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Sm. Kamala Mayee Dasi Vs. Nibaran Chandra Pramanik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal431
AppellantSm. Kamala Mayee Dasi
RespondentNibaran Chandra Pramanik
Cases ReferredChandra Mohan v. Ram Narain
Excerpt:
- .....turns are that one dukhimoyi dasi had a tenancy under the defendant in respect of a piece of homestead land from before the transfer of property act. she was succeeded by her daughter basanta kumari who sold it to the plaintiff in 1924. the plaintiff having been dispossessed by the defendant who is the landlord brought the present suit for declaration of his title and for possession of the land. the defence pleaded that dukhimoyi had no right to the land as she was allowed to live there as a mere licensee. the trial court gave a decree to the plaintiff holding that on the pleadings the defendant could not raise the question of transferability of dukhimoyi's tenancy which he held was rightly transferred to the plaintiff. the learned subordinate judge in the appellate court held that.....
Judgment:

Suhrawardy, J.

1. This case has been placed before the Division Bench as it is said to involve a question of law on which there has been a divergence of opinion. The facts on which the question turns are that one Dukhimoyi Dasi had a tenancy under the defendant in respect of a piece of homestead land from before the Transfer of Property Act. She was succeeded by her daughter Basanta Kumari who sold it to the plaintiff in 1924. The plaintiff having been dispossessed by the defendant who is the landlord brought the present suit for declaration of his title and for possession of the land. The defence pleaded that Dukhimoyi had no right to the land as she was allowed to live there as a mere licensee. The trial Court gave a decree to the plaintiff holding that on the pleadings the defendant could not raise the question of transferability of Dukhimoyi's tenancy which he held was rightly transferred to the plaintiff. The learned Subordinate Judge in the appellate Court held that the defence sufficiently raised the issue of transferability of the tenancy and that under the law as it stood before the Transfer of Property Act Dukhi's tenancy which was a bastu one could not be transferred and hence the plaintiff acquired no title to it, and dismissed the plaintiff's suit.

2. It is argued before us in the first place that the defendant in the face of the written statement cannot question the transferability of the tenancy and if ho can, an opportunity should be given to the plaintiff to meet such a case. The written statement has been placed before us and we find that the defendant in para. 11 of it distinctly says that Dukhimoyi or Basanta Kumari had never any jamai right or any saleable right. The question of transferability having been thus raised the plaintiff had to meet the case set up by the defence. The plaintiff in any case has to establish his title before he gets a decree.

3. The real question on which this appeal turns is with regard to the correctness of the view of the Subordinate Judge that the tenancy in question which is a non-permanent one is not transferable. It 'cannot be questioned now as it has been settled by numerous authorities that non-permanent tenancies whether of homestead or of agricultural land created before the passing of the Transfer of Property Act are not transferable. Harinath Karmokar v. Raj Chandra Kar [1898] 12 C.W.N. 122 Ananda Mohan v. Gobind Chandra [19161 33 I. C. 565 Hanuman Prasad Singh v. Deo Charan Singh [1908] 7 C.L.J. 309 and Hiramoti Dassya v. Anuoda Prasad Ghosh [1908] 7 C.L.J. 553. This proposition has not been questioned before us but Mr. Roy for the appellant argues that there is a distinction between a tenancy of homestead and a tenancy for residential purpose according to 'the law as it existed before the Transfer of Property Act. In the former case it is undoubtedly true that the tenancy is not transferable, but in the latter case where it is for residential purposes, there is authority for holding that the tenancy is transferable. This distinction is attempted to be based upon a certain dictum of Sir Barnes Peacock, C. J., in the ease of Beni Madhab v. Joy Krishna (5). There the facts found were that the tenancy was created for building purposes; the tenants had built houses on the land which they had transferred and of which the vendors and their father were in possession for more than 35 years; that there were pucca buildings on the land; that it had descended from father to son and that the kabuliyat showed that the tenures were not merely of a temporary nature. It was observed that on these facts the tenancy was prima facie one for building purposes and as such assignable as well as heritable according to custom. It was also found that the custom of transferability of similar leases in the locality was proved. After mentioning all these facts and the conclusion to be drawn from them the learned Chief Justice observed:

Independently of this, speaking for myself, I should say that if one man grants a tenure to another for the purpose of living upon the land, that tenure in the absence of any evidence to the contrary would be assignable.

