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AlimuddIn Khan Vs. Hira Lall Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal87
AppellantAlimuddIn Khan
RespondentHira Lall Sen and ors.
Cases ReferredDhoronidhur Sen v. Wajirfunnissa Khatoon I.L.R.
Excerpt:
land registration act (bengal act vii of 1876), sections, 78, 79 and 81 - suit for arrears of rent--unregistered proprietor--bengal tenancy act (viii of 1885), sections 60, 61, 62--act xxvii of 1860,section 2--guardians and wards act (xl of 1858)--succession certificate act (vii of 1889), section 4--transfer of property act (ivof 1882), section 131. - w. comer petheram, c.j.1. the two questions which have been referred to this bench do not depend on the same considerations, and i prefer to answer the second before the first.2. if the plaintiff in the case of dhoronidhur sen v. wajidunnissa i.l.r. 16 cal. 708 had, when he brought his suit, a cause of action against the defendant, which he was then entitled to enforce against him, but the evidence to enable him to establish which was then, defective, because his title had not been registered, and if such defect of proof had been cured by registration before the final hearing, then i think the case of dhoronidhnr sen v. wajidunnissa khatoon i.l.r. 16 cal. 708 was wrongly decided. if, on the other hand, the plaintiff had no cause of action against the defendant, which, when he brought his.....
Judgment:

W. Comer Petheram, C.J.

1. The two questions which have been referred to this Bench do not depend on the same considerations, and I prefer to answer the second before the first.

2. If the plaintiff in the case of Dhoronidhur Sen v. Wajidunnissa I.L.R. 16 Cal. 708 had, when he brought his suit, a cause of action against the defendant, which he was then entitled to enforce against him, but the evidence to enable him to establish which was then, defective, because his title had not been registered, and if such defect of proof had been cured by registration before the final hearing, then I think the case of Dhoronidhnr Sen v. Wajidunnissa Khatoon I.L.R. 16 Cal. 708 was wrongly decided. If, on the other hand, the plaintiff had no cause of action against the defendant, which, when he brought his suit, he had the right to enforce by action against him, then in my opinion the case was rightly decided, as such a defect cannot be cured by anything which is done after the suit has been commenced.

3. The distinction has long been well known, and was recognized by Malins, V.C., in the case of Hassall v. Wright 10 Eq. L.R. 509, in which he drew a distinction between the English Copyright Act, by which it is provided that 'until registration of the copyright, no person interested shall be able to maintain any suit at law or in equity,' and the Patent Law Amendment Act, which simply enacts that, 'until an entry has been made, the grantee or grantees of the Letters Patent shall be deemed, and taken to be, the sole and exclusive proprietor or proprietors of the Letters Patent.' See also Lucas v. Dixon L.R. 22 Q.B.D. 357.

4. The property in respect of which the dispute arose in the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. 16 Cal. 708 was in the Mofussil, and the provisions of the Bengal Tenancy Act apply to that case.

5. If Section 78 of Act VII of 1876 be read alone, it may no doubt be contended that its only effect is to limit the mode in which the plaintiff can prove his title; but it must be read together with Sections 79 and 81 of the same Act, and for the purpose of this question, together with Section 60 of the Bengal Tenancy Act. When this is done, it is evident that, so far from the plaintiff having had any cause of action against the defendant when he brought his suit which he was then entitled to enforce against him, the right to recover this rent was at that time vested in another person, who could himself enforce his claim by suit, and to whose suit the right of the unregistered proprietor, though well established, would afford no answer; his remedy being, in my opinion, that, and that only, which is recognized and kept alive by Section 81 of the Land Registration Act.

6. If the decision in the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. 16 Cal. 708, is overruled, the position of the tenant, who is one of the persons for whose benefit, we are told, this legislation was intended, will be this : He will be liable to be sued for the same rent by two persons at the same time, in separate actions, to neither of which can he, at the time the actions are commenced, have any answer. If he is well advised by a skilful lawyer, he may not be compelled to pay the rent more than once, and if at the same time the actions are brought he is prepared with the whole rent and the necessary fee, it may be that he may escape further annoyance, by paying the money into Court, under Section 61 of the Tenancy Act, but in any case he is fairly certain to have to pay his own costs, at least, of both actions, and if he deposits the rent in Court, he must pay the fee under Section 62 as well.

7. I do not think the Legislature intended to place a perfectly blameless person in such an unfortunate predicament.

8. It may be the case that the law may at times work hardship, and sometimes even cause the actual loss of the rent, as it may become barred by limitation before registration has been effected, but I do not think that is any reason why we should refuse to give effect to what is, in my opinion, the plain meaning of the words used by the Legislature.

9. My answer to the second question is that, in my opinion, the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. 16 Cal. 708, was rightly decided.

