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Kamal Krishna Kundu Chowdhury Vs. Rai Kedar Nath Kundu Chowdhury Bahadur - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.34
AppellantKamal Krishna Kundu Chowdhury
RespondentRai Kedar Nath Kundu Chowdhury Bahadur
Cases ReferredSukliamoni Chowdhrani v. Ishan
Excerpt:
limitation act (xv of 1877), sections 6, 7, 8, 9 and 19 - acknowledgment of debt does not constitute novation of debt--court, duty of, to look to essential justice, not to matters of form--bengal tenancy act (viii of 1885), sections 65, 184, 185, 188, schedule iii, 2(b)--joint landlords--parchase of tenure by one of them, effect of--acknowledgment of liability need not state every legal consequence of thing acknowledged. - .....in respect of his liability on that date. this acknowledgment sets out in detail the amount or rent in arrears in respect of each of the four years l305 to 1308, as also cesses and inferest due. rupees 1,000 was paid on that day and the first defendant admitted his libility to pay rs. 54,207-5 annas 12 gundas. he subsequently found himself unable not only to pay any portion of this sum but also to discharge the rent as it accrued due. on the 23rd february 1905 the first defendant executed a conveyance of the 'darpatni in favour of the second defendant. it was stated in the deed that the transfer was made for a consideration of rs. 51,387, which amount was to be retained by the pur-chaser in order to satisfy the arrears of rent due to himself and to his uncle, the present respondent......
Judgment:

1. This appeal, which has been preferred on behalf of the second defendant in the Court below, is directed against a decree for balance of arrears of rent of a darpatni taluk. The circumstances under which the plaintiff preferred his claim he in a narrow compass and may be briefly described. The plaintiff-respondent and the second defendant-appellant, who are related as uncle and nephew, were the holders of the patni taluk Dhurmapota under the zemindary of the Maharaja of Burdwan. The first defendant held a darpatni under the paint in respect of which he had stipulated to pay an annual rent of Rs. 10,400 together with cesses and interest. He was unable to pay', rent regularly and in the beginning of 1902, a considerable sum of money was found due as arrears of rent. On the 11th April 1902, he executed an acknowledgment in respect of his liability on that date. This acknowledgment sets out in detail the amount or rent in arrears in respect of each of the four years l305 to 1308, as also cesses and inferest due. Rupees 1,000 was paid on that day and the first defendant admitted his libility to pay Rs. 54,207-5 annas 12 gundas. He subsequently found himself unable not only to pay any portion of this sum but also to discharge the rent as it accrued due. On the 23rd February 1905 the first defendant executed a conveyance of the 'darpatni in favour of the second defendant. It was stated in the deed that the transfer Was made for a consideration of Rs. 51,387, which amount was to be retained by the pur-chaser in order to satisfy the arrears of rent due to himself and to his uncle, the present respondent. The conveyance expressly recited that rent was due to the transferee as also to. his uncle, but no indication was given as to the amount actually in arrears. The document further stated that the transferor was to have no further concern, with the payment of arrears to the present-' respondent and that if the latter proceeded to recover his dues from him, the purchaser would be bound to indemnify the transferor. The purchaser who is now the appellant before this Court does not appear to have paid any portion of the dues of the respondent and on the 10th April ,1905 the latter Commenced this action against the original tenant, the first defendant and the co. sharer landlord purchaser, the second defendant for recovery of Rs. 54,052-7-1 in respect of the arrears due. The claim was resisted by both the defendants for various reasons. It is ' sufficient to state that the first defendant denied liability on the ground that he had transferred the property and that the transferee had undertaken to satisfy the arrears due the second defendant resisted the claim on the ground that the suit was one for money for: which ho could not be held personally liable, that the whole of the consideration money for the conveyance had been applied in satisfaction of his own dues, that' nothing was consequently available for...payment to the plaintiff, and that in no event could a decree be made against the tenure in Ms hands. The Subordinate Judge held that the first defendant was personally, liable for the entire debt, that the second defendant was personally liable only in respect of that portion of the claim which accrued due after his purchase, and that in respect of the remainder, the taluk in his : hands was liable. The second defendant has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed on four grounds, namely, first, that the suit is one for money in respect of the sum covered by the acknowledgment of the 11th April 1902 as also in respect of the claim for rent which accrued due after the acknowledgment inasmuch as no rent charge is sought to be expressly enforced; secondly, that as a substantial portion of the claim is based on the acknowledgment, no decree for rent with statutory consequences thereof could he made under the Bengal Tenancy Act, thirdly, that the terms of the acknowledgment were not sufficient to keep alive any rent charge which might other-wise be supposed to exist in favour of the plaintiff, and fourthly, that no decree could be made against the tenure in his hands for any portion of the claim which had accrued due before his purchase. It has been further pointed out that a clerical error was made by the Court be low in ascertaining the 'amount which had accrued due after the transfer to the appellant.

