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Maharaj Bahadur Singh Vs. Nari Mollani and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal279,165Ind.Cas.1
AppellantMaharaj Bahadur Singh
RespondentNari Mollani and anr.
Cases ReferredForbes v. Maharaja Bahadur Singh
Excerpt:
- .....in chap. 14, ben. ten. act. the opposite party no. 1 had during the pendency of the said suit for rent transferred the entire holding to opposite party no. 2 by a registered instrument. the date of this transfer is 26th may 1934, corresponding to 12th jaistha 1341. in her written statement, filed on 28th june 1934, opposite party no. 1 stated that she had transferred the holding to opposite party no. 2. the petitioner knew of the transfer, but did not add opposite party no. 2 as a defendant in his suit for rent. the notice of the transfer prescribed by section 26-c, ben. ten. act, and the landlord's transfer fee did not, however, reach the petitioner before the decree in the said suit for rent.3. on 4th april 1935 opposite party no. 2 filed her claim under o 21, rule 58, civil p. c. it.....
Judgment:
ORDER

R.C. Mitter, J.

1. The question involved in this rule is whether the learned Munsif, Second Court, Rampurhat, had jurisdiction to entertain a claim preferred by opposite party No. 2, Dolejannessa Bibi under Order 21, Rule 58, Civil P. C., in Rent Execution Case No. 399 of 1935 started in that Court by the petitioner, Maharaja Bahadur Singh, against the opposite party No. 1, Nari Mollani. The learned Munsif entertained the same and allowed it.

2. On 17th April 1934 the petitioner instituted a suit for recovery of rent of an occupancy holding from opposite party No. 1 and one Radhika Prosad Mondal. The period for which rent was claimed in that suit ended with Chaitra 1340. Radhika pleaded that he had no interest in the holding at any time and the suit was dismissed against him on that footing. The Court however passed a decree against opposite party No. 1 on 30th January 1935. It is this decree which: was put into execution on 1st March 1935 in the aforesaid execution case under the special procedure provided for in Chap. 14, Ben. Ten. Act. The opposite party No. 1 had during the pendency of the said suit for rent transferred the entire holding to opposite party No. 2 by a registered instrument. The date of this transfer is 26th May 1934, corresponding to 12th Jaistha 1341. In her written statement, filed on 28th June 1934, opposite party No. 1 stated that she had transferred the holding to opposite party No. 2. The petitioner knew of the transfer, but did not add opposite party No. 2 as a defendant in his suit for rent. The notice of the transfer prescribed by Section 26-C, Ben. Ten. Act, and the landlord's transfer fee did not, however, reach the petitioner before the decree in the said suit for rent.

3. On 4th April 1935 opposite party No. 2 filed her claim under O 21, Rule 58, Civil P. C. It is admitted that if the decree which the petitioner obtained in his suit for rent was a rent decree within the meaning of the Bengal Tenancy Act, which could be executed under Chap. 14 of the said Act, the claim so preferred is not entertainable. The provisions of Section 170 (1), Ben Ten. Act, are clear on the point. If, however, it is a decree which cannot be executed under the procedure of Chap. 14 it is entertainable. The question in my judgment depends upon the question as to whether Section 65, Ben. Ten. Act, is attracted to the aforesaid decree. In Jintendra Nath v. Mon Mohan 1930 P C 193, Sir George Lowndes, in considering the effect of Section 170 (1), Ben. Ten. Act, made the following observations at p. 222 of the report:

The effect of this provision is that there cannot be an investigation in execution proceedings held under Chap. 14 of the Tenancy Act, of claims by third parties to an interest in the tenure . . . In their Lordships' view it is only arrears of rent that are charged by Section 65 upon, the tenure, and it is only such arrears, that can be realized in execution by sale of the tenure. Chap. 14 of the Act, does not purport to enlarge or restrict the exercise of this right, but only provides the machinery for working it out. If the landlord seeks to use this machinery for the recovery of something that is not rent, to the prejudice of a third party on whom the decree is not binding, it would be manifest injustice to deny him the right to object, and it would require very clear words in the Act to induce their Lordships to impose this penalty upon him.