10. The property, in respect of which the first question arises, is situated in Calcutta, to which place the Bengal Tenancy Act does not apply, and that question must be decided on the group of sections of the Land Registration Act, of which Section 78 is one. That section provides that no person shall be bound to pay rent to an unregistered proprietor, and if the section stood alone, there would be some ground for the contention that its meaning was that no decree for rent should be given in favour of any person whose name was not registered as proprietor, and that the defect would be cured, if the necessary proof were forthcoming at the trial. But Section 79 provides that the receipt of the person whose name is registered as proprietor shall afford a full indemnity to any person who pays rent to him, and the consequence of this must be that if an unregistered proprietor sues a tenant of the land for the rent, the tenant can discharge his liability by paying the rent to a third person, whose receipt would be a valid discharge as against the plaintiff, though his suit was actually pending when the money was paid, and though he knew of and objected to the payment, and this, notwithstanding the fact that the plaintiff, although he must fail in that suit, and may be ordered to pay the costs of it to the tenant-defendant, was entitled to get the money from the person to whom the tenant had paid it by action against him, under the provisions of Section 81. This, in my opinion, is altogether inconsistent with the supposition that the new proprietor had any right or cause of action against the tenant before registration. If this is the case, it must follow that the defect, which existed at the time when the suit was brought, was not one of proof only, and could not be cured by anything which took place between the institution of the suit and the trial.

11. My answer to the first question referred to this Bench is that the suit brought by the plaintiff should be dismissed, if Section 78 applies to the case at all.

Prinsep, J.

12. These points must be separately tried, since, as has been pointed out, the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. 16 Cal. 708 may be held to depend on the terms of Section 60 of the Bengal Tenancy Act, which is not applicable to the Court of Small Causes in Calcutta. The report does not show that the judgment proceeded on a consideration of that Act.

13. In this case the plaintiff is an unregistered proprietor of an estate in Calcutta who has sued the tenant-defendant for arrears of rent without having previously caused his name to be registered under the Land Registration Act (Bengal Act VII of 1876), but at the first hearing he has produced the certificate of registration which he obtained since bringing the suit. It has been objected that his suit should be dismissed by reason of Section 78 of the Land Registration Act of 1876.

14. Section 78 is to the following effect: 'No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under this Act.' The question, therefore, is whether under these terms an unregistered proprietor of an estate is absolutely debarred from bringing a suit for rent against a tenant, or whether, on the other hand, he is not debarred from bringing a suit, but is not entitled to obtain an order from the Court declaring that the tenant is liable for such rent, until he has caused his name to be duly registered, that is to say, whether, if in the course of such a suit, as in the case before us, he has produced a certificate of registration, the suit cannot proceed.

15. The object of the Land Registration Act, as shown by Mr. Hill from reference to previous legislation from 1793, is, on one hand, to afford protection to Government, on behalf of the public revenue, so as to facilitate the realization of revenue from proprietors of estates; and, on the other hand, to afford protection to such proprietors by registration of their titles on proof of their possession. It has been shown that in early legislation it was not contemplated to afford any protection to tenants by the process of registration, though no doubt under the terms of the Act of 1876, this matter has been expressly provided for in regard to their obtaining valid receipts for payments of rent which they might desire to make. Still the primary, and, indeed, the principal, object of the Act of 1876 is clearly to ensure registration. This is shown by the title of the Act and its preamble. It imposes an obligation on all proprietors, etc., of estates or revenue-free properties to apply for the registration of their names within six months from the date of succession to, or assumption of, charge of such property, and it imposes penalties of fine for the omission to apply for such registration. The Act further provides a procedure to be adopted on an application for registration and for inviting and determining objections raised to such an application.

16. Provision is also made for the proper decision of questions of difficulty that may arise, and which the Collector may find himself unable to decide. In such a case the Collector may refer the matter in dispute to the adjudication of the Civil Court, by whose order so obtained he is bound. It is also provided for the protection of the proprietors that the Collector shall be competent to appoint a Receiver, and the Civil Court a Curator, for the management of the estate pendente lite. But in no part of the Act do we find that the right of an unregistered proprietor is in any way questioned. It is, indeed, so far recognized that Section 68 declares that such a person shall be liable for the discharge of any duties and obligations which are by any law imposed upon proprietors of an estate, notwithstanding his omission to have his name duly registered.

17. We are then met by Section 78, the terms of which have been already set out. We have to determine in interpreting this section whether the right to bring a suit by an unregistered proprietor of an estate or revenue-free property is absolutely debarred, or whether, if the object of the Act cannot be fully obtained by a less severe interpretation which in many cases must result in injustice and loss of rent to an innocent but unregistered proprietor, that interpretation should not be adopted as expressing the real intention of the Legislature.

18. The following principles have been laid down for interpreting the general object of the Legislature: 'It is obvious that the intention which appears to be most agreeable to convenience, reason and justice should in all cases open to doubt be presumed to be the true one. An argument drawn from an inconvenience, it has been said (Co. Litt. 97 a) is forcible in law, and no less force is due to any drawn from an absurdity or an injustice.' (Maxwell on Statutes, 2nd Ed., page 230). But 'a construction which facilitated the evasion of a Statute would on similar grounds of inconvenience be avoided' (page 237).