2. The first point taken on behalf of the appellant raises a two fold question, namely, first, whether the claim as laid in the plaint is one for recovery of rent or a mere money debt and secondly, if it is a claim for recovery of rent whether such a claim can be preferred by one of two joint landlords.

3. As regards the first branch of this contention, we wore invited by the learned Counsel for the appellant to hold that the plaint as framed is for the enforcement of a mere money claim. Stress was laid upon the circumstance that so far as the amount specified in the acknowledgment is concerned, it is claimed in one lump sum as if it was a money debt payable by the first defendant and further that interest is claimed not on the instalments of arrears of rent which the sum acknowledged to be due is composed, but upon the aggregate amount covered' by the acknowledgment. After a careful consideration of the arguments addressed to us, we feel no doubt whatever that it ought not to prevail. If we were to up hold it, we must take a very narrow and restricted view of the allegations in the plaint. The plaint taken as a whole makes it abundantly clear that the entire claim is in respect of the balance of rent due. The acknowledgment which is mentioned in the plaint is an acknowledgment of sums duo on account of rent and the copy of it which was filed with the plaint places the matter beyond all controversy. If the claim was intended to be really in respect of a debt personally payable by the first defendant, it is inconceivable that it could have been joined along with the remainder of the claim which is undoubtedly for rent and is recoverable by the sale of the tenure. The acknowledgment, we have already stated, expressly sets out that the sums due are on account of arrears of rent, It cannot be reasonably suggested that the acknowledgment constituted a novation, for, in the first place, it is difficult to appreciate why the landlords should accept a simple personal liability of the not very solvent tenant and abandon the substantial remedy against the tenure undoubtedly available to them at the time, and, in the second place, if it had been intended to create a new obligation by the acknowledgment in supersession of the original debt there would have boon some provision in it for payment of interest on the consolidated amount. Some stress was laid on the circumstance that in the plaint interest was claimed upon the consolidated amount mentioned in the acknowledgment and not upon the different instalments of which that sum is composed. This, however, as was admitted on the side of the respondent, is clearly an error, as the acknowledgment did not operate as a novation. As Lord Watson stated in the case of Tunjare Ramchandra Rau v. Vellyanadan Ponnusami 18 I.A. 37 : 14 M. 258 acknowledgment does not alter the quality of the debt. In that case, the question arose, whether interest was to run upon the aggregate sum mentioned in the acknowledgment from the date thereof or whether it was to be calculated at the original rate upon the debts of which this aggregate sum was composed. It was ruled by their Lordships of the Judicial Committee that as in order to elide the Limitation Act the defendants had given a written acknowledgment of an existing debt, it did not operate as a complete novation of the debt go as to entitle the creditor to insist on interest on the consolidated amount. It does not follow, therefore, by any means that because interest has been so claimed, the suit is for recovery not of the original arrears of rent but of a new debt. We must consequently hold upon the first branch of the contention of the appellant that the entire claim was intended to be for balance of arrears of rent, and that this is so, is fairly obvious from the plaint and acknowledgment taken together, It is well to bear in mind, as was observed by their Lordships of the Judicial Committee in the cases of Girdharee Singh v. Koolakul Singh 2 M.I.A. 344 : 6 W.R. 1 (P.C.) and Hunooman-persaud Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 (Note.) that we must look to the essential justice of the case and that substance and merits and not matters of form are to be kept constantly in view.

