorded tenant still continued to be a tenant for a major portion of the holding. From the plaintiff's conduct it can reasonably be held that he acquiesced in the recorded tenant continuing to represent the holding and there is thus no question of any equitable construction in his favour,

35. Mr. Dasgupta's contention, however, requires omniscience on the part of the landlord and visits him with the penalty of having his rent decree reduced to the position of a money decree for the sole reason that he was not aware of the transfer, especially when it took place after the institution of his rent suit as in the present case. It is also equally unfair to a bona fide purchaser for value in the rent sale. It was then urged that the amending Act of 1938 being a remedial statute should not be so construed as to defeat its main object of conferring complete freedom of transfer on occupancy raiyats. This argument, however, overlooks the fact even if the opposite view be accepted that the transferee is not required to prove in every case that the notice was actually served on the landlord and thus the object of the statute is not frustrated. Once he proves that he deposited the requisite fees and processes before the civil Court, and that Court passes order for the issue of those processes to the Collector, he can rely on the presumption of due performance of further official acts and thug shift the burden of rebutting that presumption on the landlord or on the auction-purchaser in the rent sale. In the present case such 'a presumption was not avail, able to the plaintiff because though Ex. 7 shows that the processes were filed before the civil Court, there is no order of the Court for the issue of those processes to the office of the Collector. This case is, therefore, of an exceptional nature and cannot justify the construction of the provisions of Schedule 1 dealing with the service of notice on the landlord as merely directory and not mandatory or as having no hearing on the question of the duty of the landlord to implead the transferee in the rent execution proceeding. It is easier for a transferee raiyat to know about the arrear rent due on his holding than for a landlord to know about the transfer effected by any one of his innumerable raiyats. No construction which would penalise a landlord for omitting to implead a transferee, about whose transfer he is unaware, can be justified especially when Section 81 does not expressly declare to that effect and when the opposite construction does not, in any way, cause any hardship to a bona fide transferes and is thus not defeating the main object of the amending Act.

36. Moreover, if Mr. Dasgupta's contention is accepted, the security of the holding for arrears of rent and the special incidents of a rent sale provided in chap. XVI could in most of the cases be nullified. As soon as a rent decree is obtained by a landlord against a recorded tenant and execution is applied for either orally or under Schedule 17, the recorded tenant may, if he is unable to pay the decretal amount, transfer the holding in favour of a third party in an out of the way sub-registrar's office prior to attachment at the post. Notice of transfer would in the usual course take three to four months for actual service on the landlord. In the meantime, a landlord acting in good faith without knowledge of the transfer, would have brought the holding to sale and it might be purchased by a third party. Then he may be met with the plea that prior to the date of attachment, the judgment-debtor's entire interest had been validly transferred and that consequently by the rent sale nothing passed. Thus the rent decree would be reduced to a scrap of paper and the landlord would be compelled to bring a fresh suit against the transferees subject to the law of limitation. In ordinary litigations relating to immovable properties such difficulties cannot arise because the law of Us pendens (S 52, T. P. Act) would save the plaintiff-decree-holder. But that provision is not applicable to a rent suit inasmuch as in such a suit; no right to immovable property is directly and specifically in question. Therefore any construction of Section 31 which would nullify the effect of a rent decree and weaken the security of the holding for arrears of rent on which the whole of chap, XVI, Orissa Tenancy Act, is based, seems not justifiable especially when there is no express provision to that effect in the amending Act.

37. Whenever any statute refers to the 'giving of notice' to any person, such a notice is generally effective against that person only when it is actually served on him or also when, in the absence of any evidence to the contrary, it may be presumed to have been served on him. The entire Civil Procedure Code is based on this principle and Schedule 7, General Clauses Act, 1897 and the corresponding Schedule 9, Orissa General Clauses Act, 1937, merely reproduce this principle. There are several sections in the Orissa Tenancy Act which refer to the giving of notice to a person and in respect of all of them the binding nature of the notice on that person arises only after actual receipt of the notice by him. At this stage I would defer the consideration of the provisions of Sections 14 to 16, Orissa Tenancy Act, dealing with transfer of tenures which will be dealt with separately. Section 57B refers to the liability of an under raiyat to be ejected -by his landlord at the end of the agricultural year when such notice to quit has been served on him. Similarly, Section 82 refers to the liability of a tenant to pay rent to the transferee from the original landlord when notice of such transfer has been given to him. Section 97 deals with the liability of a raiyat who has surrendered his holding to indemnify the landlord for loss of cent due to the surrender unless he gives notice in writing of his intention to surrender. Subsection (4) of that section authorises the Revenue Court to serve such notices. I do not think it will ever be contended that the liability of the tenant to indemnify the landlord under Schedule 7 (2) will be removed unless it be shown that the notice was actually served or may be presumed to have been served on the landlord. Section 98 says that when a tenant abandons a holding the landlord may enter on it after filing a notice in the Collector's office. Under Sub-section (8) of that section the limitation for a suit by the tenant for recovery of possession of that land is within two years from the date of the publication of the notice. I may also refer to Sections 104, 307 (l) and 221 (4). There seems to be no reason, in the absence of any provision in Schedule 1, to hold that the same principle should not apply in construing that section. The landlord is after all not a stranger third party but he is also interested in the holding as his rent is the first charge on it and any transfer made after the institution of his rent suit adversely affects him. In this connection I can do no better than quote the observations of Field J., in Panye Chunder v. Hurchunder, 10 Cal. 496 :

'When a decree-holder seeks to execute his decree against property, movable or immovable, it is his duty to make sure that the property which he brings to sale in execution is the property of the judgment-debtor, and, if he makes any mistake, he does so at his own peril. The circumstances of the present ease are, I think, an exception to this general rule. The landlord, the decree-holder, knew that the person whom he sued was his tenant. No doubt that tenant had by law the right to transfer his tenure, but the same law cast upon the transferee the duty of giving the landlord due notice of the transfer, and unless the transferee discharged the duty so cast upon him, the landlord was not in my opinion bound to look beyond the information contained in any sirishta, and cannot be affected with knowledge of a fact not communicated to him by the person whose duty it was to communicate it.'

Though that decision related to tenures governed by Bengal Act VIII [8] of 1869 which has long since been repealed, the soundness of those observations has not been doubted in any subsequent decisions, though this case was subsequently considered and distinguished in Afraz Mollah v. Kulsumannessa Bibee, 10 C. W. N. 176 :(4 C. L. J. 68).

