1. The suits out of which these three appeals arise were instituted by the pltf. resp., who is the proprietor of Darpan Estate, a permanently settled estate in the Dist. of Cuttack, for recovery of mutation fees from the applts. who are transferees of ryoti holdings within the estate. The suits were instituted in the Ct. of the Rent Suit Officer in Rent suits Nos. 729 & 786 of 1941 & 1942 (out of which the S. A. Nos.. 108 & 138 of 1944 arise) & were tried with a batch of 68 suits. Rent Suit no. 415 of 1943 out of which the S. A. No. 142 of 1944 arises was tried along with a batch of 111 suits. All these suits were instituted by the proprietor resp. under Schedule 1-B, Orissa Tenancy Act, for the recovery of mutation fees.
2. The pltf's case is that the applts in S. A. 108 & S. A, 138 of 1944, who constitute one family & who are common in both the appeals, obtained by registered sale deeds, dated 5-10-1904 & 15-9-1922 respectively, certain occupancy holdings from the recorded ryots & that the applts. in S. A. 142/44, who purchased on 10-9-23 became liable under law & custom or usage to pay transfer fee at the rate of 25% of the consideration money. It is further alleged that the pltf. came to know of the transfers & recognized them on 19-8-41 by mutating the names of the applts in his records, & hence his claim to recover 25% of the consideration money as mutation fee, together with interest & costs of the suit. The defts. denied the alleged custom or usage entitling the pltf, to recover mutation fee at 25% of the consideration money, or at any other rate. They further averred that Killa Darpan being a permanently, settled estate, was expressly excluded from the operation of Schedule 1, Orisaa Tenancy Act (old) & the new Section 31-B of the Act was not applicable to the case. The applts specific case was that the Ct. of Wards, while managing the estate of the pltf, used to recover at the rate of Re. 1 for each transfer irrespective of the consideration, & they are willing to pay at this rate.
3. The Rent Suit Officer, after a careful analysis, of the evidence & in a well reasoned judgment, held that there existed in fact a custom or usage in the pltf's estate which enabled him to charge 25% of the consideration money for registering the transfer of occupancy holdings, that for some years when the estate was under the management of the Ct. of Wards the transfer fee was levied at a flat rate of He. 1 under a mistaken impression, but that in the year 1914 this mistake was rectified by a proceeding of the Board of Revenue & that since that date collection of mutation fee at 25% of the consideration money was enforced. He there. fore found that the pltf. had succeeded in establishing the usage & granted a decree to him in terms of the plaint.
4. The learned Dist. J. who heard the appeals against the decrees Of the Rent Suit Officer, agreed with the reasoning & findings of the lower Ct & confirmed the decrees passed by the Rent Ct.
5. In second appeal, Mr. Sen Gupta appearing for the applts. has confined his arguments to two points, viz: (1) That the evidence on the record does not justify the inference that a usage had grown up &, (2) That S.-31B, Orissa Tenancy Act, has no application to the present case as no fee was lawfully pay able at the date of the transfer. On the other side, it is pointed out that transfer of occupancy holdings was well recognized & never depended upon the consent of the proprietor. It is also urged that in the neighbouring estates, as well as in the temporarily settled areas, the levy of a transfer fee at 25% of the consideration money had been recognized as a well-established custom.
6. To support a usage it is not necessary to prove that it is ancient or uniform. Usage may also be in course of growth, It is enough if it appears to be so well known & acquiesced in that it may be reasonably be presumed to have been tacitly accepted by the parties to the transfer. The two essential ingredients are : that it should be well known in the locality & that it should have been acquiesced in. As was laid down in B. Dalglish v. Gwguffer Hussein 23 Cal. 427 usage includes what the people are in the habit of doing in a particular place & evidence as to the transferability & the other incidents of similar tenures in adjoining villages is admissible as evidence of such usage. If it be one regularly & ordinarily practised by the inhabitants of the place where the tenure exists there will be usage. What is necessary to be proved is that such transfers have been made with the knowledge & without the consent of the landlord & that no successful objection to such transfer has made by the landlord. If, therefore, the pltf. succeeds in proving that there was a usage whereby 25% of the consideration money was paid on the transfer of a holding, Schedule 37, Orissa Tenancy Act, would give him the right to enforce the payment of such fee. Reliance was placed on para. 321 of the Settlement Report prepared by Mr. Maddox in which, after tracing the growth of transferability of occupancy holdings, he says ;
'In Cuttack thani rights appear to be commonly sold without the previous sanction of the proprietor & the latter appears in most parts to invariably recognise the new tenant on payment of the customary mutation., fees.'