4. We now proceed to consider the second branch of the first contention of the appellant, which, in our opinion, is as groundless as the first branch. It was strenuously contended that the plaintiff as one of two. joint landlords cannot prefer a claim enforceable as rent. Now what are the events which had happened before this suit was instituted? In April 1902 when the acknowledgment was given by the first defendant, the plaintiff and the second defendant were the joint landlords and the acknowledgment was given in respect of the entire amount then due. to both of them. They continued to be joint landlords till the 23rd February 1905, on which date by reason of the purchase of the tenure by the second defendant; the plaintiff became the sole landlord, the rent, thenceforth recoverable by him being one-half of the original rent. The amount of the arrears due to the defendant by the original tenant was wiped out by the consideration of the conveyance. The result was that the only sum that was due at that time was recoverable by the plaintiff Who by reason of the transaction to which we referred became from that date the sole landlord. Under these circumstances it is manifest that the plaintiff was entitled to maintain an action for recovery of the balance of, rent due in arrears and to enforce his claim under the provisions of the Bengal Tenancy Act. In support of the view we take, it is sufficient to refer to the decision of their Lordships of the Judicial Committee in Pramada Nath Roy v. Ramani Kant Roy 351. A. 78 : 35 C. 331 : 7 C. L. J. 139 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 3 M.L.T. 151. In that case it was pointed out that a sharer whose co-sharers refused to join him as plaintiffs can bring them into the suit as defendants, and she for the whole rent of the tenure; this right remains in tact even though the co-sharers may have collected rent separately. In the case before us, the second defendant, who had purchased the tenure, could not very well join the plaintiff and bring an action against himself for recovery of rent by sale of the very property which ho had purchased, it would be a strange anomaly if the defendant by his own act of purchase of. the tenure, could in any way affect the remedy which the plaintiff possessed and might have enforced in the manner explained in the judgment of the Judicial Committee to which we have justreferred. it was quite competent, therefore, for the plaintiff to enforce his claim for recovery of the balance of rent due. We must, consequently, hold that the first contention of the appellant in both its branches completely fails.

5. The second ground taken on behalf of the appellant raises a question of some novelty which, so far as we can discover, has never been urged in any previous case and has not formed the subject of Judicial decision. It was seriously argued that if a claim was to be enforced as a claim for rent in the manner provided in the Bengal Tenancy Act, the suit must be commenced within the special period of limitation prescribed in. the third schedule and that if the plaintiff found it necessary to rely upon an acknowledgment the effect of which was to extend the period of limitation proscribed in the third schedule, the claim could be enforced only as ' a money claim, under the Civil Procedure Code. In our opinion there is no foundation whatever for this contention. Section 18i of the Bengal Tenancy Act provides for the special period of limitation sot out in detail in the third schedule. Section 185 then lays down that sections-7, 8 and 9 of the Limitation Act shall not apply to suits or applications mentioned in the preceding section and prescribes expressly that subject to the provisions of that chapter the provisions of the Indian Limitation Act shall apply to all suits, applications and appeals mentioned in the preceding section. It is clear, therefore, that Section 19 of the Limitation Act is applicable to suits for rent. We are unable to appreciate how in the face of these provisions it can be seriously contended that because a plaintiff finds it necessary to rely upon the provisions of Section 19 of the Limitation Act, a suit for rent loses its character as a suit of that description and must forthwith be treated as a suit for money. That Section 19 is applicable to proceedings under the rent law, has been firmly established for over thirty years. We need only refer to the decisions of this Court in Behari Lall Mookerjee v. Mungalanath Mookorjee 5 C. 110 : 4 C.L.J. 371; Rakhal Chandra Tewari v. Hemangini Debt 3 C.L.J. 347 and Harihar Lal v. Gunendar Pershad 9 C.W.N. 1025. The cases of Huro Pershad v. Gopal Das Butt 9 C.255 : 12 C.L.R. 129 : 9 I.A. 82; Burna Moyi Dassce v. Burma Moyi Chowdhurani 23 C. 191 and Kali Charan Bhowmik v. Harendra Lal Roy 4 C.L.J. 553 upon which reliance was placed by the learned Counsel for the appellant, do not in any way support his contention and are of no assistance in the decision of the question raised before us. On the other hand, Section 6 of the Limitation Act clearly shows that save as to the period of limitation, the other provisions of the Limitation Act are applicable to proceedings and suit under special or local laws [Golap Chand Nowlnckha v. Krishto Chunder Dass Biswas 5 C. 314; Khelter Mohun Cuckcrbutty v. Dinabashy Shaha 10 C. 265. We must hold, therefore, that although the plaintiff is obliged to rely upon Section 19 of the Limitation Act, his claim does not cease to be a claim for rent and its' quality is not altered in any way by reason of that circumstance. The second ground urged on behalf of the appellant cannot consequently be supported.

