1. This case has been referred to me under the proviso to Section 575 of the Code of Civil Procedure in consequence of a difference of opinion on a point of law between the two Judges who heard the appeal.
2. The point of law is whether under Regulation VIII of 1819 the purchaser of a putni at a sale under that Regulation can avoid a mokurari which was not created by the putnidar for whose default the sale was held, but by a former putnidar.
3. It seems that the putni in this case was created in 1819, the mokurari was granted by the then putnidar in 1839. In 1848 the putni was sold for arrears of rent under the Regulation, but the mokurari was not avoided at that time. In 1885 the putni was again sold under the Regulation, and in 1890 the purchaser brought the present suit to avoid the mokurari. Mr. Justice RAMPINI, relying on the strict wording of Section 11 of the Regulation, and on a decision of this Court in the case of Issen Chunder Kur v. Madhub Chunder Ghose 1 Rev. Jud. and Police Journal, 1863, p. 109 is of opinion that the plaintiff cannot avoid the mokurari, inasmuch as it was not created by the putnidar, for whose default the sale was held at which the plaintiff purchased.
4. Mr. Justice Ghose, on the other hand, is of opinion that, having regard to the policy and to the principle of the Regulation, the zemindar is entitled to bring the putni to sale in the same condition in which it was at the time of its creation, and that the purchaser is therefore entitled to avoid all incumbrances imposed upon it since its creation, whether by the actual defaulter or by any of his predecessors.
5. I am of opinion that Mr. Justice Ghose's view of the law is correct.
6. The policy of the Regulation in this matter appears to me to be clear from a consideration of Section 3, Clause 2; of Section 11, Clauses 1 and 2; of Section 12; of Section 13 and of Section 15, Clause 2. From these sections I think it is obvious that the intention of the Legislature was that a sale under the Regulation should pass the entire rights and privileges attaching to the putni in the state in which it was originally created.
7. The preamble to the Regulation contains the following clause: 'It has accordingly been deemed necessary to regulate and define the nature of the property given and acquired on the creation of a putni taluk as above described, also to declare the legality of the practice of under-letting in the manner in which it has been exercised by putnidars and others, establishing at the same time such provisions as have appeared calculated to protect the under-lessee from any collusion of his immediate superior with the zemindar or other for his ruin, as well as to secure the just rights of the zemindar on the sale of any tenure under the stipulations of the original engagements entered into with him.'
8. By Section 3 of the Regulation, putni talukdars are declared to possess the right of letting out the lands composing their taluks in any manner they may deem most conducive to their interest, and any such engagements are declared to be legal and binding between the parties to the same, their heirs and assignees: 'Provided however that no such engagements shall operate to the prejudice of the right of the zemindar to hold the superior tenure answerable for any arrears of his rent, in the state in which he granted it and free of all incumbrance resulting from the act of his tenant.'
9. Section 11, Clause 1, declares that a taluk sold under the rules of the Regulation for arrears of rent is sold free of all incumbrances that may have accrued upon it by act of the defaulting proprietor, his representatives or assignees, and these words are emphasized by the addition of the following clause: 'No transfer by sale, gift or otherwise, no mortgage or other limited assignment, shall be permitted to bar the indefeasible right of the zemindar to hold the tenure of his creation answerable in the state in which he created it for the rent which is in fact his reserved property in the tenure, except the transfer or assignment should have been made with a condition to that effect under express authority obtained from such zemindar.'
10. Clause 2 of that section similarly declares that on the occasion of a sale of the putni for arrears all leases originating with the putnidar and creative of a middle interest between the resident cultivators and the late proprietor must be considered to be cancelled. 'The possessors of such interests must consequently lose the right to hold possession of the laud and to collect the rents of the ryots, this having been enjoyed merely in consequence of the defaulter's assignment of a certain portion of his own interest, the whole of which was liable for the rent.'