He further says:
'In conclusion we may say thani is now-a-days transferred but that the zamindar does not record the transferee in his sherista as thani rayot without a fee.'
This was recorded in 1900.
7. The Survey & Settlement Report of Darpan Estate was undertaken at about the same period & the Final Report on the Settlement of Killa Darpan, prepared in 1901 says:
'These at least show that transfers are allowed in the estate for the above classes of tenures except under Chandna which is rare.'
The Report also gives instance of the transfer fee payable to the proprietor varying from 10 to 25% of the purchase money according to the; nature of the tenure when mutation is applied for. The average rate of money paid per acre for selling occupancy holdings, as worked out from 20 instances of recorded transfers, is shown, to be Rs. 33, & against this rate the remark is made that
'this rate does not seem to be actual. It is usually higher but shown lower in the document for lessening the proprietor's quarter (of transfer fee).'
Mr. James (as he then was) in his Final Report on the Revisional Settlement of Orissa (1906 to 1912) also notes that sales of holding had. become common after the Settlement operations undertaken by Mr. Maddox had been completed. He says :
'It is probable that the custom of free transfer would, in many parts, have become established if the Revisional Settlement had not come & brought the question into prominence.'
Mr. Macpherson in his Report of the year 1908 wrote on the proposals to allow transfers subject to the payment to the zamindar of a salami of 25% of the purchase money & his opinion is quoted in para. 72 of Mr. James' Report:
'Had there been no revision or maintenance of reoords in Orissa before the next land-revenue settlement the rayots would have gone on quietly transferring their lands &, save in isolated cases landlords would have raised no objection & would have gone on quietly receiving the rents from the transferees with or without the express recognition of the latter..... This quiet evolution of custom has been checked by revisional operations & we find that landlords who had winked at or taken no steps to interfere with the numerous transfers that have occurred in the past ten years are now demanding the most exhorbitant price for the purchase of their consent,'
Mr. Dalziel, the Settlement Officer, reporting on the Revisional Settlement of 1922-32 also remarks that the status of the occupancy rayot in the permanently settled estates was much the same as in the temporarily settled areas & that a mutation fee of 25% was being charged in case of transfer of occupancy holdings. It cannot, therefore, be seriously disputed that a custom had grown up throughout Orissa, by which occupancy holdings were freely transferred without the consent of the landlord but that, on, recognition of such transfer, a proprietor became entitled to levy a transfer fee at the rate of 25% of the purchase-money. In this case the pltf. produced his mutation register maintained in the estate showing that hundreds of applns. were being made to the proprietor & that in the large majority of cases mutation was allowed on receipt of 25% of the consideration money. We see, therefore, no reason to differ from the findings of the Ota. below that the evidence on the record amply justifies the inference that the proprietor was collecting at the rate of 25% of the purchase money at least from the year 1906, with an interruption of only eight years, when, under the orders of the Ct. of Wards, a flat rate of Re. 1 was being charged.
8. Exhibit 31 dated 12-12-1914 & Ex. 32 dated 124 1915, show that the Ct. of Wards finally decided to levy mutation fee at 25% of the purchase money in all cases of transfer by gift or sale, & from that date onwards, according to the evidence, 25% of the consideration money is being charged. There is, therefore, no force in Mr. Sen Gupta's contention that the levy was either not uniform or that the practice had not matured into usage. I have no doubt in my mind that in so far as the period subsequent to the year 1915 is concerned the Ct. of Wards introduced a uniform rule of levying the mutation fee at 26% of the purchase money & it does not appear that this was objected to by the rayots on that payment was made at any other rate.
9. Apart from any consideration of gradual growth of practice maturing into an usage the order of the Ct. of Wards is definite evidence of a rule that was enforced & was acquiesced in by the people of the locality. This evidence, to my mind, is clear, definite & precise & rules out all considerations based on mere speculation. The contention of Mr. Sen' Gupta has, therefore, been rightly negatived.
