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Abdul Rahman Chowdhuri Vs. Ahmadar Rahman and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.554
AppellantAbdul Rahman Chowdhuri
RespondentAhmadar Rahman and ors.
Cases ReferredChundra Sakai v. Kali Prosonno Chuckerbutty
Excerpt:
bengal tenancy act (viii of 1885), section 161 - putni tenure, unregistered purchaser of, right of--incumbrance. - n.r. chatterjea, j.1. the plaintiff-appellant purchased a putni taluk at a sale held in execution of a decree for arrears of rent, and sued to recover possession of the lands in suit which were included in the taluk, from the defendants who were in possession thereof by purchase from the former putnidar. the courts below dismissed the suit on the ground that the purchases made by the defendants of portions of the putni were 'incumbranees' within the meaning of section 161, bengal tenancy act, which had not been annulled according to the provisions of section 167 of that act. the plaintiff has appealed to this court.2. before dealing with the above question, i will notice a point raised on behalf of the respondents, viz., that the landlord was bound to recognise the transfers of portions.....
Judgment:

N.R. Chatterjea, J.

1. The plaintiff-appellant purchased a putni taluk at a sale held in execution of a decree for arrears of rent, and sued to recover possession of the lands in suit which were included in the taluk, from the defendants who were in possession thereof by purchase from the former putnidar. The Courts below dismissed the suit on the ground that the purchases made by the defendants of portions of the putni were 'incumbranees' within the meaning of Section 161, Bengal Tenancy Act, which had not been annulled according to the provisions of Section 167 of that Act. The plaintiff has appealed to this Court.

2. Before dealing with the above question, I will notice a point raised on behalf of the respondents, viz., that the landlord was bound to recognise the transfers of portions of a permanent tenure, and the transferees not having been made parties to the rent suit, the sale held in execution of the decree for rent passed only the interest of the person who was a party to the decree. But the tenure in the present case is a putni tenure, and under the Putni Regulation, transfers of fractional portions of a putni taluk are not binding upon the zemindar, although the transferee acquires a valid title to the portion purchased. This is clear from Sections 5 and 6 of the Regulation, and if any authority were needed, I may refer to the decision of the Judicial Committee in Watson & Co. v. Collector of Zillah Rajshahye 12 W.R. (P.C.) 43 : 13 M.I.A. 160 : 3 B.L.R. (P.C.) 48 : 2 Suth. P.C.J. 269 : 2 Sar. P.C.J. 500 : 200 E.R. 511. The cases relied upon on behalf of the respondent do not support his contention. In Sourendra Mohan Tagore v. Surnomoyi 3 C.W.N. 38 : 26 C. 103, it was held that although the transferee of a fractional share of a putni cannot enforce registration of his name on payment of the necessary fee and tender of the requisite security, yet the transfer is not altogether void, and he is liable for rent severally and jointly with the registered tenant, if the landlord chooses to recognise him as one of the joint holders of the putni and he is also liable for the entire rent of the putni estate. The other case, Aosub Ali Pramanik v. Biseshuri 8 C.L.J. 554, also is to the same effect. These cases are no authorities for the proposition that the transfer of a share in putni, without the express consent of the Zemindar is binding upon him. They only lay down that the transferee is liable jointly with the registered putnidar if the landlord chooses to recognise him as one of the joint holders of the putni. In the present case, the zemindar did not recognize the transferees and he was not bound to do so. This contention must, therefore, be overruled.

3. The zemindar sued the registered putnidar for rent, and in execution of the decree for rent brought the tenure to sale, and the plaintiff purchased it with power to annul all incumbrances. The defendants were unregistered transferees of the putni, and the question is whether their interests were incumbrances within the meaning of Section 161 of the Bengal Tenancy Act.

4. Now the defendants being transferees of portions of the putni, their position was that of co-sharers of the former putnidar though not recognised by the landlord. The sale held in execution of the decree for arrears of rent against the recorded putnidar passed the tenure itself, and not merely the right, title and interest of the recorded putnidar. The recorded putnidar represented the ownership of the putni, and so far as the putni interest itself was concerned, the sale passed the interest of the transferees of the portions of the putni as much as it did that of the recorded putnidar.