19. The object of the Land Registration Act is to enforce registration; still the right of an unregistered proprietor exists and is recognized by that law. To ensure this object the intention of the Legislature in Section 78 was to put additional pressure on a proprietor to cause his name to be duly registered. We cannot find that it was in any way intended to deprive him of his right to the rent which, by succession, inheritance, or the acquisition by transfer inter vivos, he might have obtained. No doubt, the words of Section 78 are stringent, but it becomes necessary to consider whether, under the principles set out in Maxwell on Statutes, and having regard to the object of the Act, the Act should be construed as seeking to attain this object by means short of what is contended for, on behalf of the defendant, which would amount to what may be described as an outlawry of the plaintiff. There may no doubt be cases, on one hand, in which a proprietor, by an obstinate refusal to register, may have disentitled himself to any consideration; but, on the other hand, it must not be forgotten that there are many cases in which prompt registration may be absolutely impossible. In cases of this description a bond fide proprietor in possession of an estate, or portion of an estate, who may be in every sense entitled to the protection of the law may, by the construction contended for, that is, if he is disqualified from bringing a suit until he shall have caused his name to be registered, find himself debarred by the operation of the law of limitation from realizing back rents to which he may be justly entitled. The law allows him six months to apply for registration of his name, and yet if Section 78 be applied to its fullest extent, although he may in no sense have contravened the Act, and may even have applied for registration within that term, he may, through the operation of the law of limitation, lose his right to back rents, if being unregistered he is not able to file a suit so as to prevent limitation. This might be avoided in the case of a transfer inter vivos, for the new proprietor might, with the consent of his predecessor, use his name in bringing suits until he has obtained registration of his own name, but, in the case of a succession or inheritance through the death of the registered proprietor, realization of rent through the registered proprietor, or through payments to him by tenants as provided by Section 79, would be impossible. No protection is given for such a contingency. The appointment of a Receiver to collect the rents by the Collector can, under Section 56, be made only in the case of the application for registration being opposed. Even if an application for registration be made promptly and without any delay, the law requires an interval of not less than one month from-the date of publication of a notice calling for objections to the application, so that in no case would it be possible to obtain a certificate until at least two months from the right accruing to apply for a certificate, and meantime limitation would be running on, so as to bar many claims to rents justly due. A positive injustice would therefore be caused, if it were impossible for an unregistered proprietor to stop the operation of the law of limitation by instituting suits for rent which would become barred by any delay.

20. Now an interpretation of Section 78, less stringent than that contended for, would fully secure the object of the Act without in any way causing such a manifest injustice, and as this interpretation would prevent an injustice which the Legislature presumably did not contemplate, it should, in my opinion, be adopted.

21. The terms of Act XXVII of 1860, Section 2, are not unlike those of Section 78 of the Land Registration Act, 1876. It declares that 'no debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person or any part thereof, except on production of a certificate,' etc. Section 78 of the Land Registration Act, 1876, declares that 'no person shall be bound to pay rent' to an unregistered proprietor, &c;, but it does not provide that a voluntary payment shall not obtain a valid receipt if made to an unregistered proprietor with title. In neither case would an uncertificated creditor be able to obtain from a Court an order under which payment of the debt or rent could be obtained. But in both cases payment could be voluntarily made (though no doubt at some risk) if the debtor were satisfied of the right of the creditor to the particular debt. It has been held in numerous cases that a person claiming to collect debts due to a deceased person can institute a suit to recover them without a certificate under Act XXVII of 1860, though he is bound to obtain and exhibit that certificate before he is entitled to a decree. If, therefore, it is possible to ensure the object that the Legislature had in view, that is, to enforce registration and to prevent an unregistered proprietor from realising his rents, without causing injustice by arbitrarily depriving him of what arc his just dues, I think that we are bound to adopt that course as being that which must have been really contemplated by the Legislature.

22. The Succession Certificate Act of 1889 was, no doubt, drawn expressly to give effect to these payments, and to prevent the injustice, which a too rigid enforcement of the letter of the law might cause. The object of both Act XXVII of 1860 and the Succession Certificate Act of 1889 is the same as that of the Land Registration Act, 1876, to prevent the realization of money through the Courts until the prescribed certificate shall have been obtained. The assistance of the Courts is withheld until the necessary certificate shall have been obtained.

23. There is no reason to suppose that in the case of proprietors, etc., of estates or revenue-free properties, the Legislature desired to impose a more severe penalty in this respect, or to impose a penalty which, in many instances, must entail the loss of rents justly due to such landlords, leaving them at the same time without any means of protecting themselves, even though they may have carefully observed all the requirements of the Land Registration Act of 1876. If they disobey that Jaw by not applying for registration of their names within the prescribed term of six months, they are by Section 68 liable to a fine not exceeding one hundred rupees, and also to a daily fine in an amount not exceeding fifty rupees as may be imposed at the discretion of the Collector. Still so long as they comply with the law, it should not be possible, nor can we suppose that it was intended, that such persons should suffer, by the loss of rents justly due, from an inability to institute suits, so as to avoid the operation of the law of limitation.