10. The next contention raised on behalf of the applts. raises a very important point, but I entertain no doubts about it. The argument is developed on the basis of the reasoning adopted in Gaganbehari Das v. Sarabhuj, 13 out L. T. p. 1 : (A. I. R (34) 1947 Pat. 412), where the applicability of Schedule 1-B, Orisaa Tenancy Act to a transferee by an execution sale was considered. In that case the pltf's suit was for recovery of mutation fee from the defts. who were the auction-purehasers of an occupancy holding in a temporarily settled area. The pltfs. based their claim on Schedule 1- B read with Schedule 50, Orissa Tenancy Act; and the decision in that case turned round the interpretation of the words 'fees lawfully payable by him at the date of the transfer' occurring in Schedule 1 B. Section 31, as it stood before the amendment, provided a machinery for compelling the proprietor to recognize a transfer by private sale. Section 31 (4) provided that:
'save as provided in that section & in Sections 95 & 96 no transfer of an occupancy holding or a portion of the holding, otherwise than by succession or by a sale in execution of a decree for arrears of rent shall be valid against the landlord of the holding unless & until he has consented thereto.'
And Sub-section (5) of Schedule 1 laid down:
'Nothing in this section shall apply to the transfer of an occupancy holding or a portion of a holding in a permanently settled estate.'
The effect of Schedule 1 (4) is that except in the cases provided in Sections 31 (1), 31-A, 95 & 96 or in the case of a transfer by succession or sale in execution of a decree for arrears of rent, no other transfer by way of an execution sale in a Civil Ct. or in execution of a money decree shall be valid unless & until the landlord has consented thereto. The effect of this is that a transferee at a sale in execution of a money decree acquires no right in the holding unless & until the landlord has consented thereto, The consent of the landlord therefore validates the transfer & until such consent has been obtained the law does not recognize the fact of the transfer so far as the landlord is concerned. Their Lord ships therefore held, in the case cited above, rightly. if I may say so with great respect, that there was no fee lawfully payable at the date of the transfer, as such fee became payable only after the transfer, on the landlord's consenting to the transfer. The fee was payable under a contract, arrived at between the parties, namely, the landlord & the transferee, on a date subsequent to the date of the transfer, & consequently Schedule 1-B had no application to that case. This case, however, has absolutely no application to the facts before us. It has to be noted that Section 31 itself is not applicable to the transfer of an occupancy holding in a permanently settled estate as Schedule 1 (5) expressly excludes its operation. There is, therefore, no question of the transfer remaining invalid 'unless & until the landlord consents thereto', in the case of a transfer whether by private sale or by execution sale in a permanently settled estate. The validity or otherwise of such transfer depends on Section 237, Orissa Tenancy Act, which says:
'Nothing in this Act shall affect any usage or customary right not inconsistent with or net expressly or by necessary implication modified or abolished by its provisions.'
Illustration (2) to the section, as it stood before the introduction of the Orissa Tenancy Amendment Act of 1938 runs as follows:
'The usage under which a rayot in a permanently settled estate is entitled to sell his holding without the consent of his landlord is not inconsistent with & is not expressly or by necessary implication modified or abolished by, the provisions of the Act. That usage, accordingly, where it may exist, will not be affected by this Act.'
If, therefore, there was a custom in this estate that an occupancy holding could be transferred without the consent of the landlord, the liability to pay a mutation fee would be an incident of the transfer & would not be dependent upon the subsequent consent of the landlord validating the transfer.
11. I have already shown by quotations from the Settlement Reports that the custom of levying 25% of the consideration money had been well-recognized in permanently-settled estates & that such fee was payable on the landlord effecting a change in his register. No single instance has been brought to our notice of a proprietor ejecting a rayot on the ground that he has transferred his holding by private sale or gift. I have no doubts in my mind that the validity of such transfer did not at all depend upon the consent of the landlord. I may here quote the opinions recorded by some of the most experienced Settlement Officers of the District which Mr. Maddox summarises in his report, at p. 218. In the estates of Deogaon, Matkatnagar, Asureswar, Bakhrabad & Jajpur the opinion of the Settlement Officers was that the landlord's consent was not necessary at the time of the sale, but when mutation is recorded in his sherista a mutation fee is charged. Mr. Maddox adds:
'My experience is that that is freely sold & that it is only in a few parganas that the purchasers are recorded as pahi, Indeed there are many oases in which thani holdings have been sold in civil Cts. in execution of decrees & the new tenants have been perforce recognized by the zamindar. In all oases of voluntary sale, the zamindar, before recognizing the transfer, requires that all arrears of rent should be paid up in full & further demands from the vendee a rusum that may amount to l/4th of the price .... In conclusion, we may say that a thani is now-a-days transferred but that the zamindar does not reoord the transferee in hit sherista as thani rayot without a fee.'
