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Bromomoyi Dassi, Executrix to the Estate of Kishen Kishore Ghose Vs. Gyanada Kantho Roy Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal163
AppellantBromomoyi Dassi, Executrix to the Estate of Kishen Kishore Ghose
RespondentGyanada Kantho Roy Bahadur and ors.
Excerpt:
regulation viii of 1819, sections 5, 7 - putni tenure, transfer of, by sale--bengal tenancy act (viii of 1885), sections 13, 195 (e). - .....following the procedure provided in section 13 of the tenancy act instead of proceeding under the putni regulation, a procedure which is clearly in derogation of the right of the zamindar under regulation viii of 1819 to have the transfer registered in her books in accordance with the rules therein laid down, and which, therefore, affects an enactment which is specially saved from the operation of the bengal tenancy act by section 195 (e) of that act.6. we think, therefore, that section 13 of the tenancy act does not apply to the present case, and that the rules laid down in regulation viii of 1819 ought to have been observed by the purchaser, and as they have not been observed, the plaintiff is entitled to a decree against the defendants.7. the result is that although we are unable to.....
Judgment:

W. Comer Petheram, C.J.

1. This is a suit for arrears of tent of a putni taluk from Kartick 1293 to Agrahan 1294, that is, for fourteen months, and the amount, claimed, including cesses and interest, is Rs. 12,541-14-5.

2. The defence, so far as it is material in the present appeal, is that the interest of the defendants in the putni was sold in execution of a decree on the 12th Falgoon 1293 and was purchased by one Bromomoyi Chowdhurani, who, by virtue of her purchase, obtained possession of the putni and deposited in Court what is called the landlord's fee, and the farther fee for service of notice of the sale on the landlord as required by the Bengal Tenancy Act, that this notice was duly served on the plaintiff, and that, under these circumstances, the defendants are not liable for the rent which has accrued subsequent to the sale. The Subordinate Judge who tried the case finds that the putni was sold on the 12th Falgoon 1293 in execution of a decree other than a decree for arrears of rant due in respect thereof, and that it was purchased by Bromomoyi Chowdhurani who seems to be in possession since her purchase. He also finds that the landlord's fee and the further fee for service of notice of sale on him have been paid into Court by the purchaser as required by Section 13 of the Bengal Tenancy Act, but he considers that this is not sufficient to relieve the purchaser from all responsibility in the matter, or to compel the plaintiff to recognize her as her tenant, because there is no evidence to prove plaintiff has received notice of the deposit, and further, because the provisions of Section 15 of the Bengal Tenancy Act have not been complied with. He therefore holds that the defendants are liable for the rent, and has accordingly decreed the claim in full. The defendants appealed and the learned Advocate-General on their behalf contends that as the purchaser of the putni has complied with the provisions of Section 13 of the Bengal Tenancy Act by paying into Court the landlord's fee and the further fee for service of notice of the sale on the landlord, and the sale has, in consequence, been confirmed under Section 312 of the Civil Procedure Code, the transfer of the putni tenure is complete, and therefore the plaintiff is bound to recognize that transfer, although it is not proved that she has received her fee and the notice of sale. On the other hand, Mr. Woodroffe, for the respondent, argues that Section 13 of the Bengal Tenancy Act has no application to the present case, because the rules to be observed on the transfer of a putni tenure are contained in Regulation VIII of 1819, which, being an enactment relating to putni tenures, is, under Section 195 (e) of the Bengal Tenancy Act, not affected by that Act, and as the rules of the Regulation as regards the registration of her purchase have in no wise been observed by the purchaser, the plaintiff is not bound to recognize her as her tenant, but has a right to recover arrears of rent from the defendants, who are the heirs of the putnidar whose name is recorded in her books.