38. I may now refer to the parallel provisions in the Bengal Tenancy Act on which learned counsel for both sides have relied. In Bengal, prior to 1928, an occupancy raiyat had no right of transfer without the consent of the landlord except by custom and consequently the landlord could obtain a valid rent decree by impleading only those tenants recorded in his rent-roll. But in 1928 such right of transfer was conferred by new 8s. 26A to 26J which made elaborate provisions for payment of landlord's fee. But as regards the proper representation of the tenants in rent suits a new provision (s. 146a) was inserted and Sub-section (3) of that section settled the matter beyond all doubt. It is not necessary for the present discussion to refer to that section. Mr. Das relied on Maharaj Bahadur Singh v. Nari Mollani, A. I. R. (23) 1936 Cal. 279: (63 Cal. 1117). But that decision was distinguished and explained in Nagendra Nath v. Niranjan, A. I. R. (24) 1937 Cal. 665: (I. L. R. (1938) 1 Cal. 164). The Calcutta decisions relating to transfers of occupancy holdings are, therefore, not of much help in view of the express insertion of Schedule 46A. Bengal Tenancy Act, dealing with the vexed question of representation of co-sharer tenants. But there are several decisions under Sections 19 and 13, Bengal Tenancy Act, dealing with transfers of permanent tenures which might throw some light. Section 11 of that Act says that a permanent tenure is capable of being transferred or bequeathed in the same manner as other immovable properties. This section thus recognises unrestricted right of transfer. Section 12 describes the procedure for voluntary transfers of permanent tenures and directs that a registering officer shall not accept for registration any instrument of such transfer unless the prescribed fee and processes are filed. Such processes should be served on the landlord in the prescribed manner. Similarly Schedule 3 contains provisions for involuntary transfers through court sales and directs that before confirming the sale the purchaser shall deposit the landlord's fee and processes which should be served on the landlord in the prescribed manner after confirmation of the sale through the Collector. These two sections undoubtedly bear very close resemblance to Schedule 1 Orissa Tenancy Act, and in fact the language is, in many respects, identical. It has, however, been held in a series of decisions beginning with Kristo Bulluv v. Kristo Lal, 16 Cal. 642, Chintamoni v. Rasn Behari, 19 Cal 17, Surapati Roy v. Ram Narain, 50 Cal. 680 : (A. I. R. (10) 1923 P. C. 88), Barada v. Tarak Nath, A. I. R. (13) 1926 Cal. 844 : (94 J. C. 147) and Jitendra Nath v. Monmohan Ghose, A. I. R. (17)'1930 P. C. 193 : (58 Cal. 30l), that a transfer of a permanent tenure is complete soon after registration or confirmation of the sale, as the case may be, and the mere fact that notice of such transfer was not received by the landlord in the manner provided in Schedule 2 or in Schedule 3 would not in any way invalidate the transfer or justify the landlord in continuing his rent gale against the transferor. Mr Dasgupta urged that the principle should apply for transfers of occupancy holding?. But in applying the decisions based on Sections 12 and 13 of the Bengal Act to a transfer under Schedule 1, Orissa Tenancy Act some of the important distinctions between permanent tenures and occupancy holdings should not be overlooked. Firstly, as regards permanent tenures, Schedule 1 gives complete unrestricted right of transfer whereas the corresponding S, 30A, Orissa Tenancy Act, merely says that an occupancy holding may be transferable by sale without the landlord's consent and without payment of any fee to him. In other respects the old law remains unaffected. Secondly, even in Bengal it was held in Babar Ali v. Krishnamanini Dassi, 26 Cal. 603: (3 C.W.N. 531) that the unfettered freedom of transfer conferred by the Bengal Tenancy Act was intended to be exercised in strict conformity to the conditions of the Act prescribed in Sections 12 and 13 and unless those conditions were substantially complied with the transfer was invalid and ineffectual. This decision necessitated the passing of an amending Act known as the Bengal Tenancy Validation Act, 1903 (Bengal Act I [1] of 1903) which expressly stated that as soon as transfers of permanent tenures are registered and sales of such tenures are confirmed by the Courts, the transfer is complete and it shall not be deemed to be invalid merely on the ground that the landlord's prescribed fee had not been paid. This Act of 1903 thus settled the controversy and made it absolutely clear that the provisions of 8s. 12 and 13, Bengal Tenancy Act, providing for transmitting notice and transfer fee to the landlord cannot affect the transfer of title. Therefore all decisions subsequent to 1903 regarding compliance with the provisions of Sections 12 and 13, Bengal Tenancy Act being based on those express provisions cannot be of much; guide in the present case where there is no provision similar to the provisions of the validating Act. The law in the present case seem to be somewhat similar to what it was prior to the passing of that Act of 1903 in Bengal and the principles laid down in Babar Ali v,. Krishnamanini Dassi, 26 Cal. 603 : (3 C. W. N., 531) would apply. That is to say, there must be substantial compliance with the provisions of: Schedule 1, Oriasa Tenancy Act, regarding the mode of transfer before such transfer can be said to be effectual and valid. Thirdly as regards permanent tenures, there was no provision similar to old Schedule 3, Bengal Tenancy Act, making the transferor also jointly and severally liable for arrears of rent accruing due after the transfer unless and until notice of the transfer is given to the landlord. That section applied only to occupancy holdings. Therefore whatever common law right might have existed prior to the passing of the Bengal Tenancy Act, 1885, in absence of any express provision in that Act and in view of the unambiguous language used in Schedule 1 to the effect that the transfer of a permanent tenure can be made 'in the same manner and to the same extent as other immovable property, the transferor's liability ceased as soon as title passed to the transferee in the manner provided in Schedule 2, Bengal Tenancy Act. This was perhaps the main reason why in Kristo Bulluv v. Kristolal, 16 Cal. 642, Petheram C. J. held that a suit brought against the transferor for rent after he has transferred the tenure is not maintainable. In fact he has made this absolutely clear in the following para of the judgment:

'The liability here is a liability in consequence of the estate and it is admitted that it is an ordinary rule that the liability censes when the estate is transferred.'

Fourthly the permanent tenures were freely transferable without the consent of the landlord, long before the passing of the Bengal Tenancy Act in 1885. Hence Sections 11, 12 and 13 of that Act did not make any change in the law dealing with such transfers. But in the Orissa Tenancy Act, Sections 80A and 31 changed the previous law and have to be construed against that background for ascertaining the extent of the change so effected.

39. A closer scrutiny of the various Calcutta and Patna decisions regarding transfers of permanent tenures would show that in almost all those cases it was found as a fact that the landlord had actual knowledge of the transfer and in spite of that knowledge he continued the proceedings against his recorded tenure-holder. For instance in Giris Chandra Guha vKhagendra Bath, 13 C. L. J. 613: (9 1. C.1001), the landlord having noticed that the tenure passed into the hands of the transferee brought the rent suit against the recorded tenant and thereby ran the risk of having his suit declared to be not properly constituted and the decree not being a rent decree. Similarly, in Surapati Roy v. Ram Narain, 50 Cal. 680: (A. I. R. (10) 1923 P. C. 88, the landlord was fully aware of the transfer of a portion of the tenure and in fact in a previous suit between the parties the trans, ferors had entered appearance and denied their liability on the ground that they had parted with their interest. In spite of that knowledge the landlord continued a fresh suit against all the recorded tenants. Similarly, in Jitendra Nath v. Manmohan, A. I. R. (17) 1930 P. C, 193 : (34 G. W. N. 821) which is the leading Privy Council case on the subject, their Lordships devoted two paras to the question of the landlord's knowledge of the transfer and held that there was unrebutted evidence of such knowledge. They further held that:

'When the landlord knows or must be taken to know that the recorded tenants' interest in the tenure had ceased be could not ignore such transfers and rely upon decrees obtained by him against the transferors.'