12. Mr. Dalziel also notes the practice in the several permanently settled estates in his report & in respect of Killa Pattia he says that on the transfer of rayoti rights 25% is charged as mutation fee & the custom prevails of obtaining the consent of the landlord. In the case of Killa Bishnupur 'the transfer of land by rayoti holdings is generally allowed on payment of a mutation fee of 25% of the consideration money.' In Killa Harishpur 'transfers are invariably recognised on payment of 25% of the consideration money.' In the case of Killa Aul it is remarked that 'the landlord's consent is considered necessary for the transfer of occupancy holdings, but no case of refusal to consent is reported.' In Killa Kalkalla which adjoins the Darpan Estate the status of the rayot is not different from that in the other permanently settled areas. I am therefore unable to find in any of the permanently settled areas of the district, except in the single instance of Kanika, any case of a rayot being ejected on the ground that his holding has been transferred whether by private alienation or by sale in execution of a decree. It is also abundantly clear that the previous consent of the landlord was not necessary for the transfer & that the only right that the landlord had was to levy a transfer fee at 25% of the purchase money at the time of effecting a change in his records. I am therefore unable to accede to the contention of Mr. Sen Gupta that no fee was lawfully payable at the date of the transfer in the present case on the ground that the transfer itself was invalid, on the analogy of a sale in execution of a money decree of a holding in a temporarily settled area.
13. I may also refer, at this stage, to another decision of the Patna H. C. reported in Nilmoni Misra v. Gourmohan De, 5 Cut. L.T. 88 where it was held that Section 31-B applies to all oases of transfer, voluntary or involuntary, & that the fee, if payable at the time of the transfer, could be realised within the time prescribed under Schedule 1-B. It is not clear from the report whether this case arose in a temporarily settled estate, but Schedule 1, Orissa Tenancy Act, was considered & it was assumed that the validity of the transfer depended on the consent of the landlord. Their Lordships went to the length of laying down that even in the case of a transfer falling within Schedule 1(4) the consent of the land, lord would not be required after the passing of Schedule 1-B, The suit in that case was for ejectment of the transferee & the specific question raised in these appeals, whether any fee was lawfully payable at the date of transfer, was not considered in that case.
14. I therefore hold, agreeing with the Cts. below, that the transferee were liable to pay a fee at the date of the transfer & that such fee was lawfully payable under well-established usage.
15. There is, however, one small point yet to be disposed of. In S. A. N. 108/1944 the transfer took place on 5-10-1904. I have held that it is the admitted case of both parties that a flat rate of Re. 1 was being charged as mutation fee from 1E06 to 1914 under the orders of the Ct. of Wards & that from 1915, a fee at the rate of 25% of the purchase money was uniformly levied & collected. There is very meagre evidence of what the practice was prior to 1906. I would therefore hold that, in the absence of any positive evidence on the side of the pltf. the applts. in S. A. No. 108/1944 would be liable only to pay at the rate of Re. 1 which was the rate admittedly prevalent in 1906 & that in the other two appeals, viz., S. A. no. 188/1944 & 8. A. no. 142/1944 the applts. would be liable to pay at the rate of 25% of the consideration money, together with interest at 6% per annum from the date of recognition of the transfers by the proprietor. The pltf. resp. will also have his costs throughout.
16. Subject to the above modification, these appeals are dismissed, with coats. Hearing fee is assessed at 10 (Ten) Gold Mohurs.
J. Das, J.
17. I agree that on the evidence & the material placed in these cases before us, the usage of transferability of occupancy holdings in the permanently settled estate of Darpan, without the consent of the landlord, but subject to the payment of mutation fee at 2&% of the consideration for the transfer, has been clearly made out with reference to the period subsequent to the order of the Ct. of Wards as evidenced by Exs. 81 & 82, dated 12-4-1914 & 12-4-1915. There is no such clear evidence of usage for any period prior thereto & the pltf. can, therefore, claim mutation fee for the earlier period only the admission of the deft, that the mutation fee payable was at a flat rate of Re. 1 per kabala.
I agree accordingly with the order proposed by my learned brother.