5. Section 161 of the Bengal Tenancy Act lays down that for the purposes of Chapter XIV of that Act, the term 'incumbrance' used with reference to a tenancy 'means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding, or in limitation of his own interest therein, and not being a protected interest as defined in the last foregoing section (Section 160).' Now the right or interest created by the sale of a portion of the tenure itself is not a right or interest created by the tenant on the tenure, nor, do I think, is it a right or interest in limitation of his own interest therein.' The words his own interest therein' in the case of a tenure mean the interest of a tenure-holder; and the right or interest created must be in limitation of such interest, and not a transfer of the tenure holder's interest itself. By the sale of a portion of the tenure, the interest of the tenant in the tenure itself to the extent of the portion sold is transferred, and not an interest created in limitation of his own interest in the tenure. It is said that when a tenant transfers a part of his tenure, he does so in limitation of his interest, meaning thereby lift entire interest, in it. But the words 'in limitation of his own interest therein' would seem to indicate that it is not limitation in respect of the quantity or extent of interest which is contemplated and which could have been sufficiently expressed by saying 'his interest therein,' but has reference to limitation in respect of the particular interest held by the tenant.

6. The purchaser of a portion of the tenure professes to purchase and does purchase the ownership of the tenure itself to the extent of the portion purchased, and becomes a co-sharer of the original tenant. He is as much bound by the decree for rent as his vendor. He can maintain a suit for his share of the surplus proceeds of the sale held in execution of a decree for rent against the recorded tenant see Matangini Chaudhurani v. Sreenath Dass 7 C.W.N. 552. It is true a mortgagee can also do so, but a mortgagee can do so only as an incumbrancer and to the extent of his lien, whereas the purchaser of a portion of the tenure has right as a tenure-holder to the surplus sale-proceeds representing the portion purchased by him, because the sale is of the tenure including the portion purchased by him.

7. I think, therefore, that the words in limitation of his own interest therein do not refer to a sale of the tenure-holder's interest. As pointed out in Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229, the right created by a sale of a portion of the tenure itself is to that extent not in 'limitation,' but in 'extinction,' of the rights of the tenure-holder. If the sale of a portion of a tenure is an incumbrance, the sale of the whole tenure would also be an incumbrance, and the purchaser at a sale for arrears of rent would get nothing unless he takes steps within a year from the date of the sale to annul the interest of the private purchaser under Section 167, Bengal Tenancy Act. I do not think such a result was contemplated by the section.

8. I may in this connection refer to certain observations of Mookerjee, J., in Bhawani Koer v. Mathura Prasad 7 C.L.J. 1 at pp 20, 21, where one of the questions to be considered was, whether the interest of a person who has acquired by purchase the rights of the owner constitutes an 'incumbrance' within the meaning of Section 54 of Act XI of 1859. The learned Judge observed: 'It was not disputed, and in my opinion, it could not be reasonably disputed, that if a person acquires the interest of the original owner of the estate before the default is made, his interest cannot be said to be an incumbrance and passes by the sale to the purchaser, because what is sold is in essence his share in the estate,' and against 'a purchaser of the interest of the proprietor, after default and before the revenue sale, is quite as much bound by the revenue sale as the proprietor himself, because in substance, he occupies the position of the proprietor.' The observations were no doubt made in connection with the provisions of Section 54 of the Revenue Sale Law, which does not contain a definition of the word 'incumbrance' and I have referred to them only to show that the purchaser of the interest of the proprietor stands in the same position as the proprietor himself in relation to the sale.

9. We were referred to several cases, but none of them holds that a purchase of the tenure-holder's interest is an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act. In the case of Chundra Sakai v. Kali Prosonno Chuckerbutty 23 C. 254, it was held by Norris and Gordon, JJ., that an exchange of land is an incumbrance within the meaning of Section 161 of the 'Bengal Tenancy Act. Gordon, J., in delivering the judgment of the Court observed-'it seems to us that the exchange by which this land was acquired by the defendants was in limitation, if not in fact in destruction, of the original tenant's right in the holding.'

10. The case of an exchange may perhaps be distinguished from that of a sale, although the two stand on the same footing generally so far as the rights of the parties are concerned. A person who takes the land of a tenure by exchange, does not take it as a part of the tenure nor as a tenant. The tenant does not create an interest in the tenure itself as in the case of a sale, and in that view, it may possibly be said that he creates an interest in 'limitation' of his own interest in the tenure.

