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Rajendra Nath Nag and ors. Vs. Ashalata Devi W/O Nishi Bhushan Mukhopadhya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1940Cal86
AppellantRajendra Nath Nag and ors.
RespondentAshalata Devi W/O Nishi Bhushan Mukhopadhya
Excerpt:
- .....fee. the petitioners on receipt of the notice of transfer filed an application under section 26-j, bengal tenancy act, for recovery of the balance of the landlord's transfer fee of rs. 40 with compensation, rs. 40. the munsif by his judgment dated 6th february 1939 has decided that the tenancies are occupancy holdings but that the application under section 26-j, ben. ten. act, is not maintainable under the bengal tenancy act as now amended. against that order, the present rule has been issued. the munsif has referred first to the bengal tenancy ordinance, 1938, which was published on 3rd june 1938. the effect of that ordinance, vide section 2, was merely to extend the time for registration which was available under section 23, eegistration act. but that does not affect the present.....
Judgment:
ORDER

S.K. Ghose, J.

1. This rule has arisen under the following circumstances : The opposite party-purchased by a registered kobala on 6th June 1938, from a tenant of the petitioners certain tenancies described in the plaint as mokarari-raiyati though according to the petitioners they are occupancy holdings. The opposite party paid Rs. 2 as landlord's transfer fee. The petitioners on receipt of the notice of transfer filed an application under Section 26-J, Bengal Tenancy Act, for recovery of the balance of the landlord's transfer fee of Rs. 40 with compensation, Rs. 40. The Munsif by his judgment dated 6th February 1939 has decided that the tenancies are occupancy holdings but that the application under Section 26-J, Ben. Ten. Act, is not maintainable under the Bengal Tenancy Act as now amended. Against that order, the present rule has been issued. The Munsif has referred first to the Bengal Tenancy Ordinance, 1938, which was published on 3rd June 1938. The effect of that Ordinance, vide Section 2, was merely to extend the time for registration which was available under Section 23, Eegistration Act. But that does not affect the present question, since the registration has already taken place.

2. The next point that the Munsif has taken is that according to the Bengal Tenancy Amendment Act of 1938, the landlord's transfer fee cannot, after 18th August 1938, be demanded. But in taking this view, the learned Munsif overlooked the provisions of Section 8, Bengal General Clauses Act (Act 1 of 1899). Reading Clauses (c) and (e) of that Section, it will be seen that the Amendment Act cannot, in the absence of a different intention appearing therein, affect the liability which has already accrued and a legal proceeding in respect of such liability may be instituted and continued as if the Amendment Act has not been passed. The learned advocate for the other side has pointed out that Section 26-J(1) merely imposes the liability to pay and Section 188(1) lays down the procedure by way of application. That only strengthens the argument in favour of the petitioners, because relying on this Section they are entitled to say that the liability to pay landlord's fee has already accrued and therefore they are entitled to follow the procedure laid down in Section 188(1) in spite of the Amendment Act of 1938. The order dismissing the application is therefore set aside and the lower Court is directed to proceed to hear the application. It may be noted that the finding of the Munsif that the properties in question are holdings in occupancy right and that the applicants are the landlords in respect of such holdings will stand. The rule is made absolute accordingly. There will be no order for costs in this rule.


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