Similarly in Prabhibati v. Lalji Mahto, A.I.R. (31) 1944 pat 252: (23 Pat. 356), there was a clear finding to the effect that the landlord had full knowledge of the transfer. The only decision in which it was held that even if the landlord had no knowledge of the transfer he was still bound to implead the transferee in his rent suit is Chandra Sekhar v. Jagarnith Singh A. I. R. (32) 1945 pat 313 : (24 Pat. 148). It is not necessary for me to say how far that decision is correct. But as already pointed out that decision itself is based on the Bengal Tenancy Validation Act, 1903 which confers complete title to the transferee of a permanent tenure irrespective of the service of processes on the landlord. Therefore that decision may not apply to the present case.

40. In Sarasvati Gharan v. Suraj Deo, A. I. R. (15) 1938 pat. 367 : (7 Pat. 167), there is an interesting discussion about how far there should be compliance with Sections 12 and 13, Bengal

Tenancy Act, but in that case there was a complete failure to comply with the provisions of Sections 19 and 13 and therefore the question as to what would happen when the transferee has done his part of the duty by depositing the landlord's fee and processes before the Court and when the failure to serve notice on the landlord was due to the laches of the Court or the Collector did not come up for decision. In fact Sir Dawson-Miller C. J. left the question open by the following words:

'It is unnecessary to determine whether If the plaintiffs had done all that was required by them and still the landlord had not received notice they could then have contended that the rent suit was not properly constituted.'

A recent Calcutta decision reported in Menajuddin v. Heronuddin Mullick, 225 I. C. 575 : (A. I. R. (34) 1947 Cal. 137) is also helpful in the present dissuasion. There the superior landlord instituted a rent suit against the recorded tenure holders and obtained his decree and in execution of the same put the tenure to sale. But prior to the rent sale the tenure was purchased in execution of a mortgage decree by a third party. The main question canvassed in that case was whether the rent sale affected the rights of the purchaser in execution of the mortgage decree who was not made a party in that sale. The Court held that the purchaser's right was not affected. But one of the arguments advanced was that the landlord could not make the purchaser in execution of the mortgage decree a party because he was not aware of that purchase. Mukherji J. deals with this question as follows:

'IS appears that there is oral evidence on the record which is practically one sided and which goes to show that the landlords had knowledge, Quite apart from that, as the sale was in execution of a mortgage decree, notice would be served upon the landlords under the provisions of Schedule 3. Bengal Tenancy Act. The presumption in law would be that such notices were served. It was certainly open to the landlords to rebut that presumption by showing that no notice was served upon them or even if it was served at all, it was served alter the rent sale took place, but no such evidence was adduced by the defendants to this suit, and consequently, we are unable to say that the landlords had no knowledge of the plaintiff's purchase.'

The passage underlined (here italicised) seems to indicate that if the presumption is rebutted by evidence and it is proved that the landlord did not have knowledge of the transfer, the decision in that ease might have been otherwise. Though all these cases relate to transfers of permanent tenures and though the Bengal Tenancy Validation Act, 1903 had removed all doubts about the passing of title on transfer, neither the Privy Council in Jitendra Nath v. Manmohan, A. I. R. (17) 1930 P. C. 193 : (34 C. W. N. 821) or in Surapati Roy v. Ram Narain, 50 Cal 680: (A. I. R. (10) 1923 P. C. 88) nor the High Courts in the above-mentioned cases, have held that where the landlord had no knowledge of the transfer he was still bound to find out who the transferee was and to implead him in his rent execution proceedings. This indicates that knowledge of the transfer on the part of the landlord is one of the important circumstances in considering how far his rent decree and sale in execution thereof carried on against the recorded tenants without impleading the transferee, would have the effect of a money-decree only. Bearing in mind the important distinguishing features between a permanent tenure and an occupancy holding and the inferences arising from a construction of SS 31a and 31B, it would appear that in cage of transfer of a portion of an occupancy holding governed by Schedule 1, Orisaa Tenancy Act, it will not be reasonable to hold that whether the landlord had knowledge of the transfer or not he was still bound to implead the transferee so as to obtain the full effect of a rent decree.

41. Even on the question of representation, I do not think Mr. Dasgupta has a good case. This is not a case of a transfer of an entire holding but only of a portion of the holding. The recorded tenant was still the owner of a substantial portion (more than two-thirds) of the holding and though the transfer in favour of the plaintiff took place about a year before the rent sale he did not care to enter appearance in the rent execution proceedings for being made a party. When the landlord brought the rent suit the recorded tenants alone had interest in the holding and the suit was thus properly framed in its inception. Under such circumstances and in view of the joint and several liability of the transferor for arrear of rent as provided in Schedule 3 it may be held that the holding was adequatly represented by the recorded tenants. This principle of representation by acquiescence was recognised as early as 1902 in Rajani Kant v. Uzir Bibi, 7 C. W. N. 170 and it was reiterated in Gagan Sheikh v. Abejan Khatun, 14 C. L. J. 180 : (10 I. C. 116).

42. My learned brother Panigrahi J. (whose judgment I have had the advantage of reading) has relied on Ayenddin Nasya v. Srish Chandra, 11 C. W. N. 76, Samiruddin v. Benga, 13 C.W. N. 630 and Tulsi v. Dayal, 15 I. C. 718 (Cal.) in support of the view that the question about the transferability of the holding may be raised by the landlord against the transferee but not by the auction-purchaser after the transfer in favour of the plaintiff and that such a purchaser had no right to question the validity of the first transfer. But with respect I should point out that a closer scrutiny of the aforesaid three decisions would reveal fundamental differences between the facts of those cases and the facts of the present case. In Ayenddin Nasya v. Srish Chandra, 11 C. W. N. 76 the defendant was a lessee from a co-sharer landlord who had purchased the holding in execution of a decree for his share of the rent only. That decision was given in 1906. At that time there was no provision in the Bengal Tenancy Act enabling a co-sharer landlord to obtain a decree for his share of the rent while at the same time having the effect of a rent-decree so far as the sale of the holding was concerned. It was only in 1907 that a new Schedule 48-A was inserted in the Bengal Tenancy Act by the amending Act I [1] of 1907 in consequence of which a co-sharer could after complying with the provisions of that section obtain a decree for his share of the rent which would be as effectual as a rent-decree by the sole landlord. Prior to 1907 therefore a rent suit by a co-sharer was always regarded as only a money-suit. In the Orissa Tenancy Act, however, Schedule 99 was specially inserted corresponding to Schedule 48-A, Bengal Tenancy Act, conferring on the co-sharer the special right of realising his share of the rental without in any way reducing his decree from a rent-decree to a money, decree. I have already pointed out that the present suit is of that type and the decree would therefore have the effect of a rent decree unless the plaintiff appellant can succeed on other points discussed already. Ayenddin Nasya v. Srish Chandra, 11 C.W. N. 76, is therefore clearly distinguishable. Samiruddin v. Benga, 13 C. W. N. 630, deals with different set of facts. In Tulsi v. Dayal, 15 I. 0. 718 (Cal.), also the rent sale was in execution of a decree obtained by a co-sharer landlord and there is nothing to show that the special procedure prescribed in Schedule 48-A, Bengal Tenancy Act was followed. Those decisions are, therefore, not of any-help. On the other hand, in Menajuddin v. Heranuddin, 225 I. C. 575 : (A. I. R. (34) 1947 Cal. 137), this question about the transferability of the tenure was raised not by the landlords or the recorded tenants on the one hand and the transferees on the other but by subordinate tenants of the tenure who challenged the right of the purchaser of the tenure in execution of the mortgage decree on the ground that the entire tenure had been purchased in a rent sale by another party. Their right to challenge the title of the purchaser in the mortgage decree was not disputed. Therefore I do not think that it can be maintained that the defendants are not entitled to raise the question about the passing of the entire holding in the rent sale.

