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Ahidhar Ghose Vs. Sm. Nisu Bala Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 170 of 1956
Judge
Reported inAIR1958Cal253,62CWN172
ActsTenancy Law; ;Bengal Tenancy Act, 1885 - Section 168A and 168A(1); ;West Bengal Estates Acquisition Act, 1954 - Sections 4 and 8;
AppellantAhidhar Ghose
RespondentSm. Nisu Bala Devi
Appellant AdvocateAnil Kumar Sinha, Adv.
Respondent AdvocateRajendra Bhusan Bakshi and ;Nagendra Mohan Saha, Advs.
Cases Referred and Atul Chandra v. Upendra Narayan
Excerpt:
- .....act, 1953 (w. b. act i of 1954) affects the relationship between an intermediary (a quondum tenure-holder) and his quondum under tenure-holder in the matter of realisation of rents or to be more precise, realisation of his decretal dues for rent by execution.4. the respondent was a tenure-holder and the appellant the holder of a subordinate tenure under her. for arrears of rent, the respondent obtained a decree against the appellant in rent suit no. 1 of 1954 of the 8th court of the subordinate judge at alipore. that was as far back as december 20, 1954. in the meantime, the west bengal estates acquisition act, 1953 (w. b. act 1 of 1954) had come into force on february 12, 1954, and the vesting of the estate concerned and all interests therein (including the respondent's tenure.....
Judgment:

P.N. Mookerjee, J.

1. A single question calls for decision in this appeal.

2. The question is short but somewhat intriguing and of some abiding importance and it may arise and, as a matter of fact, it has actually arisen in a number of cases.

3. The point is how the West Bengal Estates Acquisition Act, 1953 (W. B. Act I of 1954) affects the relationship between an intermediary (a quondum tenure-holder) and his quondum under tenure-holder in the matter of realisation of rents or to be more precise, realisation of his decretal dues for rent by execution.

4. The respondent was a tenure-holder and the appellant the holder of a subordinate tenure under her. For arrears of rent, the respondent obtained a decree against the appellant in Rent Suit No. 1 of 1954 of the 8th Court of the Subordinate Judge at Alipore. That was as far back as December 20, 1954. In the meantime, the West Bengal Estates Acquisition Act, 1953 (W. B. Act 1 of 1954) had come into force on February 12, 1954, and the vesting of the estate concerned and all interests therein (including the respondent's tenure and the appellant's subordinate tenure) had taken place on April 15, 1955. The decree, on transfer, was put into execution in Rent Execution Case No. 2 of 1955 of the 4th Court of the Subordinate Judge at Alipore. The application for execution was filed on September 5, 1955, and, in it, the drcree-holder prayed for realisation of the decretal dues by attachment and sale of an item of immovable property (dwelling house) of the judgment-debtor to be followed, if necessary, by attachment and sale of his moveables. In a supplementary application, filed by the decree-holder in pursuance of the Court's order, in support of her above prayer, she stated that, as the defaulting tenure had vested in the State under the aforesaid Act on and from April 15, 1955, it had ceased to exist and had no existence and as, therefore, thd decree under execution could not be executed against the same, the decretal dues could be realised from the other properties, both moveable and immoveable, of the judgment-debtor.

5. To the decree-holder's above prayer the judgment debtor filed an objection. In his petition of objection which was filed on December 20, 1955, the judgment-debtor pleaded, inter alia, as follows:

(i) that Section 168A of the Bengal Tenancy Act was a bar to the decree-holder's prayer forexecution; (ii) that the execution as prayed for was barred under Section 8 of the West Bengal Estates Acquisition Act; and (iii) that the decree-holder's only remedy was to proceed against the compensation money that would be awarded to the Judgment-debtor by the Government under the aforesaid Act or the defaulting tenure.

6. The judgment-debtor's objections were overruled by the learned Subordinate Judge and his application under Section 47, C.P.C., was dismissed. Against the said dismissal the judgment-debtor has come up on appeal to this Court.

7. On behalf of the appellant judgment-debtor the three arguments which are set out above have been repeated in this Court in support of his contention that the decree-holder cannot proceed against his moveable and immoveable properties as prayed for by her. That contention, in the light of the said arguments, really involves consideration of the effect of the West Bengal Estates Acquisition Act on the rights of the parties in the matter of realisation of rent, or what is more to the point, realisation of decretal dues for rent by execution.

8. We shall take up the appellant's arguments seriatim in the order in which they have been presented above.

9. On Section 168A of the Bengal Tenancy Act, the appellant argued that the proviso to Clause (a) of Sub-section (1) of the Section, on which the respondent relied to avoid the statutory bar, had no application as 'the term of the tenancy' had not expired within the meaning of the said proviso. The argument was put under two heads :

(i) that the proviso could not apply except to the case of a tenancy for a fixed term and the two leading decisions, holding to the contrary, namely, Satish Chandra v. Sudhir Krishna : AIR1942Cal429 and Atul Chandra v. Upendra Narayan : AIR1942Cal478 , were wrongly made and should be reconsidered,

and (ii) that, even otherwise, namely, even if the said decisions were correct and the proviso applied to the cases of all tenancies when they terminated except by surrender, the present case would not be covered by it.

