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Chandra Nath Mukherjee Vs. Sm. Tusarika Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 97 of 1950
Judge
Reported inAIR1954Cal123
ActsTenancy Law; ;Bengal Tenancy Act, 1885 - Sections 15 and 16
AppellantChandra Nath Mukherjee;sm. Tusarika Devi and ors.
RespondentSm. Tusarika Devi and ors.;chandra Nath Mukherjee
Advocates:Nirmal Chandra Chakravarti, ;Amiyalal Chatterjee, ;Apurba Charan Mukherjee and ;Chandidas Roy Choudhury, Advs.
DispositionAppeal dismissed
Excerpt:
- .....performed by them.8. section 15 of the bengal tenancy act hasundergone a substantial change by the bengaltenancy (amendment) act, 1947 (bengal act vof 1947). the amended section runs as follows:'when a succession to a permanent tenure takesplace, the person succeeding shall give noticeof the succession to the landlord or his commonagent, if any, in the prescribed form within sixmonths from the date of succession, in additionto or substitution of any other mode of service,in the manner referred to in sub-section (3) ofsection 12: provided that where, at the instance of the person succeeding, mutation is made in the rent-roll of the landlord within six months of the succession, the person succeeding shall not be required to give notice under this section.' 9. the new section provides that.....
Judgment:

Benupada Mukherjee J.

1. This appeal arises out of a suit for recovery of arrears of rent in respect of a 'seputni' tenure. The suit was originally instituted by one Promoda Kumar Banerjee as Receiver to the estate of deceased Nirmal Chandra Banerjee. 'Pro forma' defendants Nos. 2 to 4 are the heirs of Nirmal. Out of them 'pro forma' defendants Nos. 2(a) and 2(b) were substituted in place of the Receiver during the pendency of the suit in the Trial Court on an application dated the 25th July, 1949. It was alleged in that application that the entire 'darputni' under which the 'seputni' of the principal defendant was held was allotted to them in pursuance of a compromise decree passed in Title Suit No. 20 of 1949 of the Second Subordinate Judge's Court, Hooghly. The total claim was originally laid at Rs. 40312-11-17gds. It was ultimately reduced to Rs. 27711-8-1 pie by successive amendments.

2. The suit was contested by the principal defendant who pleaded 'inter alia' that some payments were not credited and rent should be decreased on account of delusion and that the amount of damages claimed was excessive. A further plea was taken that the suit was barred by the provisions of Sections 15 and 16 of the Bengal Tenancy Act.

3. These objections were mostly overruled by the learned Subordinate Judge who delivered the first judgment on the 27th April, 1950. He passed a decree for Rs. 25005/14/19 gandas with proportionate costs by reducing the claim for damages from 12 1/2 per cent, to 6 1/4 per cent.

4. Thereupon this appeal was filed by the defendant, and after hearing both the parties, the suit was remanded to the Trial Court, because twodocuments which related to the objection under Sections 15 and 16 of the Bengal Tenancy Act wereimproperly admitted in evidence by the Trial Court without formal proof. An opportunity was given to tae plaintiffs to have these documents marked as exhibits after formal proof, and the Trial Court was also directed to record a finding oh the issue as to whether the suit was barred by the provisions of Sections 15 and 16 of the Bengal Tenancy Act. In pursuance of these directions, the Trial Court marked the above two documents as exhibits 1 and 2 after recording additional evidence, and it also recorded a finding that the suit was not barred under Sections 15 and 16 of the Bengal Tenancy Act, because these two sections have got no application to the facts of the present case. The appeal has now come up before us for final bearing.

5. Mr. Chakravarti appearing on behalf of the appellant urged two points in support of the appeal. He contended, in the first place, that the plaintiffs had failed to establish by proof of their title that the relationship of landlord and tenant existed between the parties in respect of the disputed tenure. Secondly, he urged that the provisions of Sections 15 and 16 of the Bengal Tenancy Act did apply in this case, and the finding of the learned Subordinate Judge to the contrary was wrong. I snail deal with both these points one after another.

6. Regarding the question of title, which arises incidentally, it may be mentioned that deceased Nirmal Chandra Banerjee was admittedly the owner of the 'darputni' under which the subordinate tenure in arrear is held. The 'jama' of the subordinate tenure is Rs. 12150/- per year exclusive of cesses. It is not also disputed that the 'pro forma' defendants of the original plaint are the 'maliks' in sixteen annas share who are entitled to recover rent from the appellant. Some of these 'pro forma' defendants, namely, pro-defendants 2 to 2(b), who are now the contesting respondents filed an application on the 25th July, 1949, for being substituted in place of the Receiver on the allegation that they had become entitled to the 'darputni' in sixteen annas share by virtue of a compromise arrived at between them and the remaining 'pro forma' defendants. The principal defendant filed an objection to this petition. The only relevant objection taken in this objection petition was that the claim of the present plaintiffs was barred by limitation and they could not be impleaded in the category of the plaintiffs, because their names had been struck off from the category of 'pro forma' defendants.