24. It is nowhere declared by the Act of 1876 that a tenant who voluntarily pays to an unregistered landlord with a title to the property does not obtain a discharge by such payment. No doubt Section 79 provides that the receipt of any proprietor, etc., whose name, and the extent of whose interest is registered, shall afford full indemnity to any person paying rent to such proprietor, etc. A similar provision is made by Section 131 of the Transfer of Property Act for payment of a debt to the creditor without notice or knowledge of an assignment of it to a third person. Such a provision is made for the protection of the tenant or debtor, but it does not give to the payee the right to retain money so paid, or debar a suit by the person entitled to the money to recover it. Indeed, Section 81 of the Land Registration Act contemplates the recovery of a payment made under Section 79, for it declares that nothing in the three last preceding sections (including Section 79) shall be held to prevent any person deeming himself entitled to any sum of money from recovering such money by due process of law from any other person who has received the same. The law thus recognizes the right of an unregistered proprietor by enabling him to bring a suit to recover rent paid to the last registered proprietor whose title to the property has passed to him. It is not declared that a certificate of registration must be obtained before such a suit can be brought or a decree obtained. This would, however, come into effect only in the case of the transfer of a proprietary interest inter vivos. In the case of a succession or inheritance, no such payment could be made, as the last registered proprietor would be defunct.

25. There is nothing in Section 78 or Section 79 which takes away from the proprietor of an estate who may not have caused his name to be registered the right to any rent which is due or prevents him from receiving such rent direct from the tenants, nor does either section confer, upon the late proprietor whose name is still upon the register, a right to it. If, after transfer of his right, title and interest, in any estate, he receives rent from a tenant which is duo to his transferee, he is liable to account to that person for monies so received, but the law affords protection to the tenant making such a payment by providing that the receipt of the transferor, if he is a registered proprietor, etc., shall afford full indemnity to the tenant making such a payment of rent. As the right of an unregistered landlord is in no way questioned by the Act, but is rather recognized by Section 81, it seems to me that the object of the Legislature in enacting Section 78 was to place an impediment in the way of realization by such a person of rents due to him by depriving him of the right to a decree until he shall have fully complied with the law.

26. By such an interpretation of Section 78, the object of the law will be attained, and no injustice will be caused, whereas the more stringent interpretation contended for will undoubtedly result in constant cases of injustice by depriving innocent proprietors of rents to which they are in every way justly entitled. The more lenient interpretation is, moreover, in accordance with the principles on which the Courts have invariably proceeded, as have been set out in the passages from Maxwell on Statutes which I have quoted.

27. In the present case, therefore, the certificate having been obtained, the law has been satisfied, and the impediment being removed and the suit can proceed. It would be highly technical to require that this suit should be dismissed, because it was instituted by an unregistered proprietor, and yet that at the very next moment he should be in a position to institute a fresh suit on the same cause of action, provided that in the meantime his claim has not become barred by limitation. On these grounds I am of opinion that the certificate of registration having been produced when the suit came on for trial the trial before the Second Judge of the Small Cause Court can proceed.

28. I would add that, for the reasons stated, the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. 16 Cal. 708, is no bar to the trial being held by the Judge of the Small Cause Court, because that judgment cannot be maintained on the terms of the Land Registration Act, 1876. The Bengal Tenancy Act became law about nine years after the Land Registration Act, and it is stated that under that law the case was rightly decided, but that Act does not apply to Calcutta, and therefore it is unnecessary to consider that case from that point of view, so far as this reference is concerned. Mr. Hill, who appeared for the plaintiff, declined to argue that point, because it was unnecessary for the purposes of the reference before us in regard to the trial by the Judge of the Court of Small Causes of Calcutta. Beyond stating that the reasons which have been advanced for the correctness of that decision under the application of the Bengal Tenancy Act have failed to remove the doubts which I entertain, I desire to express no opinion on that point until it has been fully argued before me at the Bar.

Norris, J.

29. (after stating the facts of case, the reference by the Small Cause Court, and the questions referred to the Full Bench, continued).-The answer to be given to the first question depends, I think, upon the construction to be placed on Sections 78, 79 and 81 of the Act.

30. The material part of Section 78 is in these words: 'No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless, the name of such claimant shall have been registered under this Act.'

31. Section 79 provides that the receipt of any proprietor, manager or mortgagee, whose name, and the extent of whose interest, is registered under this Act, shall afford full indemnity to any person paying rent to such proprietor, manager or mortgagee.'

32. The material part of Section 81 runs as follows: 'Nothing in the three last preceding sections shall be held to prevent any person deeming himself entitled to any sum of money from recovering such sum by due process of law from any other person who has received the same.'

