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Abul Khair Vs. Meher Ali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal712
AppellantAbul Khair
RespondentMeher Ali
Cases ReferredBelchambers v. Hussan Ali Mirza Bahadur
Excerpt:
land registration act (bengal act vii of 1876), sections 78, 79 - bengal tenancy act (viii of 1885), section 60--suit for rent--unregistered proprietor. - .....judges acted, and following that principle, we think the subordinate judge was wrong.3. i would also point out that in the case of belchambers v. hussan ali mirza bahadur (1898) 2 c.w.n., 493, it was held that the mere non-registration of the name of the plaintiff at the time that the rent suit was instituted, furnished no ground for the dismissal of the suit.4. the decree of the subordinate judge is set aside, and the case must be sent back in order that any questions arising in the appeal may be disposed of. 5. the appellant will get his costs in this court.
Judgment:

Macpherson and Stevens, JJ.

1. The Subordinate Judge has reversed the decree of the Munsif and dismissed the plaintiff's suit on the sole ground that the plaintiff's name not having been registered as proprietor at the time when the suit was brought, although it was registered while the suit was pending, the plaintiff, under the provisions of Section 78 of the Land Registration Act and Section 60 of the Bengal Tenancy Act, could not maintain a suit for arrears of rent. In so deciding the Subordinate Judge has cited the decisions in the cases of Dhoronidhur Sen v. Wajidunnissa (1888) I.L.R., 16 Cal., 708, and Surja Kant Acharya Bahadur v. Hemant Kumari Devi (1889) I.L.R., 16 Cal., 706. He considered that the decision in the case of Dhoronidhur Sen v. Wajidunnissa, so far from being overruled, was considered to be correct by a majority of the Judges of the Full Bench in the case of Alimuddin Khan v. Hira Lall Sen (1895) I.L.R., 23 Cal., 87.

2. We are unable to adopt this view. In the Pull Bench case it was decided that Sections 78 and 79 of the Registration Act, Bengal Act VII of 1876, offered no bar to a person whose name was not registered, as proprietor or manager, bringing a suit for arrears of rent, and that it was sufficient if, during the pendency of the suit and prior to decree, his name was registered. That was a suit instituted in the Small Cause Court in Calcutta, and the majority of the Judges, who took the view expressed above, thought it was unnecessary to consider whether or not the case of Dhoronidhur v. Wajidunnissa was rightly decided, as it might have been affected by the provisions of Section 60 of the Bengal Tenancy Act. Norris, J., one of the Judges who formed the majority, alone said that he thought the case of Dhoronidhur v. Wajidunnissa was wrongly decided. Certainly the Subordinate Judge is not right in saying that the case of Dhoronidhur v. Wajidunnissa was approved of. The most that can be said is that it was distinguished from the case before the Full Bench, and that the majority of the Judges thought it unnecessary to say whether the decision was or was not right. The effect of the decision of the majority of the Judges was, we think, clearly this: that apart from the provisions of Section 60 of the Bengal Tenancy Act, Sections 78 and 79 of the Land Registration Act did not prevent an unregistered proprietor from bringing a suit for arrears of rent. What we have, therefore, to consider in the present case is whether the provisions of Section 60 of the Bengal Tenancy Act render a suit by an unregistered proprietor unmaintainable. It seems to us that section has no such effect. It provides that when rent is due to the proprietor, manager, or mortgagee of an estate, the receipt of the person registered as proprietor, manager or mortgagee of that estate, shall be a sufficient discharge for the rent, and that the person liable for the rent shall not be entitled to plead in defence to a claim by the person so registered that the rent is due to any third person. It follows that the receipt of an unregistered proprietor would not prevail against the claim of the registered proprietor; nor would it do so under the provisions of Section 79, Bengal Act 'VII of 1876. If the suit is maintainable, notwithstanding the provisions of Sections 78 and 79 of Bengal Act VII of 1876, we do not see anything in the provisions of Section 60 which renders it unmaintainable; and although the case of Dhoronidhur v. Wajidunnissa is not expressly overruled by the decision of the Full Bench to which I have referred, we think we must apply the principle on which the majority of the Judges acted, and following that principle, we think the Subordinate Judge was wrong.

3. I would also point out that in the case of Belchambers v. Hussan Ali Mirza Bahadur (1898) 2 C.W.N., 493, it was held that the mere non-registration of the name of the plaintiff at the time that the rent suit was instituted, furnished no ground for the dismissal of the suit.

4. The decree of the Subordinate Judge is set aside, and the case must be sent back in order that any questions arising in the appeal may be disposed of.

5. The appellant will get his costs in this Court.


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