This objection petition which was filed on the 1st September, 1949, came up for hearing on the 11th November, 1949, and it was disallowed. It thus appears that the principal defendant never traversed or controverted the allegation of the present plaintiffs that they and the other heirs of Nirmal Chandra Banerjee were 'maliks' of the superior tenure in sixteen annas share and that by virtue of a compromise arrived at in Title Suit No. 20 of 1949, these plaintiffs acquired sixteen annas interest in the 'darputni'. Jagannath Kali, defendant's witness No. 1, admitted that the plaintiffs had got 'darputni' interest. In these circumstances, I hold that the plaintiffs' sixteen annas interest in the superior right was rather admitted and was never questioned by the principal defendant in the Trial Court. The 'seputni' in arrear being admitted held under the 'darputni', I hold that the relationship of landlord and tenant between the parties exists. So the first contention urged on behalf of the appellant must fail.

7. The second ground taken on behalf of the appellant is that the provisions of Sections 15 and 16 of the Bengal Tenancy Act as apply to the facts of the present case although the learned Subordinate Judge has recorded a finding to the contrary after the suit had been remanded to the Trial Court. The ground for holding that the provisions of Sections 16 and 16 of the Bengal Tenancy ,Act are not applicable is that the suit was originally instituted by a Receiver. The learned Subordinate Judge has cited a case reported in -- 'Harendra v Abinash, 7 Ind Cas 781 (Cab (A). It, however, appears that the learned Subordinate Judge has misappreciated the case cited by him. It is, no doubt, true that a Receiver does not become entitled to the tenure by succession, and so he does not come within the mischief of Sections 15 and 16 of the Bengal Tenancy Act. In order, however, that these sections may not have any application, not only is the suit to be instituted at the instance of the Receiver, but he must also figure as the plaintiff up to the stage of the passing of the decree. In the case cited by the learned Subordinate Judge, the Receiver figured as the plaintiff up to the time of the passing of the decree. In the present case, however, the plaintiffs were substituted in place of the Receiver during the pendency of the suit in the Trial Court, and they are certainly claiming rent by virtue of their succession to the 'darputni' which is a permanent tenure. So the bar imposed by Sections 15 & 16 of the Bengal Tenancy Act would operate, unless they succeed in showing that the duties imposed by the Bengal Tenancy Act have been performed by them.

8. Section 15 of the Bengal Tenancy Act hasundergone a substantial change by the BengalTenancy (Amendment) Act, 1947 (Bengal Act Vof 1947). The amended section runs as follows:

'When a succession to a permanent tenure takesplace, the person succeeding shall give noticeof the succession to the landlord or his commonagent, if any, in the prescribed form within sixmonths from the date of succession, in additionto or substitution of any other mode of service,in the manner referred to in Sub-section (3) ofSection 12: Provided that where, at the instance of the person succeeding, mutation is made in the rent-roll of the landlord within six months of the succession, the person succeeding shall not be required to give notice under this section.'

9. The new section provides that the notice of succession must be given to the landlord or his agent direct, and not through the medium of the collector within six months from the date of the succession. The proviso provides that In lieu of this notice private mutation may be obtained in the rent roll of the superior landlord within six months from the date of the succession. The penalty for non-compliance with either of these two alternatives has been laid down in Section 16 which is in the following terms:

'A person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit or other proceeding any rent payable to him as the holder of the tenure, until the duties imposed upon him by Section 15 have been performed.'

10. The plaintiffs' case is that mutation has been obtained in the rent roll of the superior landlords. Exhibit 1 is the rent receipt given by 'putnidar' Ram Lal Bandopadhyay in respect of the eight annas share of the 'darputni'. The date of the receipt is the 4th January, 1950. The first judgment was delivered by the learned Subordinate Judge after this date. The validity of this mutation was challenged by the learned Advocate for the appellant on twofold grounds. In the first place, he contended that the document produced bythe plaintiffs respondents is a 'dakhila' and not a rent ro(sic), and the proviso to Section 15 lays down that the mutation must be made in the rent roll of the superior landlord. There is no substance in this contention. It is not necessary that for the purpose of proving the mutation mentioned in the proviso of Section 15 of the Bengal Tenancy Act, the rent roll of the superior landlord should be actually called for and produced. A 'dakhila' may in some circumstances be sufficient for the purpose of proving the mutation. In the 'dakhila', marked exhibit 1, the name of the 'darputni mehal' has been described. The names of the 'darputnidars', viz., the three plaintiffs have also been clearly mentioned. In my judgment, these facts are sufficient for proving that the plaintiffs have obtained mutation in the rent roll of the superior landlords in eight annas share.