10. The submission under the first head at once be rejected. Apart from the fact that the view of law on this point as laid down in the cases cited is well-established in this Court and has been followed on numerous occasions, we find no ground whatsoever for taking a different view. The proviso has been examined in detail in the decisions quoted and, for the reasons, given therein, with which we respectfully agree, we feel that no other construction of the phrase 'the term of the tenancy expires' is possible or legitimate in the context in which it is set by the legislature. Unfortunately, no doubt, the language of the proviso is unhappy and ambiguous but Courts have given to it the only possible, reasonable and legitimate meaning on a consideration of its entire scheme and structure and we respectfully adopt the same.

11. The submission under the second head requires closer examination. This relates, in sub-stance, to the effect of the West Bengal Estates Acquisition Act on Section 168A of the Bengal Tenancy Act. Under the former Act, the estate, comprising the respondent's and the appellant's tenure and under-tenure, vested in the State on and from April 15, 1954, that is, prior to the passing of the respondent's decree under execution. What in law was the effect of this vesting. There can be little doubt that the two tenures, the superior and the subordinate, became vested in the State. But did that by itself work out a merger? A reading of the Act tends to return an affirmative answer. Section 6 which, by Sub-section (1), entitles the intermediary concerned to retain some lands of his original tenure purports to provide in Sub-section (2) that he shall hold such lands directly under the State as a tenant on terms and conditions including rental, not necessarily having any relation to the terms and conditions or the rental of his original tenure; in other words, under a perfectly new tenancy in law. Section 5 also sufficiently shows that the old tenure will be gone, although the State will be treated as the defunct intermediary for certain purposes (vide Clause (c)). The Act, therefore, clearly contemplates a merger of the original superior and subordinate interests, acquired by the State and vesting in it under the provisions of Section 4, and an extinguishment or cessation of the same as tenures or interests in land in lieu, of course, of the statutory compensation, payable under the Act. For purposes of Section 168A of the Bengal Tenancy Act, therefore, we may safely hold in the light of the decisions, already quoted, that the term of the appellant's tenancy or the defaulting tenure has expired within the meaning of the section as a result of the State Acquisition under the West Bengal Estates Acquisition Act and that, accordingly, the proviso to Section 168A (1) would apply to eliminate the bar of the main part of the Sub-section in the present case.

12. The appellant's argument on Section 168A(1) must therefore, fail.

13. Section 8 of the Estates Acquisition Act need not detain us long. There is nothing in this section to warrant, or, even, to suggest, the view that arrears of rent from an intermediary are to be recovered only from the compensation money, payable to the intermediary under the Act. The proviso to the Section does, on the other hand, make it abundantly clear that the arrears may be recovered from the compensation money, that being one o the modes of such recovery, subject to the provisions of Section 26 of the Act. In other words, the proviso only prescribes that, where the above mode -- one amongst many, -- of recovery of arrears of rents is adopted or sought to be availed of, namely, recovery from the compensation money, it must be subject to the provisions of Section 26. The proviso is intended only to apply the restrictions under Section 26 when the arrears of rent are sought to be recovered from the compensation. There was necessity for the proviso as, otherwise, the whole of the compensation money might have gone to satisfy dues on account of arrears of rent which was not the intention of the statute and Section 26 might have been frustrated in a number of cases and in any event, unnecessary conflicts and complications would have arisen. Our attention was drawn to the amendment of Section 8, by which the words 'and shall without prejudice to any other mode of recovery be recoverable by attachment of any money that may be payable as compensation to such person under the Act' were omitted, and it was argued that the omission, in the light of the proviso added, was intended to restrict the right of recovery only to the compensation money. We do not think the argument can be accepted. The necessity and purpose of the proviso has already been explained and, as to the omission, it is enough to say that the words omitted were redundant or unnecessary and that, with or without them, the section means the same thing, namely, that the arrears would be recoverable in any manner (including attachment of the compensation money), recognised by law. We do not think, therefore, that Section 8, or, for the matter of that, anything in the Act, supports the appellant's contention that the arrears of rent can be recovered only from the compensation money.

14. As a last resort, Mr. Sinha relied on the well-known principle that, when a property is acquired in compulsory acquisition proceedings, the charge on it is transferred to the compensation money, which thenceforward represents it and contended that, as rent was a first charge on the tenure (vide Section 65 of the Bengal Tenancy Act), after acquisition of it by the State, that charge would be transferred to the compensation money, payable for the acquisition, and the landlord or the charge-holder would have to recover the rent from the same. That the charge would be transferred to the compensation money need not be disputed and may well be conceded but it does not necessarily follow that recovery of the amount cannot be made except from the compensation money. The charge-holder creditor may, no doubt, recover his dues from the charged property but he is not necessarily restricted to it nor even obliged to proceed against it in the first instance. This is plain enough and needs no elaboration. In the absence of any special condition, -- and there is none in the instant case before us, -- the charge-holder creditor is free to proceed against the other properties of his debtor. This is sufficient for rejecting Mr. Sinha's argument.

15. In the premises, this appeal must fail and it is dismissed with costs.

Sarkar, J.

16. I agree.


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