1. This appeal is by the defendants. The question in dispute is whether the darpatni interest of the plaintiff has been annulled. The zemindar is the Maharajah of Burdwan. He obtained a rent decree against the patnidar and in execution thereof purchased the patni. He took proceedings to annul the darpatni of the plaintiff under Section 167, Ben. Ten, Act. The plaintiff's husband entered into negotiations for a settlement of the patni with his minor sons; but they eventually broke down and the patni has now been settled with the defendants. On an allegation that the defendants are attempting to realise rent from the tenants direct the plaintiff has been granted a permanent injunction restraining them from doing so. Four main points have been put forward by Mr. Chakrabarty in support of the appeal: (1) the darpatni was annulled by the proceedings taken under Section 167, Ben. Ten. Act; even if the notice was not in fact tendered to the plaintiff's husband the service was a good one under the provisions of the Civil Procedure Code; (2) by the purchase of the patni the darpatni was automatically annulled; (3) the proceedings taken by the Maharajah were sufficient to annul it altogether apart from Section 167, Ben. Ten. Act; (4) no case has been made out for granting the plaintiff a permanent injunction.
2. In dealing with the factum of service the learned Munsif approached the matter in a rather unrealistic way. He seems to have thought that an attempt would be made on behalf of the Maharajah to suppress the notice and that any witness to the service in any way connected with the Maharajah's office should be viewed with suspicion. The learned Subordinate Judge however approached the question from the right point of view. He pointed out that, so far from it being to the interest of the Maharajah to suppress the notice, it was to the interest of the plaintiff and her husband to deny all knowledge of it and attempt to make out a case of suppression. He however upheld the finding of the Munsif that it was in fact suppressed. The contents of the return are as follows
As the plaintiff is a pardanashin lady, the peon was unable to serve it on her personally and handed it over to her husband and on his refusal to accept it or give a receipt, served it by hanging.
3. The husband was formally identified by D. W. 4 and was personally known to defendant 1, who accompanied the peon. As the plaintiff's husband was personally known to defendant l, this is not a case of a trick being played on him by D. W. 4. It must be a case of his deliberately allowing a false return to be submitted. The fact that he was a witness to the service shows his anxiety in the matter and his only interest was to see that service was effected properly. A false return would do him no good at all. His conduct would appear to be inexplicable. On the other hand, it was to the interest of the plaintiff's husband to deny the service. The reason why the learned Subordinate Judge came to, what appears to be a perverse finding, was that he felt that he was bound to do so in view of the evidence of the P. W. 1, an advocate of this Court. This gentleman was relied upon to prove an alibi by establishing that when the plaintiff's husband was supposed to be refusing the service in his village he was actually in Calcutta. The learned Subordinate Judge thought himself faced with the difficulty of deciding whether defendant 1 was behaving like a lunatic or whether the advocate was giving false evidence to oblige the plaintiff. Had the matter rested there it would have been impossible for me to interfere with the finding.
4. The date of the alleged service is 17th October 1939. The evidence of Mr. Ghose, the advocate, is that the plaintiff's husband saw him in Calcutta on 17th October 1941. There is therefore no question of any alibi at all. The deposition was read over to Mr. Ghose and admitted by him to be correct. There is nothing in the cross-examination to establish affirmatively that the witness made a mistake. The whole foundation of the finding in both the Courts below has gone. It is clear that if it had not been for their misinterpretation of the evidence of this gentleman they would have found that the notice was served. That is the only reasonable conclusion on the evidence. On the other hand, if the person to whom the notice was tendered was not the plaintiff's husband, it could not be said that the service was good under the provisions of the Civil Procedure Code. The peon did not even purport to proceed under Order 5, Rule 17.