43. I would, therefore, hold that the necessity, of impleading a transferee of an occupancy holding or a portion thereof in a rent execution proceeding so as to have the full effect of a rent decree and rant sale, arises only if the landlord receives notice of the transfer through the machinery provided in Schedule 1 or becomes aware of it by other means. Doubtless there may be a presumption that he did receive notice of the transfer if the transferee had deposited the processes and necessary fees either before the registering officer or before the Court as required by Sub-section (a), (6) and (6) of that section, But this is only a rebuttable presumption and if the evidence in a particular case shows that the processes were not actually served and the landlord had no knowledge through other sources it will not be correct to hold that rent decree and rent sale in execution there of obtained by the landlord against the recorded tenants would have the effect of a money, decree,

44. I would, therefore, affirm the judgment of the lower Court and dismiss the appeal.

Jagannadhadas J.

45. I have had the advantage of reading the judgments of my learned brothers, Panigrahi and Narasimham JJ. I have also read with care the observations of my Lord the Chief Justice in Giridhari Mohanty v. Abdul Khan, I. L. R. (1950) Cut. 195: (A.I.R. (38) 1951 Orissa 41), having a bearing on the questions arising in this case. I am conscious of the fact that having regard to the vast experience of his Lordship the Chief Justice as regards the Tenancy Laws of Orissa, great weight is due to his views. I have accordingly bestowed anxious thought on the questions raised before us, and have come to the conclusion that the non-receipt of notice by the landlord contemplated under Schedule 1 (5), Orissa Tenancy Act, does not by itself, have the effect of rendering the transfer of the occupancy holding or of a portion or share thereof not binding against the landlord.

46. On the facts found in the ease, which I need not repeat, the question that arises for consideration is whether in execution of a decree against defendant 2, the recorded tenant, for arrears of rent which accrued prior to the data of the transfer of a portion of the holding in favour of the plaintiff, the entire holding including the plaintiff's share or interest therein could be validly sold though the plaintiff was not a party to the proceedings. As pointed out by my Lord the Chief Justice in Giridhari Mohanty v. Abdul Khan, I. L. R. (1960) Cut. 195 at P. 199 : (A. I. R. (38) 1951 Orissa 41):

'The position of law is too well settled to be controverted that at the time of sale in execution of a decree for recovery of rent, the entire landlord's interest and also the ryoti interest should be represented respectively by the decree-holder as well as the judgment-debtor. Any one of these parties having ceased to have either the landlord's interest or the ryoti interest, as the case may be, the execution and the sale thereunder should lose the character of being an execution of a rent decree as such with the result that the sale will not pass the holding or the tenancy as the case may be.

As a principle, it is fundamental that nobody's property will be sold except in a proceeding to which he is a party.'

(See also A. H. Forbes v. Maharaj Bahadur Singh, A. I. R. (1) 1914 P. C. 111 : (41 Cal. 926) and Aradhan Mondal v. Abhoya Charan, A. I. R. (10) 1923 Cal. 321 : (68 I. C. 626), These observations apply with equal force whether what is sold is a whole or a part of the rayati holding. In considering the question at issue in the case, I must point out at the outset that in the course of the arguments and discussions before us, the distinction between the effect of non-joinder of the plaintiff as the part-owner of the holding, and the liability of the holding to be represented by defendant 2 the recorded tenant in the circumstances, so as to bind the plaintiff's interest in an action by the landlord, has not been kept in view. The whole argument has proceeded on the footing that the decision of the case turns only on whether by virtue of the transfer the title itself to the part transferred has or has not passed to the plaintiff so as to bind the landlord. It is the non-appreciation of these two as distinct legal positions that has caused not a little difficulty in the correct appreciation of the legal question involved. It may also be noticed that the question as to who are necessary parties to proceedings taken by the landlord to bind the tenant's interest in the holding is not in terms prescribed by any provision of the Oriasa. Tenancy Act. Sections 199, 212 or S.197 do not provide for this and one must turn only to the general law for the purpose. (See Rampada Nag v. Kanai Rai, A.I.R. (13) 1926 Cal. 1219 at p. 1220, Col. II : (98 I. C. 206.)) Under that law every person having an interest in the holding must be impleaded as a party if the holding is to pass and this obligation does not depend on notice or knowledge of the transfer.

47. I shall first take up the question whether or not defendant 2's interest to the extent of what has been transferred, must be taken to vest in the plaintiff so as to bind the landlord also and to render him a necessary party to proceedings by the landlord against the holding. As I have said at the outset, I have no hesitation in coming to the conclusion that it doss, in agreement with the view of my learned brother Panigrahi J. Even apart from any authority, and on a fair and reasonable consideration of the group of sections that were introduced into the Orissa Tenancy Act of 1938 by Orissa Tenancy Amendment Act, 1938 (Orisaa Act VIII [8] of 1938), this result must follow. By Schedule of the amending Act, a new Schedule 0-A was inserted into the parent Act, which categorically states that

'the occupancy holding of a raiyat or portion or a share thereof shall be transferable by sale, exchange, gift or bequest without the landlord's consent and without payment of any fee to him' and that 'such a transfer shall carry with it the occupancy right in the holding and all the rights appurtenant thereto.'