4. In order to decide the question whether the decree for arrears of rent obtained by the petitioner charged the tenure, the position of opposite parties Nos. 1 and 2, on 26th May 1934, the date when the conveyance in favour of opposite party No. 2 was registered, must be considered. Section 26-B, Tenancy Act, has made occupancy holdings transferable. The manner in which such a holding can be transferred by act of parties is laid down in Section 26-C. The registering officer is not to admit to registration the conveyance till he is paid the landlord's transfer fee and the notice of transfer intended for service upon the landlord through the Collector is put in. On these two things being done he is to register the conveyance. In my opinion as soon as the document is registered the title to the holding passes from the transferor to the transferee with retrospective effect from the date of the execution of the conveyance; the question whether the landlord is served with the notice of transfer by the Collector or the Collector sends him the landlord's transfer fee or not is not material. It cannot be said the transfer is complete as against the landlord only when he receives the notice of transfer and his fees from the Collector. This principle has been laid down in connexion with transfers of permanent tenures under the provisions of Section 12, Tenancy Act, which provisions are pari materia with Sub-section 26-B and 26-C. Krista Bullav v. Kristolal Singh (1889) 16 Cal 642, Chintamoni Dutt v. Rash Behary Mondal (1892) 19 Cal 17 and Surapati Ray v. Rash Narayan Mukherjee 1923 P C 88 at pp. 161 to 162. Accordingly on 26th May 1934, opposite party No. 1 ceased to be the petitioner's tenant and opposite party No. 2 became his tenant, although both of them remained liable to pay the arrears of rent (if due) claimed by the petitioner in his suit. This position is clear from the definition of a tenant given in Section 3. A person is a tenant as long as he holds the land under another person; he ceases to be a tenant as soon as he sells away all the lands of his occupancy holding.

5. The position then is that at the date of the suit brought by petitioner opposite party No. 1 was his tenant, but at the date of the decree she had ceased to be his tenant. He ceased to represent the holding from 26th May 1934. The dedecree obtained cannot bind the opposite party No. 2; for, the doctrine of lis pendens does not apply. The petitioner's suit was to enforce a claim to a sum of money. In that suit no question of any' right to immoveable property was in question. As has been observed by my learned brother Mitter, J., ' a suit for rent ' in respect of an agricultural holding ' can hardly be regarded as a claim to charge specific property:' Jaynal Abedin v. Hyder Ali Khan 1928 Cal 441. A decree obtained for arrears of rent can only charge the holding under Section 65, Tenancy Act, if at its date the relationship of landlord and tenant between the plaintiff and the defendant subsists. In Forbes v. Maharaja Bahadur Singh 1914 P C 111, although the facts were that the plaintiff was the landlord who had parted with his zemindari before his suit for the arrears of rent which fell due when he was the landlord, the observations of the Judicial Committee are general. Mr. Amir Ali examined the whole law on the subject and came to the conclusion that the charge under Section 65 on a permanent tenure attaches only if at the date of the decree the relationship of landlord and tenant had continued. The Special Bench in Krishnapada Chatterjee v. Manada Sundari Ghosh 1932 Cal 321, has also interpreted Forbes v. Maharaja Bahadur Singh 1914 P C 111 to mean that. In my judgment the petitioner before me cannot take the aid of the machinery provided for the enforcement of what are really rent decrees which charge occupancy holdings-namely the provisions of Chap. 14-to which he is not entitled and thereby deprive the opposite party No. 2 from preferring a claim under Order 21, Rule 58, Civil P. C. I am cognizant of the fact that it may be contended that a landlord would be deprived of the security of the holding by the tenant selling the holding after the decree and just before its enforcement, but that is a question which I have not to decide in this case. Possibly the addition of the transferee, whose liability for the arrears of his vendor's time is declared by Section 146-A, Tenancy Act, in the execution proceedings would preserve the landlord's security. On the facts of this case where the opposite party No. 2 was not added to the rent suit inspite of the landlord's knowledge of the transfer, the principles laid down in Forbes' case (6) and Krishnapada Chatterjee's case (7) prevent me from taking the view that the claim of opposite party No. 2 was inadmissible.

6. The result is that this rule is discharged with costs. Hearing fee one gold mohur.


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