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Province of West Bengal Vs. Midnapore Zemindary Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Case NumberCivil Rule No. 594 of 1949
Judge
Reported inAIR1950Cal159,54CWN677
ActsIndian Independence Order, 1947 - Schedule - Articles 8(2), 8(6) and 9
AppellantProvince of West Bengal
RespondentMidnapore Zemindary Co. Ltd.
Appellant AdvocateChandra Sekhar Sen and ;Jajneswar Majumdar, Advs.
Respondent AdvocateJnanendra Nath Mukherjee, Adv.
DispositionPetition dismissed
Excerpt:
- .....decree as i have said for rs. 300.3. the petitioners have contended before us that the province of west bengal was not liable for this rent and that the suit had been improperly decreed against them. the property which was the subject matter of the claim for rent was situate in the murshidabad district which was allotted on partition to west bengal. it is the contention of the petitioners before us that the house which was let for the purposes of a hospital served not only persons resident in the murshidabad district but also persons resident in adjoining districts which fell to eastern pakistan on partition. it is to be observed however that the petitioners apparently called no evidence to show that this hospital served any area other than, areas situate in the murshidabad district......
Judgment:

Harries, C.J.

1. This is a petition for revision of a decree for Rs. 300 made in favour of the plaintiff by the Court of Small Causes at Berhampore.

2. A suit was brought by the opposite party for recovery of rent of a certain house for the period April 1946 to August 1946 at the rate of Rs. 55 per month and also for the period April and May 1948 at the same rate together with damages amounting to Rs. 34/6. It appears that the petitioners who were the tenants admitted liability for the rent falling due in April and May 1948 and the whole contest between the parties

was confined to the liability for rent for the period April 1946 to August 1946. Eventually the learned Small Cause Court Judge held that the petitioners were liable for rent for that period together with a sum of Rs. 25 by way of damages. He accordingly passed a decree as I have said for Rs. 300.

3. The petitioners have contended before us that the province of West Bengal was not liable for this rent and that the suit had been improperly decreed against them. The property which was the subject matter of the claim for rent was situate in the Murshidabad district which was allotted on partition to West Bengal. It is the contention of the petitioners before us that the house which was let for the purposes of a hospital served not only persons resident in the Murshidabad district but also persons resident in adjoining districts which fell to Eastern Pakistan on partition. It is to be observed however that the petitioners apparently called no evidence to show that this hospital served any area other than, areas situate in the Murshidabad district. Further it would appear as if the petitioners admitted that the purposes served by this hospital after the partition were exclusively the purposes of West Bengal because the petitioners admitted liability for the rent in April and May 1948 which was of course rent which had accrued due after the partition. I do not think therefore that it can now be alleged by the petitioners that this hospital served any districts other than districts allotted to West Bengal on partition.

4. Mr. Chandra Sekhar Sen on behalf of the petitioners has relied upon Article 8 (2), Indian Independence Order, 1947, and he has urged that this Article clearly shows that the liability for this rent rests on the Government of Eastern Pakistan and not on the Government of West Bengal. It would indeed be strange that the past liability for rent should be that of Eastern Pakistan when the house never became part of Eastern Pakistan on partition. Nevertheless, that is the argument which has been addressed to us on behalf of the Provincial Government.

5. The Article in question is in these terms: 'Any contract made on behalf of the Province of Bengal before the appointed day shall, as and from that day.

(a) if the contract is for purposes which as from that day are exclusively purposes of the Province of West Bengal, be deemed to have been made on behalf of that Province instead of the Province of Bengal; and

(b) in any other case be deemed to have been made on behalf of the Province of East Bengal instead of the Province of Bengal and all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the Province of Bengal, be rights or liabilities of the Province of West Bengal or the Province of East Bengal, as the case may be.'

6. It is clear from this Article that if the purposes for which the contract was made were after the appointed day the exclusive purposes of the new Province of West Bengal, then the province of West Bengal would be liable though the contract was made with the old Province of Bengal which had been partitioned. It is further clear that if the contract does not fall within Article 8 (2) (a) the liability by reason of Article 8 (2) (b) falls on East Bengal or Eastern Pakistan. Mr. Sen's argument is that as the case does not fall within Article 8 (2) (a) the liability must be that of Eastern Pakistan.