4. Unless this dictum is taken to relate to the sort of lease then under consideration it must be taken to be obiter, though entitled to respect as coming from that eminent Judge. Bani Madhab's case [1869] 7 Beng. L.R. 152 was followed shortly after without comment in Durga Prosad, Misser v. Brindaban Sookul [1869] 7 Beng L.R. 159. It has been however considered and questioned in subsequent cases. In the case of Madhu Sundar v. Kamini Kanta [1905] 32 Cal. 1023 (F.B.) Beni Madhab's case [1869] 7 Beng. L.R. 152 came for consideration and Maclean, C. J., observed:

There were no doubt, certain observations of Sir Barnes Peacock, O. J., which would give support to the appellants' contention. They were however unnecessary for the decision of the ease, and we doubt whether they accurately state the law as now understood in Bengal.

5. It was also considered and doubted in the referring judgment of Rampini, J., in the case of Nabu Mandal v. Cholim Mullick [1898] 25 Cal. 896 (F.B.) where all the previous authorities have been collected and considered: see Safar Ali v. Abdul Rashid Khan : AIR1924Cal1012 Sarada Kanta v. Nabin Chandra : AIR1927Cal39 and Raghunandan Singh v. Jadunandan Singh [1918] 3 Pat. L.J. 253. Reference has been made to some decisions in which it is said that the dictum of Sir Barnes Peacock above quoted was accepted as good law. In the case of Sulin Mohon v. Raj Krishna A.I.R. 1921 Cal. 582 Mookerjee, J., referred to the view expressed by Sir Barnes Peacock, G. J., in Beni Madhab's case [1869] 7 Beng. L.R. 152 and observed that the tenancy before him was not of the nature mentioned by the learned Chief Justice. Such observations in those cases cannot be held to follow the view as expressed by the learned Chief Justice in Beni Madhab's case [1869] 7 Beng. L.R. 152.

6. The law seems to be established that a tenancy which came into existence before the Transfer of Property Act was passed, whether it was of homestead or of agricultural lands is not transferable except by custom. But two exceptions have been engrafted on the rule by the case law on the subject: [1898] 12 C.W.N. 122 where the lease was for building and residential purposes or where as a matter of fact, pucca buildings were erected without objection by the {landlord and [1916] 33 I.C. 565 where the transferability has been proved by custom. None of these circumstances exists in the present case. The finding of the Subordinate Judge on which this elaborate argument has been built is that the tenancy was neither an agricultural nor a horticultural one but it was a bastu one for residence only. It has further been found that Dukhi and after her, her daughter lived there in huts and maintained themselves by Moiling milk. It was an ordinary tenancy for the tenant to live upon the land and carry on her profession which was different from that of a cultivator. Mr. Roy attempts to maintain that lease for homestead' means homestead of an agricultural tenant which would be nontransferable but the lease for purposes of residence would be transferable in view of the observation of Sir Barnes Peacock. In my judgment there is no authority for making a distinction between a lease for homestead and a lease for residential purposes. In fact the cases cited above and similar cases were all dealing with leases of ordinary homestead for residential purposes. A lease for homestead may be a lease for residential purposes of such a nature that the parties intended that pucca buildings might be built upon the land at some expense by the tenant and it is reasonable to deduce from this fact a contract which though not put into writing but was impliedly understood that the lessee would have a heritable and transferable right in the land. It attracts equity quite apart from the purposes of the lease.

7. Looking at the cases carefully it seems to ma that there is no actual conflict of recent decisions on the point. The dictum of Sir Barnes Peacock in Beni Madhab's case [1869] 7 Beng. L.R. 152 has been expressly dissented from and those cases in which it has been repeated are cases to which it did not apply. An unreported judgment in the case of Chandra Mohan v. Ram Narain [1913] 18 I.C.379 has been placed before us in which the learned Judges lay great stress upon the dictum of Sir Barnes Peacock in Beni Madhab's case [1869] 7 Beng. L.R. 152. I need not discuss that case as it is against the current of decisions in this Court which do not seem to have been cited and considered.

8. The view taken by the lower appellate Court is correct in law and must be upheld. This appeal is accordingly dismised with costs.

Graham, J.

9. I agree. My learned brother has referred to the authorities which have been cited and it is unnecessary for me to go over the same ground. It appears from the authorities, which have been referred to in the course of the argument, that it is the settled view of this Court that a bastu or homestead tenancy created before the passing of the Transfer of Property Act of 1882 is not transferable except by custom. No evidence of any such custom was adduced by the plaintiff. That being so, it seems to me that the decision of the Court of appeal below is right.


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