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iswar Das Vs. Abhiram Mohanty and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal Nos. 314 and 383 of 1948
Judge
Reported inAIR1954Ori219; 20(1954)CLT515
ActsTenancy law; Orissa Tenancy Act, 1913 - Sections 31B and 31B(2); Code of Civil Procedure (CPC) , 1908 - Sections 100 to 101; Orissa Tenancy (Amendment) Act, 1938; Orissa General Clauses Act, 1937 - Sections 29
Appellantiswar Das
RespondentAbhiram Mohanty and ors.
Appellant AdvocateL.K. Dasgupta, Adv.
Respondent AdvocateB.M. Das and ;P. Misra, Advs. in S.A. No. 314 of 1948 and R. Mohanty and ;P. Misra, Advs. in S.A. No. 383 of 1948
DispositionAppeal dismissed
Cases ReferredKeshab Chandra v. Lokenath Jena
Excerpt:
.....of reducing the rent decrees to the position of mere money decrees. 7) the landlord while calling upon the plaintiff to pay the necessary mutation-fee clearly stated that the plaintiff had purchased the property by a kabala of 1931 and that he was in actual possession of the holdings since that. if such payment was not made or consent was not obtained the landlord was entitled to ignore the transfer altogether and proceed against the recorded tenant only for realisation of arrears of rent in the rent court and a decree so obtained would clearly be a rent decree. his failure to do so would have the effect of reducing the rent decree to a mere money-decree. hence, they are clearly distinguishable. it may be that he did not want to pay the mutation-fee unless the landlord actually sued..........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 proce dure, in the case of a transfer of a holding or a portion or a share thereof, whether before or after the decree the transferee may be brought on record in the proceedings in execution eitherin substitution of or in addition to the judgment-debtor, and such transferee shall, when so add ed or substituted, be treated as a judgment-debtor for all purposes of the said proceedings in execution of the decree.' the first sub-section expressly declared the right of the landlord to recover the mutation-fee law-fully payable to him within four years from.....
Judgment:

Narasimham, J.

1. The appellants in these two appeals were the defendants in two suits (O. S. No. 93 of 1945 and O. S. NO. 94 Of 1945) which were heard analogously in the Court of the Munsif of Kendrapara. The plaintiff in both the suits was one Ataniram Mohanty, the respondent in these appeals. In O. S. No. 93/45 the property in dispute consists of l.OS acres of raiyati land appertaining khata No. 246. In O. S. No. 94/45 the property in dispute consists of. 22 acres appertaining khata No. 251. These khatas originally belonged to the recorded tenants Prabalad Das, Krushna Chan-dra Das, Bairagi Das & Nabani Bewa. The plaintiff-respondent Abhiram Mohanty claimed to have purchased the property from the recorded tenants by a Kabala dated 18-9-31. He, however, did not take the necessary steps prescribed in Section 31, Orissa Tenancy Act (as it stood before the amendment of 1938) lor the purpose of obtaining the consent of the landlord to the transfer and for getting his name mutated in the landlord's sherista. Consequently, whenever he paid rent for the two khatas the landlord granted Marfatdari receipt in the name of the recorded tenants showing, however, the plaintiff as the person who actually paid the money.

In 1938, the Orissa Legislature passed the Orissa Tenancy (Amendment) Act, 1938 (Orissa Act 8 of 1938) by which old Section 31, Orissa Tenancy Act, was replaced by four new sections, namely, 30A, 31, 31A and 31B which had as their primary object the conferring of unrestricted right of transfer of occupancy holdings on raiyats and the providing of other consequential matters.

In 1941, the landlord issued notice on the plaintiff-transferee calling upon him to pay the necessary mutation-fee required by subjection (1) of Section 31-B and threatening the transferee with suit if the money was not paid. The transferee, however, did not respond to this notice. Then the landlord in 1943-44 instituted two separate suits (R. S. No. 6300 of 1943-44 and R. S. No. 6297 of 1943-44) for arrears of rent in respect of the two khatas and impleaded as defendants only the recorded tenants and completely ignored the plaintiff-transferee. In due course, the holdings were put to sale and purchased by the appellants. The property covered by O. S. No. 93/45 was purchased in a rent sale on 14-6-44 and the property covered by O. S. No. 94/45 was purchased in a rent sale held on 30-11-44.

The plaintiff thereupon instituted the suits under appeal alleging that the transfer of the holding in his favour was well-known to the landlord prior to the institution of the rent suits in question and that consequently the omission on the part of the landlord to implead him as a party in the suits had the effect of reducing the rent decrees to the position of mere money decrees. He, therefore, urged that the holdings were not properly represented before the rent Court and that consequently his right, title and interest were not affected by the rent sale. Both the Courts concurrently held that the landlord was fully aware of the transfer of the holdings in favour of the plaintiff by the recorded tenants and that the notice which the landlord himself issued to the plaintiff (ext. 7) on 26-11-41 calling upon him to pay the mutation-fee in respect of the transfer was conclusive on this question. They, therefore* hold that the holdings were not properly represented in the rent sale and that the plaintiff's interest was not affected by the sale.