33. If Section 78 stood by itself I should say with little or no hesitation that registration of the claimant's name is nothing more than a link in the claim of proof, which, if the tenant defendant insists upon it, and not otherwise, the claimant must supply to entitle him to a decree; and this link might, I should think, be supplied at any time before the claimant's case was closed.

34. The words of Section 78, taken alone, do not say that a suit for rent by any unregistered proprietor shall be liable to dismissal on the ground of non-registration, nor do they say that such a suit shall be liable to dismissal unless the registered proprietor causes his name to be registered before the suit has been brought.

35. What the section says is that: 'No person shall be bound to pay, etc., unless the name of the claimant has been registered.'

36. To main object of the Land Registration Act, as of the repealed Regulations upon which it is based, were twofold : First to facilitate the collection of Government revenue, and second to fortify and prove the position of the registered proprietor.

37. To secure the first of these objects it was necessary to put pressure upon the proprietors to register. The chief pressure brought to bear is the infliction of severe penalties for non-registration : see Section 65. But there is another form of pressure, almost as formidable, and this is found in Section 78, which entitles a tenant sued for rent by an unregistered proprietor to put the claimant to proof of registration, and in default of such proof, if called for, to claim and obtain the dismissal of the suit. The tenant defendant is under no obligation to call for such proof. It he does not do so, and the claimant proves that he is the true owner, that the relationship of landlord and tenant between himself and the defendant exists, and that the rent sued for is due, he will be entitled to a decree.

38. No person is compellable (and I take it that 'bound' in Section 78 is equivalent to 'compellable') to pay rent or any other demand until a decree for the same has been passed against him. What will entitle a plaintiff to a decree is a matter of proof, the stringency or otherwise of which depends, as a general rule, upon the action of the defendant.

39. No doubt the question becomes a much more difficult one when we come to' consider the provisions of Sections 79 and 81.

40. The effect of Section 79 is that, if an unregistered proprietor sues a tenant for rent, the latter may defeat the claim, however just, by paying the rent to the registered proprietor and producing his receipt therefor. It is said that this state of things is inconsistent with the existence of a cause of action, for the rent sued for, in the unregistered proprietor, that he cannot maintain an action for it until he is registered; and that if it has been paid to the registered proprietor, and such registered proprietor was not in fact entitled to it, the unregistered proprietor's only remedy is to sue the registered proprietor.

41. With great respect and after much consideration I am unable to accept this view.

42. If a tenant owes rent he must be liable to pay it to some one. Some one must have a right to recover it, a cause of action in respect thereof. Is the cause of action in the registered proprietor or in the true owner who is unregistered? It must be in one of them.

43. What gives rise to a cause of action for rent? Surely, the fact that rent in due, and that the person claiming it is entitled to it by virtue of the relationship of landlord and tenant existing between the parties. The mere fact of registration does not establish the relationship of landlord and tenant. The Legislature has certainly not said in the Land Registration Act that registration by itself, without proof of the relationship of landlord and tenant, coupled with proof of rent being due, shall entitle the person registered to a decree for the rent sued for.

44. In Ram Kristo Dass v. Sheikh Harain I.L.R. 9 Cal. 517 : 12 C.L.R. 141 it was held that where a landlord who was registered as owner of the land in respect of which he claimed rent, sued the occupier for such rent, but was only able to prove the fact that he was the registered owner and was unable to show that the relationship of landlord and tenant existed, or that he had a good title to the estate of which he was the registered owner, the suit was rightly dismissed. O'Kinealy, J., before whom the case came in the first instance, says: 'It has been argued on second appeal that, inasmuch as the plaintiff' got his name registered in respect, of the taluk, the defendants holding the land wore bound to pay rent without any contract, express or implied, and that he could sue them for rent. I am aware of no authority for this proposition. If the relationship of landlord and tenant does not exist, I do not see how the plaintiff could sue the defendants as tenants.' The case was appealed under Section 15 of the Letters Patent, and was heard by GARTH, C.J., and MITTER, J. The learned Chief Justice, in delivering the judgment of the Court, says: 'The plaintiff is the registered owner of a revenue-paying estate under Bengal Act VII of 1876, and in this, and other analogous cases, he sues certain tenants of that estate to recover rent for the lands which they hold. And for the purposes of the question which we have to determine, we must assume that he has proved no title to the rent which he claims beyond the mere fact that he is the registered proprietor. The question is whether that fact alone entitles him to recover rent from the defendant. The Court of First Instance considered that it did, but the Subordinate Judge and the learned Judge of this Court have both decided against the plaintiff. He now appeals to us relying on the language of Section 78 of Act VII of 1876. That section says that, 'No person shall be bound to pay rent to any person claiming such rent as proprietor, or manager of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under this Act. It is contended that under the provisions of that section the registered owner of a revenue-paying estate has a right to sue the tenants for rent, although he has not entered into any contract with them, and although he cannot prove a good title to the estate of which he is the registered owner. We think that the section does not say or mean anything of the kind. It is true that the owner of the estate cannot sue for rent unless he is registered, but it by no moans follows that one who is not the true owner can sue because he is registered.