5. If the proceedings taken under the Bengal Tenancy Act fail, the appellants have to fall back upon the provisions of the regulation. Mr. Chakravarty relies on the words 'must be considered to be cancelled' to establish that the darpatni was automatically put an end to when the patni was purchased in execution of the rent decree. It is now too late in the day to put forward such a contention. It is supported by the decision in Krishna Promoda Dasai v. Dwarka Nath Sen. ('13) 17 C. W. N. 1092 : 20 I. C. 654, but, if I may say so with respect, I doubt whether the decision of the Privy Council in Ranee Surno Moyee v. Maharajah Sutteschunder Roy Bahadur (1863-66) 10 M. I. A. 123, has been successfully got rid of. On the other hand, it is possible to support the actual decision on the finding of the learned Judges that the zemindar actually did something to show his intention to annul the darpatni. The respondent is also supported by the decision of the Pull Bench in Titu Bibi v. Mahesh Chunder Bagchi ('83) 9 Cal. 683 (F.B.). The question was recently considered in Arun Chandra v. Surajit Sen : AIR1934Cal44 , when all the authorities were reviewed. It is really only necessary for me to say that I follow that decision. The contention of the appellant on this point must therefore be overruled.
6. On the third point Mr. Chakravarty contends firstly that all that is necessary is that the zemindar should do some unequivocal act to show his intention to annul the lease and that notice to the lessee is not a condition precedent to the annulment: secondly, that in any case such notice has been given hero. Some light is thrown on this matter by the judgment given in the case reported in 60 cal. 1223. It was there held that the institution of a rent suit against some tenants making the darpatnidar a pro forma defendant is an effective election to annul the darpatni. Of course if the darpatnidar were not made a party, it could not be said that the plaintiff knew of the existence of the darpatni and no intention to annul it could be inferred. But there is no suggestion in the judgment that the election becomes effective only from the date of the service of the summons. The darparnidar has no right to object and it rests entirely with the zemindar to annul or maintain the lease. In my judgment the true view is that failure to give notice to the darpatnidar will give him an equitable right to reimbursement for sums spent by him subsequent to and in ignorance of the annulment. In the present case, the zemindar filed a notice in the Collector's office for service on the darpatnidar. Nothing could be more unequivocal than that and nothing further was necessary. So far as the actual service is concerned, the question from this point of view is not whether there was a legal service within the meaning of the Code of Civil Procedure but whether the plaintiff in fact received the notice. Her own evidence to the effect that she did not, must be taken with a grain of salt. The reference to it in EX. A, the draft lease drawn up by her husband on behalf of her minor sons, shows conclusively that she did know of it.
7. Finally, it is necessary to consider whether the plaintiff has made out a case for a permanent injunction. Briefly, Mr. Chakrabarty's argument is that assuming that the proceedings taken under Section 167, Bengal Tenancy Act, were ineffective the lease is still liable to be annulled. If this is correct, a permanent injunction clearly could not be granted. The acceptance of this argument does not entail the dismissal of the suit. I should merely substitute a declaration of the plaintiff's title for the permanent injunction which would enable her to collect rent so long as her lease is not annulled. It would not however be possible to give effect to this contention without allowing the defendants to amend the written statement. The defendants would only be entitled to annul, provided that the zemindar had done nothing to interfere with such right. Such a defence may involve questions of fact and it should have been taken specifically in the written statement.
8. Dealing with the merits of the argument II can find nothing either in the Regulation or in the decisions dealing with it to suggest that this right is merely personal to the zemindar. If it is not, there is no reason why it should not be exercised either by a vendee or by a lessee. The right has to be exercised within a reasonable time. Ordinarily, such a time would be before the zemindar parts with his interest. Questions such as the consideration money, selami, rent reserved etc. would depend upon whether these leases are annulled or not. An ordinarily reasonable man would either annul them or maintain them before the execution of the deed of transfer. A case such as the present is however peculiar. The zamindar did take steps to annul the lease and the defendants took the property on the footing that the lease was annulled. If it eventually turns out that the proceedings were rendered ineffective through the laziness or dishonesty of some Government officer, it would be unreasonable to hold that the rights of third persons should be adversely affected thereby. I am therefore of opinion that in a case such as the present it would be open to the defendants to annul the plaintiff's darpatni within a reasonable time from the decree in this suit. For the reasons I have already given the appeal must be allowed, the decrees of the Courts below set aside and the suit dismissed with costs in all Courts.
9. 2nd February 1945. -- Mr. Mukherjee asks for leave to appeal. Leave will be allowed on terms: The respondent must give an undertaking within a fortnight that she will not collect any rent from the tenants. The appellants within a fortnight of the termination of each quarter of the Bengali year will furnish to the respondent a statement of rent realised by them either amicably or by suit. They will also furnish a list of suits for rent filed by them during the quarter. To save limitation the respondent may institute rent suits making the appellants parties to such suits.