2. The finding of both the Courts about the landlord's knowledge of the transfer in favour of the plaintiff is a finding of fact which is binding on me in the second appeal. The transfer had taken place as early as 1931. The transferee (the plaintilf) was regularly paying rent; but as he did not pay the necessary mutation-fee the rent-receipts were granted as Marfatdari receipts. On 26-11-41 (ext. 7) the landlord while calling upon the plaintiff to pay the necessary mutation-fee clearly stated that the plaintiff had purchased the property by a Kabala of 1931 and that he was in actual possession of the holdings since that. date. Hence, there can be no doubt about the fact that on the date of the issue of the notice (ext. 7 dated 28-11-1941) the landlord was fully aware of the transfer by the original recorded tenants in favour of the plaintiff. The question for decision, therefore, is whether three years later the landlord could obtain a valid rent-decree in a suit in which the plaintiff was not impleaded as a party.

3. Prior to 1938, the law was quite clear on the subject. Under Section 31 of the old Act no transfer of an occupancy holding was valid as against the landlord unless and until he gave his consent thereto and such consent was deemed to have been given if the necessary mutation-fee had been paid in the manner prescribed in that section. If such payment was not made or consent was not obtained the landlord was entitled to ignore the transfer altogether and proceed against the recorded tenant only for realisation of arrears of rent in the Rent Court and a decree so obtained would clearly be a rent decree.

But by the amending Act of 1938 radical change was made in the law relating to transfer of occupancy holdings. By Section 30-A(1) such holdings were made freely transferable without the consent of the landlord and without payment of any fee to him. Doubtless, the amending Act would ordinarily be prospective and would apply to transfers made after the commencement of that Act. As regards pre-amendment transfers, however, the Legislature expressly inserted Section 31-B which is as follows :

'31-B.(1)-- Notwithstanding anything contained in this Act, any transferee, who obtained a transfer of an occupancy holding or a portion or a share thereof, before the commencement of the Orissa Tenancy (Amendment) Act, 1938, shall be liable to pay the fees lawfully payable by him at the time of the transfer, within four years from the coming into force of that Act or the date of the landlord's knowledge of the transfer whichever is later, but he shall not be liable to ejectment on the ground that the landlord has not given his consent to the transfer.

(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 rent 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 Proce dure, in the case of a transfer of a holding or a portion or a share thereof, whether before or after the decree the transferee may be brought on record in the proceedings in execution eitherin substitution of or in addition to the judgment-debtor, and such transferee shall, when so add ed or substituted, be treated as a judgment-debtor for all purposes of the said proceedings in execution of the decree.'

The first sub-section expressly declared the right of the landlord to recover the mutation-fee law-fully payable to him within four years from the commencement of the amending Act or the date of his knowledge of the transfer. But at the same time that sub-section debarred his right to eject the transferee on the ground that the landlord's consent to the transfer had not been given. Subsection (2) dealt with the question of representation of the tenant in any suit for arrears of rent on the holding. It also expressly declared that the holding shall not be liable to be sold for arrears of rent unless the transferee was made a party to the proceeding in execution of the decree

'provided that the transferee has given notice of transfer by registered post to the landlord'.

Mr. Dasgupta's contention in that Sub-section (2) of Section 31-B is a self-contained provision as regards representation of occupancy holdings in rent sales and that it should be strictly construed. If the transferee fails to give notice of transfer by registered post to the landlord the latter's right to pro-ceed against the recorded tenant and ignore the transferee remained unaffected. In the present case admittedly the plaintiff did not give notice of the transfer by registered post to the landlord. Mr. Dasgupta therefore contended that as there was admittedly non-compliance with the provisions of Sub-section (2) of Section 31-B the landlord was entitled to ignore the plaintiff-transferee and obtain a valid rent-decree by impleading only the recorded tenants.

4. The whole question ultimately turns on a true construction of words

'provided that the transferee has given notice of transfer by registered post to the landlord'

occurring in the later part of Sub-section (2) of Section 31-B. If these words are construed literally Mr. Dasgupta's case is unassailable. But such literal construction would lead to absurd results. For instance, if the transferee instead of giving notice by registered post, sends it by ordinary post or personally delivers the notice to the landlord and succeeds in establishing such due service before the Court it will obviously be quibbling with the provisions of that sub-section to say that the landlord was entitled to ignore the transfer because no 'registered notice' was sent to him.