45. 'This point is very clear, and has been decided by this Court on several previous occasions. Speaking for myself, I heartily wish it were the law that the registered owner, and the registered owner only, was entitled to sue the tenants for rent; and that not only as regards revenue-paying, but all other, estates. Unfortunately, however, that is not the law at present, and we must therefore dismiss this appeal with costs.' I do not overlook the fact that the Chief Justice says, 'It is true that the owner of the estate cannot sue for rent unless he is registered;' the right of the true owner was not before the Court, no argument was addressed to it on the point, and the observations are quite obiter.

46. In my opinion the cause of action is in the unregistered true owner. Section 79 does not in my judgment take away that cause of action : it adds a new terror to the unregistered proprietor, while at the same time it relieves the tenant from being harassed by suits. Section 81 is, I think, intended to meet cases where a tenant of his own motion, without suit brought, has paid rent to the registered proprietor; and, it may be, cases in which the registered proprietor has obtained a lease against the tenant.

47. I would answer the first question referred to the Full Bench by saying that the suit may proceed.

48. The second question referred, whether the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. 16 Cal. 708 was rightly decided, was not argued before us. That was a mofussil case, and though no mention of the Bengal Tenancy Act is to be found in the judgments, it appears that Section 60 was, or might have been, applicable to it. The Bengal Tenancy Act has no application to the present suit, and a decision upon the proper construction to be put on Section 60 is wholly unnecessary for the purpose of determining whether the suit can proceed. I would answer the second question by saying that the case, as reported, is wrongly decided.

Ghose, J.

49. This is a suit for rent by an assignee of certain premises. The plaintiff had not, upon the date of the institution of the suit, got his name registered under the Land Registration Act (Bengal Act VII of 1876); but on the day of hearing produced the necessary certificate of registration which he had in the meantime obtained.

50. The property, in respect of which the suit for rent has been brought, is situate in the town of Calcutta, and therefore the provisions of the Bengal Tenancy Act have no application to this case; but it has been held by the learned Judges of this Court, to whom the case was submitted for opinion by the Small Cause Court, that the Land Registration Act is applicable. They were not, however, agreed upon the two questions which they have referred to the Full Bench, and they are : (after reading the questions the learned Judge continued.)

51. These two questions require separate consideration, because the property out of which the claim for rent arose in the case of Dhoronidhur Sen is situate in the Mofussil, and therefore the provisions of the Bengal Tenancy Act (section 60) would have to be considered before we could determine whether the said case was rightly decided, though no doubt there is no reference to that Act in the judgment itself, and the learned Counsel who appeared before us for the plaintiff declined to argue as to what might be the effect of Section 60 of the said Act, because that Act had no application in the present case, and as to the correctness or otherwise of the decision in the case of Dhoronidhur Sen. It seems to me that the second question referred to the Full Bench does not properly arise here, and therefore I refrain from answering it, and considering what may be the bearing and effect of Section 60 or any other provision in the Bengal Tenancy Act in this case.

52. The object of the Land Registration Act of 1876, as may well be gathered from the preamble and its various provisions, as also from the previous Regulations on the subject, seems to be three-fold-first, the protection of the revenue; second, the protection of the proprietors; and, third, the protection of the tenants. With these objects in view, the Legislature has adopted various' measures to ensure registration, and to prepare registers showing, among other matters, the name or names of the proprietors of revenue-paying and revenue-free properties and the extent of their respective interest. Sections 75 and 76 of the Act give all persons the liberty of obtaining an extract from any register mentioned in the Act. Section 77 provides that, when any change is made in the names of any recorded proprietor or manager of any property, or in the character or extent of the interest of any proprietor or manager as entered in the register, the Collector shall cause a notice of such change to be advertized. Section 78 then declares: 'No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under this Act.' Section 79 is as follows: 'The receipt of any proprietor, manager or' mortgagee, whose name and the extent of whose interest is registered under this Act, shall afford full indemnity to any person paying rent to such proprietor, manager or mortgagee.' Section 81 provides: 'Nothing contained in the three last preceding sections' (i.e. Sections 78, 79 and 80) 'shall be held to interfere with the conditions of any written contract, or to prevent any person deeming himself entitled to any sum of money from recovering such sum by due process of law from any other person who has received the same.'

53. The first question that presents itself to one's mind is, whether the Legislature intended that the right to the rent due from a tenant should be vested in the recorded proprietor, even though he has transferred his interest to another person; for, if that is so, there can be no question that the plaintiff in this case had no right to the rent, or any cause of action against the tenant, at the time of the institution of the suit. It will, however, be observed that the words of Section 78 are : No person shall be bound to pay rent to any person' who is not a recorded proprietor, but it does not declare that such payment, if made to the unrecorded but rightful owner, would not be a good payment in law, nor that the tenant shall be bound to pay the rent to the recorded proprietor, though, no doubt, Section 79 says that if he pays the rent to the recorded proprietor such payment shall operate as a full discharge. That section was evidently framed for the protection of the tenant, and it gives to the recorded proprietor the authority to give him a valid acquittance should he choose to pay to that individual the rent due; but I do not read it or any other provisions in the Land Registration Act as indicating that the Legislature meant to give to the recorded proprietor the right to compel payment of the rent by suit, if not paid by the tenant, or to declare that the right to the rent is in him. On the contrary, we find it laid down in Section 81 that, notwithstanding the provisions of Sections 78 to 80, the rightful owner of the money may recover it by suit from any other person who has received the same.