11. Section 12 limits the rule for the fall of under-tenures to the case of a sale of the putni for arrears, and declares that it does not apply to any private transfer by a talukdar of his own interest, nor to a public sale in execution of a decree, nor to the case of a relinquishment by the talukdar in favour of the zemindar, nor to any act originating with the former holder, other than default as aforesaid; all such operations involve only a transfer of the tenure in the state in which it may be held at the time and the new incumbent succeeds to no more than the reserved rights of the former tenant, such as they may be, and is of course subject to any restriction put upon the tenure by his act.
12. Section 13 lays down rules under which under-tenants may stay the sale, and so 'save their tenures from the ruin that, must attend such a sale.'
13. Section 15 of the Regulation prescribes rules for putting the purchaser in possession, and Clause 2 deals with the case of opposition on the part of the late incumbent, or the holders of tenures or assignments derived from him. In such case a proclamation may be issued by the Civil Court, declaring that 'the new incumbent having by purchase at a sale for arrears of rent due to the zemindar acquired the entire rights and privileges attaching to the tenure of the late talukdar in the state in which it was originally derived by him from the zemindar,' he alone will be recognised as entitled to make the zemindari collections.
14. In Section 11, Clause 1, the putni is declared to be 'sold free of all incumbrances that may have accrued upon it by act of the defaulting proprietor, his representatives or assigns.' Mr. Justice Rampini relies on these words as showing that it is only incumbrances created by the actual defaulter that can be avoided, but it seems to me, having regard to the general purport of the Regulation as set out above, that by the words 'defaulting proprietor' is meant the proprietor of the tenure in default, and that the words were not intended to be restricted to the particular proprietor for whose default the tenure was brought to sale, In truth, I am of opinion that the words were intended to bear the same meaning as was more fully and accurately expressed in Section 52 of Act XI of 1859, by which the purchaser of an estate, not permanently settled, sold for arrears of revenue, was declared entitled to avoid and annul all tenures which may have originated with 'the defaulter or his predecessors being representatives or assigns of the original engager.'
15. Similarly in Clause 2 of Section 11 of the Regulation, I am inclined to think that we must give a wide interpretation to the word 'defaulter,' so as to include his predecessors being representatives or assigns of the original putnidar.
16. The words 'late talukdar' in Section 15 must obviously be similarly construed.
17. As regards the decision of this Court upon which the Judge of the Lower Appellate Court and Mr. Justice RAMPINI rely, it appears that upon an application for review of judgment the view of the law taken therein was overruled. A copy of the judgment on review is annexed to this judgment*, and that case, therefore, so far from being an authority in favour of the respondents in this case, is a direct authority against them.
18. For these reasons I agree with the view of the law taken by Mr. Justice Ghose.
19. The decree of the Lower Appellate Court is accordingly set aside, and the case will be sent back to that Court for the trial of the other questions raised in appeal.
20. The appellants are entitled to the costs of this appeal.
* Special appeal No. 554 of 1863.
The judgment of the Court on the review was as follows : This was a suit by a putnidar against a tenant on his estate for enhancement of rent. The tenant alleged that he was not liable to enhancement, as he held the land at fixed rates which had not been changed from the Permanent Settlement. The Collector dismissed the claim, finding that the tenant had paid a fixed rate for twenty years and presuming from such payment that ho had paid at a fixed rate from the Permanent Settlement. On appeal the Judge also dismissed plaintiff's claim, but on another ground, viz., that the tenant held under a genuine istimrari-motiurari pottah of the year 1217.
A special appeal was preferred to this Court. The ground taken was that the pottah alluded to by the Judge had been granted by a former putnidar, who had defaulted, and whose putni was sold for arrears of rent, and after several such defaults and sales had finally come into the possession of the plaintiff by public sale; that under Section 11, Regulation VIII of 1819, the plaintiff purchased his putni, free of all incumbrances, and in the same condition in which that putni was created originally by the zemindar; that the tenant's pottah having been granted by a former putnidar was null and void as against the present putnidar, the plaintiff; and that the Judge was consequently in error in holding that the tenant's pottah barred the plaintiff's claim for enhancement.
The Court overruled this plea, declaring that under the wording of Section 11, Regulation VIII of 1819, a putnidar was empowered to cancel all incumbrances created by the defaulting proprietor only.