11. The second ground taken on behalf of the appellant is that the provisions of Section 15 of the Bengal Tenancy Act have not been complied with inasmuch as notice of succession has not been given as required by this section, and that the mere obtaining of mutation is not sufficient compliance with this section after the lapse of more than six months from the date of the succession.

12. Let me examine how far this contention of the appellant is correct. Section 15 of the Bengal Tenancy Act provides a time limit of six months from the date of succession, either for giving notice of it in a prescribed form, or alternatively for obtaining mutation amicably in the rent roll of the landlord. Section 16 of the Bengal Tenancy Act extends this time limit by implication to the date of passing of the decree where a suit for recovery of arrears of rent is brought by a person who has inherited a permanent tenure.

13. Mr. Chakravarti contends that the extension of time holds good in the case of giving notice of succession, but not in the case of private mutation. In support of this contention, reliance is placed on the following expression occurring in Section 16 of the Bengal Tenancy Act, 'until the duties imposed upon him by Section 15 have been performed.'

Mr. Chakravarti contends that the giving of the notice is a duty imposed on the person succeeding to a permanent tenure, but the obtaining of mutation is not a duty imposed upon him, it being an affair of the superior landlord. There is no substance in this contention of Mr. Chakravarti. The two alternative courses provided in Section 15 -- one in the main part and another in the proviso -- are independent of each other, and a person succeeding to a tenure can avail himself of any one of the courses. If instead of giving notice of succession, he obtains mutation before the passing of the decree, he certainly performs the duties imposed upon him by Section 15 of the Bengal Tenancy Act. Although, therefore, the mutation was obtained admittedly more than six months after the date of succession, it was obtained before the passing of the decree, and so I hold that there has been a sufficient compliance with the requirements of Sections 15 and 16 of the Bengal Tenancy Act in respect of the eight annas share of the tenure.

14. I now pass on to examine whether such mutation was obtained in respect of the remaining eight annas share of the tenure, or whether suchmutation was necessary in respect of that share. In this connection I may refer to Exhibit 2, which is an order of the Burdwan Raj Estate, dated the 12th January, 1950. This order shows that the three plaintiffs have been recognised as 'putnidars' in respect of the remaining eight annas share. It is clear from this order that the plaintiffs have acquired 'putni' interest in respect of the remaining eight annas share of the 'mehal'.

15. The question which then arises is this: where there has been a succession to a permanent tenure, but where the same person holds the superior and subordinate interest, whether there is any scope for the application of the provisions of Sections 15 and 16 of the Bengal Tenancy Act. In my judgment, the answer to this question must be in the negative. To say that in such a case a person should give notice of the succession to himself would be altogether meaningless and absurd, because no one has got better notice or knowledge of the succession than the person succeeding. In my judgment, the provisions of Sections 15 and 16 of the Bengal Tenancy Act do not apply in respect of the eight annas share of the 'darputni', because the plaintiffs have also acquired the superior 'putni' interest regarding that share. The word 'landlord' occurring in the following expression of Section 15 'the person succeeding shall give notice of the succession to the landlord or his common agent,' must of necessity denote a person who is different from the person succeeding, Section 15 of the Bengal Tenancy Act can have no operation where the interest of the person succeeding and the interest of the superior tenure are combined in one person. As the plaintiffs have become entitled to eight annas share of the superior 'putni', the question of giving notice of the succession to themselves, or of obtaining mutation in their own rent roll does not arise.

16. Mr. Chakravarti contended that the acquisition of eight annas interest in the 'putni' right was not mentioned in the plaint, and so the appellant has become prejudiced. It was not, however, necessary to mention this fact in the plaint, because this is a matter of evidence which was necessary for the plaintiffs to produce for the purpose of meeting with the objection taken under Sections 15 and 16 of the Bengal Tenancy Act.

17. Summing up the above, I hold that in the facts and circumstances of this particular case, there has been sufficient compliance with the requirements of Sections 15 and 16 of the Bengal Tenancy Act in respect of the eight annas share of the 'darputni', but the provisions of those two sections do not apply with regard to the remaining eight annas share. The suit is, therefore, not barred by the provisions of Sections 15 and 16 of the Bengal Tenancy Act.

18. Both the objections taken on behalf of the appellant fail and so the appeal fails. The appeal is accordingly dismissed with costs and the judgment and decree of the Subordinate Judge passed on the 27th April, 1950, are hereby affirmed.

R.P. Mookerjee, J.

19. I agree.


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