54. The view which I have just expressed seems to have been adopted by this Court in the case of Ram Krishto Dass v. Sheikh Harain I.L.R. 9 Cal. 517 : 12 C.L.R. 141, in which it was held that the mere fact of a person being registered as proprietor under the Land Registration Act is not sufficient to entitle him to recover the rent; and GARTH, C.J., in delivering the judgment of the Court, stated that the point had been decided by this Court on 'several previous occasions.' See also the case of Ram Bhushan Mahto v. Jebli Mahto I.L.R. 8 Cal. 853, where it was held that registration was no evidence of title.

55. I cannot persuade myself to hold, in the absence of any clearer or more definite provisions than those contained in the Land Registration Act, that the right to the rent is vested in law in a person simply because his name happens to continue in the Collector's register, notwithstanding that he has transferred his interest to another; and that the latter is not entitled to the rent, though the ownership in the property is in him, simply because he has not obtained registration of his name.

56. If the right to the rent is not in the person who has, by reason of the assignment of his interest to another, ceased to be proprietor, that right must be taken to be vested in the lawful owner of the property. And the question then arises whether he is entitled to institute a suit for recovery of the rent before his name is registered, or, in other words, whether his suit must be dismissed simply because he had not, upon the date of the institution of the suit, obtained registration of his name in the Collector's register.

57. There can be no doubt, I think, having regard to the language of Section 78, that the unrecorded proprietor cannot recover a decree for the rent before he gets his name registered. But that is a very different thing from holding that he cannot institute a suit for the purpose of obtaining that relief, and that his suit must be dismissed, though he may produce the certificate of registration on the day of trial.

58. There are various statutes in this country and in England in which a clear distinction is found to exist between the right to maintain a suit and the right to obtain a particular relief. I need only refer to some of them. Section 3 of the Act XL of 1858 enacted that, 'No person shall be entitled to institute or defend a suit connected with the estate of which he claims the charge, until he shall have obtained such certificate.' Section 2 of Act XXVII of 1860 provides that no 'debtor shall be compelled in any Court to pay his debt except on the production of a certificate, &c.;' Section 4 of Act VII of 1889 provides that 'No Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased person, or to any part thereof, except on production by the person so claiming of a probate or letters of administration or a certificate granted under that Act.' Statute 5 and 6 Vic, Gap. 45, Section 24 (English Copyright Act) contains express language that 'until registration of the copyright, no person interested shall be able to maintain any suit at law or in equity.' Section 4 of the Statute of Frauds enacts that 'no action shall be brought without a memorandum, etc.' Statute 15 and 16 Vic, Cap. 83, Section 35 (Patent Law Amendment Act) provides that 'untill such entry has been made, the grantee or grantees of the Letters Patent shall be deemed and taken to be the sole and exclusive proprietor or proprietors of such Letters Patent, etc.' It has been held in several cases bearing upon the provisions of Act XXVII of 1860, that it is not an imperative condition to the institution of a suit for recovery of a debt due to a deceased person, that the representative should first obtain a certificate; and further that he would be entitled to a decree if such certificate is produced at the trial. See Govindappah v. Kondappah 6 Mad. H.C. Hep. 131, Lachmin v. Ganga Prasad I.L.R. 4 All. 485, Hoti hall v. Hardeo I.L.R. 5 All. 212, and Janaki Ballav Sen v. Mahomed Ali Ahan I.L.R. 13 Cal. 47. And in the case of Hassall v. Wright L.R. 10 Eq. 509, with reference to Section 35, Cap. 83, 15 and 16 Vic, Malins, V.C., held that the assignee might maintain a suit against the assignor and the subsequent licensees to restrain them from using the Patent, although at the time of the institution of the suit the assignment had not been, but had subsequently been, registered.

59. I am disposed to think that the effect of Sections 78 and 79 of the Registration Act is not to debar the unregistered assignee of the property from instituting a suit for the rent, but simply to put an impediment in the way of his recovering a decree for the rent until he has obtained registration of his name.

60. No doubt, inconvenience or hardship, to some extent, might accrue to the tenant if both the registered and the unregistered proprietor were allowed to maintain a suit at one and the same time, but there can be no doubt that the Court will make a decree only in favour of the party found to be rightfully entitled to recover the rent claimed; and it seems to me that if the tenant's conduct is blameless the Court in making the decree will see its. duty to award to the tenant such costs as he may be justly entitled to.

