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Abdul Aziz Vs. Kanthu Mallik - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal512
AppellantAbdul Aziz
RespondentKanthu Mallik
Cases Referred and Deohi Singh v. Lakshman Roy
Excerpt:
land registration - how far sections 78 and 81 of the land registration act (bene. vii of 1876) affect section 60 of the bengal tenancy act--estoppel--estoppel against act of legislature--land registration act (beng. vii of 1876), sections 78, 81--bengal tenancy act (viii of 1885), section 60. - .....was not entitled to realise any rent, as his name had not been registered under section 78 of the land registration act, and that, in any event, as the defendant had paid rent to mohinikanta, who had been duly registered, there was a complete defence to the claim of the plaintiff. the courts below have held that section 81 of the land registration act, though it qualifies section 78 of the same act, has no application to a case under section 60 of the bengal tenancy act, and that consequently it is open to the defendant to prove payment of rent to the registered proprietor and to plead that the plaintiff has consequently no enforceable right as against him.2. the plaintiff has assailed this decision on two grounds, namely, first, that as the defendant was inducted into the land by the.....
Judgment:

Mookerjee and Coxe, JJ.

1. We are invited in this Rule to set aside a decree by which the Court of appeal below in concurrence with the Court of first instance has dismissed a suit for rent. The plaintiff alleged that the disputed holdings are situated within Taluks Nos. 4424 and 4425, of which he is a part-proprietor; that on the 25th July 1892 and the 5th December 1893 the defendant executed two kabuliyats in his favour and was inducted into the land; that he consented to a decree for arrears for the year 1302, but that subsequently lie has attorned to one Mohinikanta and withheld rent for the years 1312 to 1314. The defendant resisted the claim broadly on the ground that the plaintiff had no title to the property, that he was not entitled to realise any rent, as his name had not been registered under Section 78 of the Land Registration Act, and that, in any event, as the defendant had paid rent to Mohinikanta, who had been duly registered, there was a complete defence to the claim of the plaintiff. The Courts below have held that Section 81 of the Land Registration Act, though it qualifies Section 78 of the same Act, has no application to a case under Section 60 of the Bengal Tenancy Act, and that consequently it is open to the defendant to prove payment of rent to the registered proprietor and to plead that the plaintiff has consequently no enforceable right as against him.

2. The plaintiff has assailed this decision on two grounds, namely, first, that as the defendant was inducted into the land by the plaintiff, on the principle of estoppel, embodied in Section 116 of the Indian Evidence Act, the defendant cannot question the title of the plaintiff, and is therefore bound to pay him rent; and, secondly, that Section 60 of the Bengal Tenancy Act is qualified by the provisions of Section 81 of the Land Registration Act, and that the before the defendant is not entitled to prove payment of rent to the registered proprietor.

3. In so far as the first of these contentions is concerned, it is obvious that there is no substance in it, because it is well-settled that there can be no estoppel against an Act of the Legislature. In support of this proposition, reference may be made to the decision of the Madras High Court in The Madras Hindu Mutual Benefit Permanent Fund v. Ragava Chetti (1895) I.L.R. 19 Mad. 200, where Mr. Justice Subramania Ayyar relied upon Barrow's Case (1880) 14 Ch. D. 432, and Fairtitle v. Gilbert (1787) 2 T.R. 169. To the same effect is the decision of this Court in Jagabandhu Saha v. Radha Krishna Pal (1909) I.L.R. 36 Cale. 920. See also the observations of Maclean C.J. in Jogini Mohan Chatterjee v. Bhoot Nath Ghosal (1903) I.L.R. 31 Cale. 146, 149 and of Baron Parke in Hill v. The Manchester and Salford Water Works Co. (1831) 2 B. & Ad. 544, 553 see, further, Doe v. Ford (1835) 3 Ad. & El. 649, Doe v. Howells (1831) 2 B. & Ad. 744, Gas Light Co. v. Turner (1840) Bing. N.C. 324, Doe v. Hares (1833) 4 B. & Ad. 435 and Glasgow v. Independent Co. (1901) 2 I.R. 279, 311. We are therefore not prepared to accede to the argument of the learned Vakil for the petitioner that the principle of estoppel overrides the provisions of either Section 78 of the Land Registration Act or Section 60 of the Bengal Tenancy Act. The first contention of the petitioner therefore fails.