The object of giving such registered notice is clear. The landlord should be made aware of the transfer. It is primarily the duty of the transferee to inform the landlord about such transfer and the Legislature in requiring him to give notice by registered post meant to relieve him of the liability of proving in every case by other evidence that the landlord was made aware of the transfer. His responsibility would cease as soon as he sends the notice by registered post. He could then rely on the provisions of Section 29 of the Orissa General Clauses Act, and require a Court to hold that 'unless the contrary. is proved' that the notice was delivered in the ordinary course. If, however, the landlord is made aware of the transfer by other methods, the necessity of giving him, notice of the transfer by registered post becomes unnecessary. In such cases, it appears that the provision for giving him notice by registered post is merely directory and not mandatory. A clause that was specially inserted in Sub-section (2) of Section 31-B for the benefit of the transferee arid with a view to relieve him of the onerous duty of proving actual knowledge of the transfer by the landlord in every case cannot be so literally construed so as to result in his disadvantage.

Doubtless, where registered notice was not sent it would be somewhat difficult for the transferee to prove that the landlord had actual knowledge of the transfer. But in the present case that difficulty has disappeared because the landlord's notice (ext. 7) demanding mutation-fee conclusively established his knowledge. It was not a vague rumour about the transfer that had reached him at that time. His notice is categorical as regards the date of the execution of the Kabala in favour of the transferee and also as regards continuous possession of the holdings by the transferee since the date of the Kabala and his payment of rent. On the peculiar facts of this case, therefore, I would, in agreement with both the lower Courts, hold, that the omission on the part of the transferee to issue registered notice to the landlord is immaterial and that the principle of representation laid down in Sub-section (2) of Section 31-B would still apply. That is to say, the landlord was bound to implead the transferee in the rent suit which he brought in respect of the holdings after the date on which he became aware of the transfer. His failure to do so would have the effect of reducing the rent decree to a mere money-decree.

5. Mr. Dasgupta, however, relied on two Division Bench decisions of this Court in support of his contention. The first one is reported in --'Madhusudan v. Brajasundar', AIR 1949 Orissa 51 (A) and the second one is reported in -- 'Gopinath Deb Thakur v. Govind Chandra Sahu', AIR 1953 Orissa 95 (B). Doubtless, in those two decisions there are general observations to the effect that by virtue of Sub-section (2) of Section 31-B the transferee of an occupancy holding where the transfer has taken place prior to 1938 should give registered notice of the transfer to the landlord. But in those two decisions the peculiar position arising out of the knowledge of the transfer on the part of the landlord by other means was not considered at all. Hence, they are clearly distinguishable.

6. In a Special Bench decision of this Court reported in -- 'Keshab Chandra v. Lokenath Jena'. AIR 1951 Orissa 186 (C) there are some observations regarding the construction of Section 31-B which are helpful. At pages 32 and 33 of that decision I observed that the main object of s. 31-B was to validate all pre-1938 transfers and place them on the same footing as post-1938 transfers except to the limited extent, of retaining the landlord's right of realising mutation-fee in respect of the former class of transfers. I, however, pointed out that in considering whether the landlord was bound to implead the transferee in rent suits, his knowledge of the transfer was decisive and the giving of notice by registered post was only a mode of apprising him of such transfer and that it was open to a party to show in a particular case that he was made aware of the transfer by other means. It is true that the majority did not accept my view as regards post-1938 transfers. But as regards construction of Section 31-B no dissent was expressed by other Judges and in a later decision reported in 'AIR 1953 Orissa 95 at p 96 (B) Das J. (as he then was) partly relied on my construction of Section 31-B.

7. Mr. Dasgupta then urged that the conduct of the transferee in ignoring the notice (ext 7) sent to him by the landlord in 1941 and thereby allowing the holdings to be brought to sale for arrears of rent would amount to an acquiescence on his part to the representation of the holdings by the recorded tenants and that consequently the holdings were properly represented in the rent sale. In support of this argument he relied on some observations in the judgment of Das J. in 'AIR 1951 Orissa 186 at pp. 211, 212 (C)'. This argument appears to be based partly on a question of fact which cannot be taken up for the first time in a second appeal. The question as to whether the transferee's conduct from 1941 to 1944 would justify an inference that he acquiesced in allowing the holdings to be represented by his transferors in a rent suit was not taken up before the lower Courts nor was all available evidence in support of the same adduced. Mere silence on his part would not necessarily lead to an inference of such acquiescence. It may be that he did not want to pay the mutation-fee unless the landlord actually sued him for the same within the special period of limitation imposed by Section 31-B (1). But that would not take away his right which has been expressly conferred on him by the amending Act of 1938.

Moreover, in view of the knowledge of the transfer on the part of the landlord he might have kept quiet knowing fully well that if any rent suit was brought he would be given due notice. Apart from all these considerations the observations of Das J. in the case cited above are limited to those cases where the creditor's action in failing to im-plead the person really interested was 'bona fide'. Here, however, the 'bona fide' of the landlord is open to grave suspicion because with a clear knowledge of the transfer as early as 1941 he ignored the transferee in the rent suit brought in 1943-44. I am, therefore, not inclined to accept Mr. Das-gupta's argument that the conduct of the transferee from 1941 to 1944 would amount to acquiescence in the transferors representing the holdings in rent suits.

8. For the aforesaid reasons, I would affirm the judgments of both the Courts and dismiss the appeal with costs.


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