61. For these reasons I would answer the first question referred to the Full Bench in the affirmative.

Beverley, J.

62. I agree with the learned Chief Justice as to the answers that should be given to both the questions that have been referred to the Full Bench.

63. It seems to me to be clear, from the wording of Sections 78, 79 and 81 of the Act, that an unregistered proprietor, manager or mortgagee of an estate, has no cause of action upon which he can institute a suit for the rent.

No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under-this Act.

The receipt of any proprietor, manager or mortgagee, whose name and the extent of whose interest is registered under this Act, shall afford full indemnity to any person paying rent to such proprietor, manager or mortgagee.

Nothing contained in the last sections shall be held to prevent any person deeming himself entitled to any sum of money from recovering the same by due process of law from any other person who has received the same.

64. When the Statute says that no tenant shall be bound to pay his rent to an unregistered proprietor, I think the plain meaning is that an unregistered proprietor has no cause of action for the rent, and that if a proprietor institutes a suit for the rent at a time when his name is not registered, the suit must be dismissed with costs. If this were not sufficiently clear from the wording of Section 78, it is to my mind made abundantly clear by Section 79 which indemnifies a tenant who pays his rent to a registered proprietor, etc., whether or not that registered proprietor be entitled to the rent, and by Section 81 which allows the person entitled to the rent to recover it as money had and received from the person who has received it.

65. It seems to me that the case is very similar to that of a purchaser of shares in a Joint Stock Company, who has omitted to register the deed of transfer. If after the purchase a dividend is declared, the unregistered purchaser has no cause of action against the Company to share in that dividend, and if he brought a suit against the Company for that purpose, his title could not be perfected by subsequent registration, but the suit must be dismissed, though he might recover the amount of the dividend as money received to his use from his vendor. I am myself unable to appreciate the inconvenience which it is said will result from this interpretation of the Statute, but even if it should, in some cases, be attended with inconvenience, that circumstance is not, in my opinion, a sufficient reason for not giving effect to what upon the wording of the Statute would seem to be the obvious intention of the Legislature.

66. Reference was made in the course of the argument to Act XXVII of 1860 and to certain decisions under that Act to which I was a party. But it may be pointed out that the wording of Section 2 of that Act was very different from that of Section 78 of Bengal Act VII of 1876.

67. Section 2 of Act XXVII of 1860 ran as follows: 'No debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person or any part thereof except on the production of a certificate to be obtained in manner hereinafter mentioned, or of a probate or letters of administration, unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives and not from any reasonable doubt as to the party entitled.'

68. Under that section it was held that the representative of a deceased person might institute a suit for a debt due to the estate of the deceased before he had obtained a certificate, but that a certificate must be produced before the Court could grant relief, unless such certificate were dispensed with, in the discretion given to the Court.

69. This view of the law has been adopted in Section 4 of the Succession Certificate Act (Act VII of 1889), the wording of which is also very different from that of Section 78 of the Land Registration Act.

70. Section 3 of Act XL of 1858 again was differently worded:

Every person who shall claim a right to have charge of property in trust for a minor under a will or deed or by reason of nearness of kin or otherwise, may apply to the Civil Court for a certificate of administration, and no parson shall be entitled to institute or defend any suit connected with the estate of which he claims the charge until he shall have obtained such certificate. Provided that, when the property is of small value, or for any other sufficient reason, any Court having jurisdiction may allow any relative of a minor to institute or defend a suit on his behalf, although a certificate of administration has not been granted to such relative.

71. Under that section the Court had a discretion to allow the suit to proceed without a. certificate, and I am not aware of any case in which the Court refused to dispense with the certificate, but allowed the suit to proceed on the understanding that the necessary certificate would be produced in the course of the proceedings.

72. By the two Acts just referred to, the assistance of the Court is refused to certain classes of suitors unless certain prescribed formalities are complied with, that is to say, unless the proof of title required by the Act is forthcoming. But the provision in the Land Registration Act goes much further. It does, not say that a proprietor shall not be entitled to sue for, or recover, rent in a Court of Justice without proof of registration, but it enacts that no tenant is bound to pay an unregistered proprietor, the meaning of which is that no cause of action arises from the omission to pay, and that the unregistered proprietor has no right in respect of which he can ask the Court to grant him relief.

73. My answer to the first question referred to us, therefore, would be that the suit should be dismissed, if Section 78 of the Land Registration Act applied to it, but as in this case there is a written lease, and as Section 81 says that nothing in Section 78 shall be held to interfere with the conditions of any written contract, I am unable to say that Section 78 applies.

74. As regards the second question, it seems probable that Section 60 of the Bengal Tenancy Act was applicable to the case of Dhoronidhur Sen v. Wajirfunnissa Khatoon I.L.R. 16 Cal. 708, but it does not appear to have been relied on by the Judges who seem to have decided it solely upon the provisions of the Land Registration Act, and for the reasons given, I am of opinion that, upon that Act, it was rightly decided.


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