Section 7 of the amending Act substitutes a new Schedule 1 for the previous Schedule 1 and provides for the manner of transfer and notice to the landlord. That section enjoins that every such transfer shall be made by a registered instrument, except in the case of a sale in execution of a decree or a certificate signed under the Bihar and Orissa Public Demands Recovery Act. Sub sections (2) and (3) enjoin on the registering officer not to accept an instrument for registration, unless notice containing certain particulars in the prescribed form is filed and a prescribed fee for service of notice on the landlord is deposited. It also enjoins on him that after registration, he should transmit the notice to the collector who in turn is enjoined to cause it to be served on the landlord named in the notice. Similarly, where the holding is purchased in execution of a decree, the Court is enjoined to requite the purchaser to file a notice with particulars and to deposit fees for service of notice before confirming the sate and to transmit the notice to the Collector for service on the landlord after confirmation. There are similar provisions relating to bequests and foreclosure in mortgage suits. These provisions appear to prove clearly that the point of time at which the transfer becomes effective is registration in the case of a private sale and confirmation in the case of a court-sale in the same manner as under the general law. If that be so, I can see no reason for thinking that the registration or confirmation makes the transfer operative only as between the transferee, but that the title must remain in suspense so far as the landlord is concerned until he receives the actual notice. To have this effect, it would be necessary to construe the provisions relating to the service of notice as a condition precedent for the vesting of the title in the transferee and yet confine such construction to the operativeness of the transfer as against the landlord, but not as against the transferor. Looking merely at the language of the two Sections 30-A and 31, I am unable to find any justification for any such anomalous construction. The provisions in Schedule 1 relating to the filing of notices and payment of fees before registration or confirmation and those relating to the service of notice after registration or confirmation may no doubt be mandatory in one sense, that is, in the sense that their violation must have some legal consequences, But it is quite a different thing to say that they are' conditions precedent for the vesting of the title in the transferee or that they are enough to bring about the vesting of the title in two different ways at two different stages; one as against the transferor and the other as against the landlord. It is in dealing with the analogous wording of the corresponding section relating to the transfer of tenures and in repelling a similar (though not exactly the same) contention that the Privy Council in Jitendra Nath v. Manmohan, A. I R. (17) 1930 P.C. 193 at p. 196 : (34 C. W. N. 821) said that 'their Lordships knew no principle of law which justifies such a contention.'

48. It has been urged, however, that the contrary is the proper construction if the collocation of other connected sections is taken and the previous state of law is considered. I have no doubt that reference to previous law is a valuable guide as laid down in Abdur Rahim v. Abu Mahomed Barkat Ali, 55 I. A. 96: (A. I. R. (15) 1923 p. C. 15), but it is clear from that decision itself that the ultimate criterion i3 as to what is the meaning and effect of the language user by the amending legislation, Under the pre existing law, the occupancy holding was not freely transferable (except where there was a custom), but the consent of the landlord was a pre-requisite and that would ordinarily be given on the payment of the mutation fee. Section 31 of the Act as it stood before 1938 intervened by providing a machinery against the arbitrary refusal of the consent by the landlord and as against the demand of exorbitant mutation fees, but left matter untouched so far as permanently settled estates were concerned. All this has been completely changed and the new Schedule 0 (a) provides that all occupancy holdings shall be transferable carrying with it the occupancy right and other appurtenant rights. It has been pointed out that this section does not say as does the corresponding Schedule 2 relating to the transfer of permanent tenures that it shall be capable of being transferred 'in the same manner and to the same extent as other immovable property', but that it only says that it shall be transferable 'without the landlord's consent and without any payment of fee to him.' It has been suggested that the difference in this language is indicative of the fact that the transfer was not intended to bring about the same results, but was intended to be subject to certain further limitations which must be gathered from Schedule 1. It appears to me, with respect, that the use of the phrase 'without the landlord's consent and without payment of any fee to him' merely meant to emphasize the fact that the pre-existing fetter on free transferability were intended to be completely wiped out. It cannot be taken to suggest that any farther limitation was intended to be placed. An argument has been strenuously advanced at the bar that while the mutation fees and consent were abolished, a small process fee and service of notice were intended to be substituted and that inasmuch as the transfer wag not previously binding in the absence of mutation fee and consent, similarly the transfer is not binding against the landlord in the absence of payment of process fee and service of notice. This, to my mind, is whittling down the effect of the unambiguous language that has been used in the section and to say that while the Legislature intended to wipe out the consent of the landlord, it still meant to leave its trial behind. It is to be noticed that Sub-section (4) of the previous Schedule 1, in terms, said that

save as provided in this section and Sections 95 and 96, no transfer of an occupancy holding or portion of a holding otherwise by succession or by sale in execution of a decree for arrears of rent shall be valid unless and until the landlord has consented thereto.'

If the Legislature merely meant to substitute notice for consent, it would similarly have said that the transfer under Schedule 0-A is not binding until notice has been received. In this context, it appears to me that the provisions of the amendment Act of 1938 relating to pre-amendment transfers, viz., those contained in Schedule 1 B, are very significant. My learned brother Narasimham J. has been inclined to think that that section supports the conclusion that a transfer under Schedule 1 also is not binding against the landlord until notice is received. It appears to me, with respect, that it confirms exactly the opposite conclusion. Section 31-B validates preamendment transfers to a limited extent. It protects the transferee from liability to ejectment but continues his liability for payment of mutation fee and prescribes a period of limitation for recovery thereof. It recognizes that the effect of validating the transfer even to that limited extent is to render the transferee a necessary party for sale of the holding in satisfaction of the decree for arrears of rent and provides a machinery therefor by the 'explanation' to the section and by Sub-section (2) casts upon the transferee the obligation in giving notice of transfer by registered post in order that he may not be affected by proceedings to which he is not a party. To my mind from the absence of such a provision in Schedule 1 the implication is obvious that in the case of other transfers governed by Schedule 0 A giving notice of the transfer is not a condition precedent to the operativeness of the normal requirement as to the transferee being a necessary party to the proceedings by which he is to be bound. It has been urged by learned counsel for respondent that the new Schedule 1-A, Sub-sections (1) and (2) clearly indicate that the knowledge of the landlord is a prerequisite for the working of that section and it would, therefore, follow that service of notice on him is essential. It appears to me that the sub-sections of this section cannot be taken to imply what they do not in terms say that service of notice is a condition precedent for the binding character of such transfers on the landlord. The argument based on the wording of Sub-sections (1) and (2) of Schedule 1-A recognises that they deal only with transfer of a portion or a share and not of the whole of the holding. It would be far-fetched to extend the construction by implication said to arise from the language of Schedule 1-A to the case of transfer of the entirety of a holding. It appears to me that Schedule 1-A has only to do with the distribution of the rent; while the right of transfer of a portion or share has been recognised in unrestricted terms carrying with it the right of sub dividing the holding as the tenant may choose. The Legislature was only anxious to protect the interests of the landlord in so far as the distribution of the rent is concerned. In the case of a transfer of an undivided share or portion by metes and bounds, the rent was to remain joint and in the case of transfer of a portion by metes and bounds the transferor and the transferee were given the right to distribute the rent between themselves subject to the right of the landlord to challenge the same by an application before the Collector in time. Knowledge of the landlord is undoubtedly presumed and how Schedule 1A, sub-a. (2) is to be worked in the absence of such knowledge may be a question for consideration when it arises, but that cannot be a reason for importing such knowledge consequent on the notice as a condition precedent to the binding character of the transfer not merely for the distribution of the rent with which the section deals, but for the operativeness of the transfer itself as against the landlord about which it has nothing to say. Some stress has been laid upon the use of the phrase 'shall be considered as joint tenants by the landlord' in Schedule 1A, Sub-section (1). This appears to me only to emphasize that while the tenant has no right to distribute the rent when he Bella an undivided share or portion, the landlord cannot refuse to recognize the transfer of such undivided share, but must treat him as a joint tenant. The phrase 'shall be considered' cannot be construed in this context too literally. For instance, nobody would suggest that it is not open to the landlord to agree to the distribution of rent in such a case, but that the landlord is bound to treat them only as joint tenants for all time and cannot if he chooses agree to the splitting up of the joint tenancy.