6. The third ground taken on behalf of the appellant is to the effect that in order to make the acknowledgment available, it must be shown that not merely a liability but the liability was expressly acknowledged. In other words, it was contended that as the first defendant in his acknowledgment did not. expressly state that the amount acknowledged to be due was realisable in the manner provided by the Bengal Tenancy Ant, the plaintiff is not entitled to recover the same except as a mere money debt. This contention is manifestly unfounded. What is required is that the acknowledgment must point with reasonable certainty not merely to a liability but the liability or that out of which it arises. As was pointed out by Lord Hobhouse in the judgment of the Judicial Committee in Sukliamoni Chowdhrani v. Ishan chunder Roy 25 I.A. 95 : 25 C. 844 : 2 C.W.N. 402 it is not required that an acknowledgment shall specify every legal consequence of the thing acknowledged. In that case, the defendant had acknowledged a joint debt. From that, it was held, followed the legal incidents of her position as joint-debtor with the plaintiff, one of which was that ho might sue her for contribution: in other words, although the acknowledgment in that case was not of the liability to be sued for contribution but merely a liability for joint debt payable to the creditor, the Judicial Committee held that this was sufficient to keep alive the right, between the two joint-debtors, of one to claim contribution against the other. In the case before us, the acknowledgment on the face of it describes the amount due as far arrears of rent. In our opinion, there is no room for doubt that this acknowledgment is sufficient to keep alive the right of the plaintiff to enforce the claim as a claim for rent under the Bengal Tenancy Act. The third ground taken on behalf of the appellant must be overruled as unsustainable.

7. The fourth ground taken on behalf of the appellant raises the question whether the tenure in his hands can be made liable for any portion of the claim which accrued duo before his conveyance. In our opinion there is only one answer possible to this question. Section 65 of the Bengal Tenancy Act provides that where the tenant is a permanent tenure-holder, ho shall not be liable to ejectment for arrears of rent but his tenure shall be liable to sale in execution of a decree and the rent shall be the first charge thereon. The rent which was in arrears on the 23rd February 1905 was the first charge on the tenure and when the second defendant purchased it, he took it subject to that charge. The plaintiff, therefore, is entitled to proceed against the tenure in execution of any decree that may be made in his favour., Hence, the fourth ground also completely fails.

8. It was suggested on behalf of the appellant that it was a great hardship on him that he should be rendered liable for rent which had accrued due before his purchase, as the property when he took it under his conveyance was not of sufficient value to cover the entire amount of arrears then due. In the view we take of the case, it is unnecessary to consider any question of possible hardship. But we must state that upon the materials on the record we are not satisfied that there is any real hardship at all upon the second defendant. No personal liability has been imposed upon him for rent which had accrued due antecedent to his purchase for that portion of the rent, the tenure has been made liable, and, in our opinion, justly liable. He was one of two joint landlords. The conveyance in his favour stated expressly that rent was in arrears not only so far as he himself but also in so far as his co-sharer was concerned. He must have been well aware of the total amount of arrears due. At any rate he might with ordinary deligence have discovered from his co-sharer the amount still due to the latter. The sum for which he purchased the property was a nominal one; it represented merely the amount of rent in arrears in his share. But it was suggested that from certain papers prepared by the Collector for a different purpose, the inference was reasonable that the property could not exceed Rs. 50,000 in value. We are not at all satisfied that this was so. The Collector appears to have valued a permanent tenure of the description now before us at ten times the annual rent. It would have been nearer the mark if he had valued it at 16, if not 20 times the annual value. It is not necessary, however, to pursue this enquiry further, because we are clearly of opinion that the property in the hands of the second defendant is liable to satisfy the claim of the plaintiff.

9. A question was suggested in the Court of first instance as well as in this Court, although it was not argued, as to the right of the plaintiff, to avail himself in any way of the undertaking given by the second defendant to the first defendant at the time of his purchase to satisfy all arrears of rent due to the plaintiff. The question may be one of considerable nicety, but as upon the grounds already stated the plaintiff is clearly entitled to the relief ho seeks, it is, not necessary to discuss this aspect of the case

10. The decree of the Court below, however, requires to be amended. It was pointed out that the sum of Rs. 591-2-3 for which the second defendant has been made personally liable to the plaintiff is erroneous and ought to be reduced by one-half. This is not contested on behalf of the respondent. The decree will, accordingly, be amended. Further, as we have already pointed out, interest was calculated in the plaint upon Rs. 54,207, the aggregate sum mentioned in the acknowledgment, whereas it ought to have been calculated upon the various instalments which went to make up this sum. If this alteration is made, the amount mentioned in the decree would have to be reduced by Rs. 1,703-11-0. This also will accordingly be done. Subject to these two variations, the decree of the Court below must be affirmed and this appeal dismissed with costs.


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