3. After carefully considering the matter, we think this argument is sound. The first question to be decided is whether Regulation VIII of 1819 is applicable to the present case. Now Section 5 of Regulation VIII of 1819 provides as follows: 'The right of alienation having been declared to vest in the holder of a putni taluk, it shall not be competent to the zamindar or other superior to refuse to register and otherwise to give effect to such alienations, by discharging the party transferring his interest from personal responsibility, and by accepting the engagements of the transferee. In conformity, however, with established usage, the zamindar or other superior shall be entitled to exact a fee upon every such alienation; and the rate of the said fee is hereby fixed at two per cent, on the jumma or annual rent of the interest transferred until the same shall amount to Rs. 100, which sum shall be the maximum of any fee to be exacted on this account. The zamindar shall also be entitled to demand substantial security from the transferee or purchaser, to the amount of half the jumma or yearly rent payable to him from the tenure transferred, the condition of furnishing such security on requisition being understood to be one of the original liabilities of the tenure. The above rules shall apply equally to the case of a sale made in execution of a decree or judgment of Court as to all other alienations.' And Section 6 lays down that 'it shall be competent to the zamindar or other superior to refuse the registry of any transfer until the fee above stipulated be paid, and until substantial security to the amount specified be tendered and accepted.' Having regard to these provisions it seems to us that the purchaser in the present case ought to have applied to the zemindar to register the transfer of the tenure, and, at the same time, to have paid or tendered the prescribed fee, and had she done so and also furnished the security which the zamindar was entitled to demand, the zamindar could not have refused to register the transfer. The purchaser, however, did nothing of the kind, and therefore the zamindar was not bound to register the transfer or recognise the purchaser as the tenant, and, under these circumstances, we think the plaintiff has still a right to look to the ostensible tenants, that is, to the defendants in the present suit, for her rent. The learned Advocate-General has drawn our attention to Section 7 of Regulation VIII of 1819, which lays down a particular procedure to be followed by the zamindar, when the putni has been sold in execution of a judgment of Court (as in the present case), if the rules of Section 5 have not been complied with by the purchaser, and (assuming that this Regulation applies to the present case) he contends that this is the procedure which the plaintiff ought to have adopted. We think, however, that even allowing that the plaintiff had notice of the sale, which it does not appear she had, it was not obligatory on her to proceed in the manner provided by Section 7. We think the plaintiff had two courses open to her: she could either refuse to recognise the transfer and the purchaser as her tenant until the rules laid down in Section 5 had been complied with by her, or she could take proceedings under Section 7. She had chosen the former course, which, having regard to the provisions of the Regulation, we think she had a legal right to do.

4. There remains the question whether Section 13 of the Bengal Tenancy Act has any application to the present case. If it has, then this curious state of things will arise that, under the enactments at present in force, (Regulation VIII of 1819, has not been repealed), there will be two totally different systems of registration of certain transfers of putni tenures. The Bengal Tenancy Act has introduced what may be called a system of public and official registry of transfers of permanent tenures under which the landlords' fee has to be paid to and the notice of transfer to be served on him through the medium of the District Collector, while under the law relating to putni tenures the registration of transfers is of a private nature as it has to be made in the sherista of the zamindar, and the prescribed fee has to be paid or tendered directly to him without the intervention of any public officer.

5. If this dual system be in force, then the purchaser, in the present case, would have the option of following the procedure provided in Section 13 of the Tenancy Act instead of proceeding under the putni Regulation, a procedure which is clearly in derogation of the right of the zamindar under Regulation VIII of 1819 to have the transfer registered in her books in accordance with the rules therein laid down, and which, therefore, affects an enactment which is specially saved from the operation of the Bengal Tenancy Act by Section 195 (e) of that Act.

6. We think, therefore, that Section 13 of the Tenancy Act does not apply to the present case, and that the rules laid down in Regulation VIII of 1819 ought to have been observed by the purchaser, and as they have not been observed, the plaintiff is entitled to a decree against the defendants.

7. The result is that although we are unable to accept the reasons given by the learned Subordinate Judge for the conclusion he has arrived at, we think, for the reasons we have given, that the suit has been properly decreed, and therefore this appeal must be dismissed with costs.


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