49. My learned brother Narasimham J. is inclined to think that both under the common lav of the country as well as under the statutory tenancy law prior to the amendment of 1938, the giving of notice to the landlord was a condition precedent to the binding character of the transfer against the landlord in cases where by custom or otherwise the holding was transferable without his consent, and that the only effect of the 1938 amendment was to take away the requirement of consent where it was previously necessary, but not to touch the requirement as to giving of the notice, I must confess with respect that I have not been persuaded by this argument. The only basis for the view that under the common law the giving of notice was necessary to make the transfer binding on the landlord is the dictum in Panye Chunder v. Hurchunder, 10 Cal. 496, but that case itself was one relating to the alienation of a tenure and the decision in that case was based on a specific provision of the then Bengal Tenancy Act of 1869, namely, Schedule 6, which expressly imposed a duty of giving notice to the landlord upon all transferees of tenures to which the section applied. My learned brother has also referred to the recognition of custom of trans. ferability. In Jagan Prosad v. Posun Sahoo, 8 C. W. N. 172, their Lordships were considering whether the evidence of transfers without consent in other pattis can be used as proof of the custom relating to the partti of the particular landlord. In negativing it, their Lordships say:

'The essence of a usage of transferability is that transfers made to the knowledge of but without consent of the landlord are valid and must be recognised by him'

I understand this passage in the context only to mean that instances of transfer to constitute proof of usage must be transfers which have in fact been recognised as a matter of course by the landlord though he did not consent to them. There was no question in the case as to whether or not the landlord was bound to recognize a particular transfer on knowing about it, after the usage itself has been established. I do not understand these cases to lay down that a landlord was not bound to recognize a transfer until he has notice of it, but that the custom of transferability without consent is made out by and validates only transfers known to the landlord. This is dear from the case in Peary Mohan v. Joti Kumar, 11 C. W. n. 83. That is perfectly Intelligible since a custom to be recognised by the Court must be reasonable. But transferability conferred by statute cannot be judged on that footing and must be gathered from the language used. It is also 'true that certain decisions have held that the principle underlying Schedule 08, Sub-section (j), T. P. Act is also applicable to agricultural leases. That, however, does not appear to me to help the present discussion.. The question that arose in those cases was whether or not the transferor tenant could absolve himself from the liability from futurerent by the mere transfer itself, and it was held' that he could not, in view of the fact that the transferor was liable to the landlord by privity of contract. Such a line of reasoning is not normally applicable to the case of an occupancy raiyat, who, it seems to me, more often holds' by privity of estate and not by privity of contract. It would also appear from the decisions in Saradindu Mukherjee v. Kunja Kamini, A. I. R..(29) 1942 Cal. 514 : (202 I. C. 663) that the principle of Schedule 08 (j) does not apply to a case where the incidents relating to the assignment or transfer of the tenancy are provided for by the tenancy legislation itself as in the case of transfer of permanent tenures under the Bengal Tenancy Act. In any case, this does not show that so far as the transferee is concerned, his liability to the landlord depends on his giving notice. Neither Schedule 08 (j), T. P. Act, nor Schedule 3, Bengal Tenancy Act 1885 which have been referred to in the discussion, show that the transferee's liability does not commence from the date of the transfer or that it arises only when a notice has been given or the landlord has knowledge. Indeed, they clearly seem to imply the contrary. Section 83, Orissa Tenancy Act, prior to the amendment of 1938 was as follows :

'When an occupancy raiyat in a permanently settled estate transfers his holding without the consent of the landlord, the transferor and the transferee shall be jointly and severally liable to the landlord for arrear of rent falling due after the transfer.'

It would appear from this section that in respect of transfers falling within its scope at the time, the transferee's liability would commence from the date of the transfer itself and not from the date when the landlord gets notice or has knowledge of the transfer. This implies, if at all, that the reciprocal liability of the landlord vis s-vis the transferee, viz., his obligation to recognize him and treat it as binding arose from the date of the transfer itself and did not depend on any independent notice after transfer. It is significant that by the amendment of 1938 this old Schedule 3 relating to future arrears of transferable holdings in permanently settled estates has been omitted' and fresh section dealing only with past arrears, and applicable to all transfers within temporarily or permanently settled estates has been substituted. This substitution seems to me to be an indication of the legislative intention that the transferor-tenant was not to be liable for future tents at all from the date of the transfer and the transferee was to be liable for past and future arrears-notice or no notice. The position, therefore, as I understand, was this. There probably was some common law principle that a transferes of a tenancy must give notice to the landlord before he could get the benefit of the tenancy as stated in Panye Chunder v. Hurchunder, I. L. R. 10 Cal. 496 but this became academic when landlords grew sufficiently powerful to obliterate free transferability of tenancy rights and were able to impose their consent as a condition precedent. The matter then rested either with statute or custom. Custom recognized the validity only of transfers to the knowledge of the landlord. See Jagan Prosad v. Posun Sahoo, 8 Cal. W. N. 172 and for the rest consent was a pre-requisite except when statute purported to regulate the same. That attempt at regulation was first made in Orissa in 1913, which retained the theory that consent was a pre requisite, but provided for a statutory mode of obtaining that consent from an unreasonable landlord. Thus between 1913 and 1938 the field relating to transfers of tenancy right in Orissa was partly occupied by statute and partly by custom, and the particular provisions relating to the validity of such transfers in both the cases were such that notice to the landlord was necessarily implied. Notice was not something in addition to the requisites for validity of the transfer and did not have any separate existence as a prerequisite to render it binding as against the landlord. All that has now been changed, and the field is in its entirety occupied by statute. The requisites for validity of the transfer have themselves been altered and I do not think it permissible to hold that the implications of the previous law continue unless the same can be reasonably derived from the language of the new statute itself. I am, therefore, not persuaded by the argument that prior to 1938, there was any well-established 'principle recognised by the Orissa Tenancy Act to the effect that notice was an independent pre-requisite for the binding character of the transfer of a transferable holding and that therefore it could be argued that pre requisite was left untouched.

50. My learned brother Narasimham J. has noticed the case in Babar Ali v. Krishnamanini Dassi, 26 Cal. 603 : (3 C. W. N. 531), where it has been held that:

'As regards court-auction sale of a permanent tenure which was confirmed without the payment of the prescribed landlord's fee and in disregard of the provisions of Sections 12 and 13, Bengal Tenancy Act, the sale itself was invalid.'