A review has been since admitted to reconsider this question.
Mr. Doyne, counsel for appellant, has argued that the effect of the law laid down by the Court will be to jeopardise the property of all putnidars; that although the wording of Section 11, Regulation VIII of 1819, may bear out the ruling which the Court previously arrived at, still that ruling is in direct opposition to the principle of the law as laid down both in the preamble and in the body of the Regulation, under which the right of the zemindar to hold the putni tenure answerable for any arrear of his rent in which he granted it and free of all incumbrances resulting from the act of the putnidar was distinctly and frequently declared; that upon this principle the provisions of Section 11 of the Regulation laid down that any putni tenure sold for arrears of rent is sold free of all incumbrances of sale, gift or otherwise; and that all leases originating with the holder of the former tenure were ipso facto cancelled with the special exceptions contained in the concluding clause in favour of khodkhast ryots and resident and hereditary cultivators. Mr. Doyne argued that the pottah put forward in this suit having been admitted by a former putnidar was consequently void from the circumstance of that putnidar having defaulted, and a sale having taken place for arrears of rent due on the putni.
The vakil for respondent, on the other hand, relied on the wording of the law which he stated was clear and unmistakeable, and which alluded only to such incumbrances as had been created by the defaulting proprietor, his representatives and assigns, and to such leases as had been created by the holder of the former tenure, as void. He contended that this could not be held to apply to any but the last defaulting putnidar.
After giving the subject our fullest consideration we are of opinion that, even under the wording of the law, the defendant's pottah, if an incumbrance or a lease not coming within the exceptions of Clause 3, Section 11, Regulation VIII of 1819, is not binding on the plaintiff. The law states that a putni taluk sold for arrears of rent is sold free of all incumbrances and leases to middlemen made by the defaulting proprietor. When the putnidar who, it is said, granted the defendant his lease defaulted and his putni was sold, that lease became then and there null and void. The new putnidar might recognise it, might receive rent under its terms, but it was under the law cancelled and remained cancelled until such time as the new putnidar renewed it or recognised it as good against him. Similarly as each succeeding putnidar defaulted-and in this case there appears to have been many such defaulting putnidars between the giver of the defendants' lease and the present plaintiff-the leases given by each putnidar, whether they were new leases or mere recognition of old leases, all fell to the ground when the last sale took place. An argument may be raised against this view of the law on the mere wording of the provisions of Section 11 of the Regulation, but when the wording is taken into consideration with the principles so frequently laid down in that law (see Sections 3 and 11), and upon which all incumbrances and leases are declared void, we think there can be no doubt that the effect of the law is at once to void all such incumbrances and leases upon a sale taking place, and that this effect is consequently applicable to the acts, not only of the last defaulting proprietor, but also of all previous defaulting proprietors. We therefore set aside the view of the law taken on the former hearing of this appeal.
But admitting that the pottah put forward by defendant is void, if it is a lease granted by a former defaulting putnidar to a tenant who is not a khodkhast ryot or a resident and hereditary cultivator and not at a fair rent when it was granted, it is still contended for the defendant that it is not such a lease, but that it is a pottah confirming an ancestral istimrari-mokurari lease which the defendant and his ancestors had held at fixed rates from the Permanent Settlement, and which they have similarly held at the same fixed rate from the date of the pottah to the present day. We have examined the terms of the pottah, and we find that the statement of the defendant is correct. The pottah is not a new lease created by the putnidar who gave it. The pottah bears evidence that the lease had been then in existence for at least one generation; that it was in 1217 an ancestral perpetual lease at a fixed rate of rent; and that the former putnidar did not create it, but merely confirmed it. The plaintiff cannot void his lease under Regulation VIII of 1819, unless it is shown to have been created by a former putnidar. In the absence of any proof to that effect the provisions of Act X of 1859 will apply, and the pottah is itself convincing evidence that for more than fifty years the defendant and his ancestors have held this land at a fixed rate of rent. The plaintiff's claim to enhance rent cannot therefore be admitted. The Judge was right in dismissing the appeal made to him. We also dismiss the plaintiff's appeal with all coats and interest.