4. In so far as the second contention of the petitioner is concerned, it has been argued that Section 60 of the Bengal Tenancy Act is not applicable, first, because rent is claimed by the plaintiff, not as proprietor of an estate, but under the terms of an agreement between himself and the defendant; secondly, because Section 60 ought to be construed as subject to the same limitation as is imposed upon Section 78 of the Land Registration Act by Section 81 of that Act, and, thirdly, because the payment alleged to have been, made by the defendant was made as a matter of fact to a person registered, as proprietor in respect not of the entire superior interest, but of only a fractional share.

5. In so far as the first branch of this contention is concerned, there is no force in it. No doubt the plaintiff seeks to realise rent on the basis of a contractual obligation, but it is equally obvious that he claims rent as proprietor of two taluks.

6. In so far as the second branch of the contention is concerned, we are not prepared to accede to the argument that Section 60 is to be read subject to the limitation imposed by Section 81 of the Land Registration Act upon Section 78. Section 78 of the Land Registration Act provides that no person shall be bound to pay rent to any person claiming such rent as proprietor of an estate in respect of which he is required by the Act to cause his name to be registered, unless the name of such claimant shall have been registered under the Act. Section 81 then provides that nothing in the three preceding sections shall be held to interfere with the conditions of any written contract. It may be conceded, therefore, that the effect of the disability imposed upon the proprietor, who has failed to register his name under Section 78 of the Land Registration Act, ceases when that proprietor sues to recover rent under a registered instrument. Section 60 of the Bengal Tenancy Act, on the other hand, provides that, where rent is due to the proprietor of an estate, the receipt of the person registered under the Land Registration Act as proprietor shall fee a sufficient discharge for the rent. The question therefore narrows down to this - whether the protection which was intended to be afforded to the tenant under Section 60 of the Bengal Tenancy Act extends to a case where the plaintiff claims to recover rent under an instrument in writing. In our opinion it is reasonably plain that the restriction imposed by Section 81 upon Section 78 of the Land Registration Act cannot be incorporated by implication-into Section 60 of the Bengal Tenancy Act.

7. In so far as the third branch of the contention of the learned Vakil for the petitioner is concerned, we are of opinion that it cannot be maintained in. view of the decision of this Court in the cases of Parashmoni Dassi v. Nabokrishore Lahiri (1903) I.L.R. 30 Cale. 773 and Deohi Singh v. Lakshman Roy (1903) I.L.R. 30 Cale. 880. It was held 'in these cases that the Land Registration Act provides for the registration by proprietors of their, shares in an estate, but does not make it incumbent upon them to register their shares in specific mouzahs or portions of land within the estate. In other words, if a proprietor is registered in respect of a certain share in an estate, and then, by an amicable arrangement amongst the co-owners, becomes entitled to collect the whole rent in respect of a particular village included within the estate, the provisions of Section 78 of the Land Registration Act do not operate as a bar to the recovery of such rent. It may be observed that in the case before us there is no contest between two persons, both of whom are registered as proprietors under the Act. The plaintiff admittedly is not registered under the Land Registration Act. The person set up by the defendant as registered proprietor has his name registered in respect of certain shares. But it is alleged and proved that by amicable arrangement amongst the co-owners, that is, by amicable arrangement amongst the registered proprietors, this person is entitled to the whole rent of the taluk within which the disputed land is situated. What the precise position might have been if there had been a contest between two persons, both of whom were registered under the Act, need not be considered on the present occasion. It is sufficient to say that the plaintiff is not entitled to succeed as against the defendant, who, relying upon Section 60 of the Bengal Tenancy Act, has established that his debt has been discharged by payment of rent to the registered proprietor.

8. The result therefore is that the decree made by the Court below must be affirmed, and this Rule discharged, with costs. We assess the hearing fee at one gold mohur.


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