It would appear that subsequent to that decision, the legislature intervened by passing the Bengal

Tenancy Validation Act, 1903 (Bengal Act (I [1] of 1903) which in terms enacted that the nonpayment of the fee should not be held to invalidate the transfer. It has been suggested that; since there is no such specific provision in the Orissa Act, the non-compliance with any of the requirements of Sub-sections (2) to (6) of Schedule 1 may have the effect of invalidating the transfer in the light of the decision in Babar Ali v. Krishnamanini Dassi, 26 Cal. 603 : (3 C. W. N. 58l). This, however, does not seem to follow. On the very language of Sub-sections (2) to (6) of Schedule 1, nonpayment of process fee or not filing of notices for service appear to stand on a different footing' from the non. service of notice. If the requirement as to payment of process-fee and filing of notices are not complied with, the Registrar or the Court are specifically prohibited from completing the title. But the service of notice is a duty cast on the officers after the formal completion of the title and, the disregard of the statutory prohibition before completion of title may well be held as was done in Babar Ali v. Krishnamanini Dassi, 26 Cal. 603 : (3 C. W. N. 531), to invalidate the title itself while a dereliction of duty cast on the public officers after completion of title cannot by itself be said to invalidate the title. Indeed, even in the former contingency the case in Chandra Sekhar v. Jagannath, A. I. R. (32) 1945 Pat. 313 : (24 pat. 148) has held that the title is completed by registration or confirmation, even though it was in disregard of the statutory prohibition. That, however, is a question which does not arise for decision in this case. All that is sufficient to say in this context is that failure to give notice after registration or confirmation cannot be said to stand on the same footing.

51. It appears to me, therefore, that taking all the amending sections together and having regard to the pre-existing state of law, it would not be reasonable to import into Schedule 1 service of notice of transfer on the landlord or the land, lord's knowledge of the transfer as a condition precedent to the vesting of the title in the trans feree and to the binding character of the transfer as against the landlord.

52. As has been pointed out in the judgment of my learned brother Panigrahi J., there is quite a large catena of decisions of high authority starting from Kristo Bulluv v. Kristolal Singh, 16 Cal. 642 which was approved in Jitendra Nath v. Manmohan, A. I. R. (17) 1930 P. C. 193 : (34 C. W. N. 821) construing the analogous section relating to the transfer of permanent tenures in the manner in which Panigrahi J. and myself ate inclined to construe. It has been urged that the law relating to the transferability of permanent tenures has always been different and that therefore different considerations must apply. It has also been pointed out that almost every one of those decisions while saying that the binding character of the transfer on the landlord is not dependent on the payment of the fee or service of the notice, also mentioned that on the facts of those particular cases, the landlord had knowledge or must be taken to have knowledge. It has, therefore, been urged that those decisions cannot be taken as a guide for the construction of Section 81, Oriasa Tenancy Act. It appears to me, however, that when the Legislature adopted almost similar language and machinery in Schedule 1, Orissa Tenancy Act, relating to occupancy holding as in Sections 12 and 13. Bengal Tenancy Act relating to permanent tenures the primi facie implication is that the Legislature did so with fall know ledge of the judicial interpretation that the language of those sections had received and was prepared for the similar language used in Schedule 1 being construed in the same manner. See Mersey Docks v. Cameron, (1864-65) 11 H. L.C. 448 : (145 B. E. 255) and Isan Chandra v. Saftulla Sikdar, A. I. R. (9) 1922 Cal. 331 at P. 333 : (68 I. C. 219). The reference to knowledge in all such cases is easily explicable on the ground that what was intended to be obviated thereby was the likelihood of the applicability of the theory of representation on the facts of a particular matter with which I shall deal presently.

53. It has been very strenuously argued that this view would result in considerable hardship to the landlords and that it will encourage fraudulent transfers by defaulting tenants almost on the eve of rent sales. It is also said that this view will be contrary to what has bean accepted by the Bench and the Bar all along as having been the correct legal position, namely, that a decree in execution sale as against the tenant recorded in the landlord's registry is valid to pass the holding itself when the transferee of whose transfer the landlord was not aware is not made a party. These considerations even if correct are matters for hesitation and more anxious consideration, but cannot ultimately be the prevailing factors for decision if otherwise the construction of the section is reasonably clear on the language. No pra-esisting reported decision relating to the construction of Schedule 1. A, Orissa Tenancy Act, has been brought to our notice excepting, as already stated, Giridhari Mohanty v. Abdul Khan, I. L. R. 1960 Cut. 195 : (A I. R. (38) 1951 Orissa 41). In that case the particular question with which we are dealing, was not before the Court. There are no doubt some observations which may be taken to indicate the contrary view, but his Lordship the Chief Justice himself at p. 206 of the report appears to have summarised the position when-he stated :

'So is a transfer by an occupancy tenant to which his landlord's consent is implicit by virtue of the statute as soon as its conditions for giving notice to him are fulfilled.'

This seems to imply not that the notice should have been served, but that the pre-requisite for the issue of notice, namely, the filing of notices and the deposit of the fees should have been complied with. Indeed, the schema of Schedule 1 as amended seems to me, not that notice has been substituted for consent and knowledge is essential or that it is only on the receipt of notice or on obtaining knowledge that the transfer becomes binding on the landlord, but that the transfer was intended to become absolute on registration or confirmation and that a dependable machinery for issue of notice to the landlord was provided by means of public agencies by insisting on registration in every case of private sale and that the transferor and the transferee were to be penalised only by refusal of the registration or confirmation if they failed to provide facilities for service of notice, and not in any other way. The Legislature apparently contemplated that the public machinery provided would work effectively and promptly and that service on the landlord and his knowledge of the transfer would be a matter of course. It did not, therefore, provide for the consequences of the failure of the machinery. As to the supposed hardship of the landlord or the scope for the commission of frauds by defaulting tenants, I am not satisfied that it is likely to be so serious as has been represented to us to be, especially since a sale in execution of a rent-decree must be preceded by attachment under Sections 216 and 217 of the Act, and fraudulent transfers prior thereto are not likely to be numerous or common; but if the hardship resulting from what appears to me to follow from a plain reading of the amending sections is really such as is said to be, the remedy rests with the Government in tightening up the statutory machinery which the Legislature provided for the service of notice or by the Legislature itself intervening by a clear provision for the effect of non-service of notice. It is not without some significance that as a fact the proceedings of the Orissa Legislature when the Bill relating to the amendment of 1933 was on the anvil show that a specific-non-official amendment providing for the giving of notice and the effect thereof on the lines of the analogous provisions of the Madras Estates Land Act was moved, bat not accepted. Sea Orissa Legislative Assembly Debates 1938, p. 1841 and p. 1866).

54. The contrary view strenuously urged on the other side appears to me to lead to much greater anomaly and hardship, Such a view would result in keeping the transferor-tenant liable for all future arrears of rent even though his liability for rent was not based on any con. tract, but only on the holding of the land; while as already pointed out it is clearly implied by the new Schedule 3 that there was to be no continuing liability of the transferor for future arrears. Any continuing liability of the transfer for future arrears would be in the nature of a fetter on his right of transfer. I cannot imagine that the Legislature ever intended that while as a result of the transfer the transferee's liability for rent should arise at once and also should extend to past arrears, his title to the land should be precarious and liable to be defeated by proceedings to which he was not a party, whether such proceedings be in respect of further or past arrears, and that the transferor tenant should be hampered in the freedom of his transfer by continuance of such liability dependant on the failure of the machinery for giving notice or the default of the transferee in not punctually paying up his rent are circumstances for which he is not responsible.