7. As I have said earlier, it was never the case of the Provincial Government that this hospital which was housed in the house in question served any district which is now part of Eastern Pakistan, and as I have pointed out the Provincial Government seemed to have admitted the contrary in paying the rent due after the partition and that they would only be liable if after the partition the hospital was exclusively for the purposes of West Bengal. It seems to have been assumed in the Court below that before partition this hospital was maintained exclusively for the purposes of certain districts which on partition fell to West Bengal, and if that be so I think there can be no doubt whatsoever that Article 8 (2) (a), Indian Independence Order applies and that West Bengal would be liable for all rent accruing due after the partition and, as I have said, the rent which accrued due after the partition has actually been paid by the Province.

8. Mr. Sen however contended that the Province could not be made liable for rent which had accrued due before the partition. But it seems to me that the terms of the Article makes the Province which is liable for the rent after the partition liable for the rent which accrued due before the partition, because Article 8 (2) provides that

'all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the Province of Bengal be rights or liabilities of the Province of West Bengal or the Province of East Bengal, as the case may be.'

9. As I have already pointed out, this is a liability which becomes the liability of the Province of West Bengal under Article 8 (2) (a), Indian Independence Order as the purposes of the hospital on independence day were exclusively the purposes of West Bengal, That being so the rent which had accrued due before independence and which was payable by the old Province of Bengal became under this Article payable by the Province of West Bengal.

10. Mr. Sen however next urged that effect must be given to Sub-clause (e) of Article 8, Indian Independence Order. That clause is in these terms:

'The provisions of this Article shall have effect subject to the provisions of Article 9 of this order; and bank balances and securities shall, notwithstanding that they partake of the nature of contractual rights, be dealt with as property to which Article 7 of this order applies.'

11. Article 9, Indian Independence Order is in these terms:

'All liabilities in respect of such loans, guarantees and other financial obligations of the Governor General in Council or of a Province as are outstanding immediately before the appointed day shall as from that day:

(a) in the cage of liabilities of the Governor General in Council be liabilities of the Dominion of India;

(b) in the case of liabilities of the province of Bengal be liabilities of the Province of East Bengal;

(c) in the case of liabilities of the Province of the Punjab be liabilities of the Province of West Punjab; and

(d) in the case of liabilities of any Province other than Bengal, or the Punjab continue to be liabilities of that Province.'

It is contended that this clause will cover contractual obligations and will cover liabilities for rent such as exist in this case. The obligation to pay rent is in one sense a financial obligation but I think it is clear that the words 'and other financial obligations of a Province' in Article 9 must be construed ejusdem generis with the words 'loans and guarantees'. What this clause covers are loans, guarantees and other obligations of a like nature. Clearly, it was not intended to cover purely contractual obligations; otherwise Article 8 becomes wholly worthless. It is true that loans and guarantees and such like are obligations of a contractual nature and would be covered by Article 8 but for Clause (6) of that Article which makes the provisions of Article 8 subject to the provisions of Article 9 and further makes bank balances and securities, which are also contractual obligations, property to which Article 7 applies. In other words, Clause (6) exempts from the operation of Article 8 certain contractual obligations which ace dealt with in Articles 7 and 9. Unless the Court is satisfied that the obligation to pay rent for house is a 'financial obligation' as the term is used in Article 9 then quite clearly Article 8 will apply. If the obligation to pay rent was a financial obligation within Article 9, then of course by reason of Article 9 (b) the Province of East Bengal or Eastern Pakistan will be liable. But as I have said previously the term 'financial obligations' used in Article 9 must be given a restricted meaning. The obligations must be of a nature similar to the obligations which are set out previously in that section. In my view, the obligation to pay rent for these premises is a purely contractual obligation which is covered by Article 8 and as from Independence day the purposes of the letting of the house were exclusively the purposes of West Bengal, then West Bengal is liable for rent which accrued due from the old Province of Bengal before partition. That to my mind is clear from the terms of Article 8, Sub-clause (2). If after Independence day the purposes of the contract can be regarded as exclusively the purposes of the new Province of West Bengal then West Bengal is liable for what accrued due under this contract before partition.

12. It may be that the case was not presented properly before the lower Court and the truth may be that areas now failing within Eastern Pakistan may have been served by this hospital as well as areas which fell within West Bengal on partition. That is what is suggested in argument before us; but as I have pointed out that involves investigation into evidence and facts and such a case does not appear to have been made in the Court below and therefore cannot in my view be made in revision here. It seems to have been presumed, if not conceded, in the Court below that the area served by this hospital fell exclusively to West Bengal on partition.

13. For the reasons which I have given, I am satisfied that the view of the lower Court is right and that the Province of West Bengal is liable for rent for the period April to August 1946 which was of course rent which accrued due before partition.

14. That being so, this petition fails and is dismissed. The Rule is discharged with costs.

15. Let the counter affidavit filed in Court today be kept on the record.

Sarkar, J.

I agree.


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