55. It appears to me that the difference in the two views propounded in this case arises from the difference in the approach to the crucial question involved, namely, whether the right of the occupancy raiyat in the land is to be treated as an interest in the land or as being analogous to a contractual right. If it is an interest in the land itself, it is more in consonance with principle that the effectiveness of transfer of such interest can have nothing to do with notice or knowledge though it may be that the landlord who has an interest in the land is in one sense affected by such transfer. If it be permissible to apply terms familiar to Madras Tenancy Law, the tenant has the Kudivaram interest in the land and the landlord has the Melvaram interest and both are in a sense co-owners in different levels of the total ownership of the land. (See Venhata Narasimha v. Kotayya, 20 Mad. 299 : (7 M L J 251).) Into such a relationship it is hardly right to import notions arising out of a contractual tenancy. In referring to this analogy, I am perfectly well aware that the conditions of the tenancy law here are different from those in Madras; but I refer to the same only for the purpose of elucidating the position that the right of an occupancy raiyat in the land is in the nature of property and that his obligations towards the landlord must be founded, as far as possible, on the terms of the statute which purport to govern the same.

56. From the above discussion, it follows in my opinion that the transfer of an occupancy right under Schedule 1 of the amended Orissa Tenancy Act is binding as much against the landlord as against the transferor from the date of its registration or confirmation and that, therefore, he would normally be a necessary party to any proceedings taken to bind his interest in the holding. This, however, does net necessarily conclude the question which arises in such cases, namely, as to what is the effect of proceedings taken as against the original recorded tenant alone without making the transferee a party.

57. While it is true as pointed out at the outset that no person's title can be affected by proceedings to which he is not a party, that principle itself has been subjected to an important exception, namely, that the interest of a person not a party to the proceeding may be fully bound by the result of the proceedings if on the facts and circumstances of the particular case, the party on record may be held to represent fully the person having the interest and not on the record. The well-known Privy Council cases in Malkarjun v. Narhari, 27 I. A. 216 : (25 Bom. 337 P. C.) and Khiarajmal v. Daim, 32 I. A. 23 : (32 Cal 296 P. C.) - clearly recognise both the main rule and the exception by way of principle of representation. I have had occasion to discuss the principal of representation under the general law with reference to the limited question of the binding character, against the true legal representative of proceedings bona fide taken against the wrong representative. (See Sarat Chandra Deb v. Bichitrananda Sahu, I; L. R. (1950) Cut. 413 at P 434 445). I find on a close examination of the law on the subject that this principle of representation has been held to apply also to rentdeccees and execution proceedings for realisation of rent. Thus, for instance, in Nitayi Behari v. Hari Gobinda, 26 Cal. 677, two of the learned Judges, Hill and Banerjee JJ., have extended the principle of representation laid down by their Lordships of the Privy Council in Bissessur Lall v. Luchmessur Singh, 6 I. A. 233 : (5 C. L. R 477 P. C.), to the facts of that case and held that a registered tenant represented the transferee who was not a party to the proceedings and that the proceedings against the registered tenant bound the transferee. The case in Afraz Mollah v. Kulsumannessa Bibee, 10 C. W. N. 176; (4 C. L. J. 68), recognizes the applicability of the principle to rent proceedings and decides on the facts of that case that there was no representation (see the judgment of Mukherjee J.). The case in Jagat Tara Dassya v. Daulati Bewa, 13 C. W. N. 1110 : (2 I. C. 695), discusses the principle of representation and says that the fact that the party to the proceeding is only the registered tenant is not everything and the principle was laid down that it is only one of the items of evidence upon which the question is to be decided as to whether he fully represents the holding so as to bind a person not a party to it. The case in Gagan Sheikh v. Abejan, 14 C. L. J. 180: (10 I. C.116), also recognises and discusses the rule of representation of the holding by some of the heirs of the original tenant on behalf of all the persona interested and says it is essentially a question of fact. Profulla Kumar v. Salimullah, 23 C. W. N. 690: (A.I.R. (6) 1919 Cal. 62) is another case in which the principle of representation was applied and the sale as against the recorded tenants was held binding as against persons not recorded. In Faridpur Loan Office Ltd. v. Nirode Krishna Bay, A, I R. (16) 1929 Cal. 452: (56 Cal. 462), it was clearly laid down as follows:

'Now the ordinary law is that where a landlord sues Borne only of the co-tenants of a tenure obtains a decree, and purchases 'the tenure in pursuance of the decree, all that he obtains by the purchase is the interest of the defendant judgment-debtors. But the whale tenure will pass under the auction-purchase pursuant to the decree if the facts warrant a finding that the tenants who were impleaded in the circumstances represented the whole estate.'

Rameshchandra v. Dinanath Mestary, A. I. R. (23) 1936 Cal. 178 : (63 Cal. 846) also appears to adopt this view. In Girdhari mohnty v. Abdul Khan, I. L. R. (1960) Cut. 195 at p. 199: (A, I. R. (38) 1951 Orisa 41), his Lordship the Chief Justice has said:

'At the date of the sale the judgment-debtor in the suit was no longer the raiyat and was not representing the holding.'

(The underlining (here italicised) is mine). This clearly shows that in his Lordship's view the principle of representation is available in such a case. That principle, as has been pointed out by me in Udayanath Mohapatra v. Rahas Pandiani, I. L. R. (1950) Cut. 410 at p. 411: (A. I. R. (38) 1351 Orissa 10) is based on the fact that the interests of the person wrongly on the record and of the person really interested, though not a party on the record, are identical in respect of all matters arising on the proceeding in question and that the action of the creditor in failing to implead the person really interested was bona fide. These are the necessary criteria though not always sufficient by themselves to bring about the applicability of the principle of representation which must ultimately depend on the applicability of the equitable doctrine to the facts of each particular ease. In considering whether the facts of any particular case justify a conclusion as to the binding character of rent proceedings against the holding itself, though every person interested therein is not a party, the corresponding decisions under the Bengal Tenancy Act prior to the enactment of the statutory representation under Schedule 46A, may be a useful guide. But it is necessary to caution that so far as any such prior decisions relating to non-transferable holdings are concerned, the cases mix up the question of representation with; the question of want of title as against the landlord on account of the absence of his consent to the transfer. It is unnecessary, however, to pursue this aspect further to attempt to lay down the conditions or limits for the applicability of the doctrine of representation in the rent proceedings except to say that the non-observance of the statutory requirements of Schedule 1, Orissa Tenancy Act, which results' in the landlord having no notice and the default in non-payment of rent which brings about the. proceedings for recovery of rent, may on the facts and circumstances of a particular case, afford sufficient protection to the landlord or the auction-purchaser, on invoking the principle of representation. The present case has unfortunately not been presented from that aspect and the requisite facts have not been elucidated on that footing. I am also not prepared to embark upon a larger discussion of the limits of this principle of representation without its having been debated at the bar before us in this case. It is enough to state that I am satisfied that the principle is available and can be invoked in proper oases. I may add, however, that in a matter so important as the effect of rent proceedings, it is rather unfortunate that the applicability and the limits of the principle of representation should have been left unprovided for by the Legislature. This has been made up to some extent in Bengal by the enactment of Schedule 46-A.

58. In the result, therefore, I agree that the appeal should be allowed with costs throughout.

59. In accordance wife the majority view the order of the Court is that the second appeal is allowed with costs through out.


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