11. But if there is no distinction between an 'exchange' and a 'sale' so far as the present question is concerned, the view that an 'exchange' is in 'limitation' of the tenant's interest is opposed to that taken in Tamizuddin v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229, and if an exchange is in destruction' of the tenant's right it cannot be an 'incumbrance' within the meaning of Section 161 of the Bengal Tenancy Act. I have doubts about the correctness of the decision in the case of Chundra Sakai v. Kali Prosonno Chuckerbutty 23 C. 254 referred to above, and in any case, I think, it ought not to be extended further. In Jogeshwar Mazumdar v. Abed Mahomed 3 C.W.N. 13, there is an observation that a lease just as much as a sale, gift or mortgage must come within the word 'incumbrance.' In that case the learned Judges had only to deal with the question whether a lease' is an 'incumbrance' within the meaning of Section 11, Clause 3 of the Putni Regulation. It is true that under that Regulation, sales and gifts as well as mortgages and leases are treated as 'incumbrances.' But the word 'incumbrance' appears to have been used in that Regulation in a different sense, as it includes a sale of the entire putni itself. Besides, the purchaser, under Section 15 of that Regulation, is entitled on applying to the Civil Court, to obtain possession against the assignees of the defaulting putnidar at the time of delivery of. possession.

12. The mode of enforcement of rights of the purchaser of a putni taluq as against assignees of the defaulting putnidar under the Putni Regulation is different from that of a purchaser under the Bengal Tenancy Act, and the question we have to consider in the present case is, whether the interest of the purchaser of a portion of a tenure is an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act, which if not set aside under Section 167 of the Act stands good against the purchaser.

13. The other cases referred to in argument are Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229 and Asgar Ali v. Gouri Mohan Roy 21 Ind.l Cas, 58 : 18 C.W.N. 601 : 18 C.L.J. 57. Both the cases dealt with the meaning of the word 'incumbrance' in Section 86 of the Bengal Tenancy Act. In the first, it was held that the sale of a portion of a nontransferable occupancy holding is not an incumbrance within the meaning of Section 86, Sub-sections (6) and (7), of the Bengal Tenancy Act and the case of Jogeshwar Mazumdar v. Abed Mahomed 3 C.W.N. 13 was distinguished. In the second, which was decided by Mookerjee, J., and one of the members of the present Bench, it was held that the surrender by the tenant of his holding to his landlord in that case after he had transferred a portion of his holding was collusive, and that so long as the tenancy of the original tenant subsisted, the landlord was not entitled to eject the transferee. Another question was raised in the case, viz., whether the purchaser of a portion of a holding is not protected under Sub-section 6 of Section 86 of the Bengal Tenancy Act, but in the view that was taken of the rights of the parties with reference to the first question, the Court held that it was not necessary to decide whether the case of Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229, upon which reliance was placed on behalf of the respondent, furnished a correct exposition of the law. The Court, however, observed that at least four points required consideration with reference to the decision in Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229. The last two points referred to by the Court have no bearing upon the construction of Section 161 of the Bengal Tenancy Act. With regard to the first two points, it was observed-'In the first place, the learned Judges adopted for the purposes of the interpretation of Section 86, which finds a place in Chapter IK of the Bengal Tenancy Act, the definition of the term 'incumbrance' given for the purposes of Chapter XIV alone. In the second place, the decision of this Court in the case of Chundra Sakai v. Kali Prosonno Chuckerbutty 23 C. 254 shows that an exchange is an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act, and in relation to the question raised before us, there does not appear to be, any real distinction between an exchange and a sale. : Now, the Court in that case expressly said that it was not necessary to determine whether the case of Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229 was correctly decided, and reserved its opinion upon the question involved in the said case. But the observation on the first point indicates, if anything, that in the view of the Court, the term 'incumbrance' as used in Section 161 is not the same as in Section 86, and the observation on the second point, viz., that 'there does not appear to be any real distinction between an exchange and a sale' was made in relation to the question before the Court, i.e., in connection with Section 86 of the Bengal Tenancy Act. The Court in that case had nothing to do with the construction of the term 'incumbrance' in Section 161 of the Bengal Tenancy Act, and these cases under Section 86, therefore, do not apply to the present case. It is pointed out that adverse possession for the statutory period has been held to bean 'incumbrance.' In the case of adverse possession, however, although the tenant by allowing the adverse possessor to acquire a right may be said to create an interest in limitation of his interest in the tenure, no right is created in favour of such a person as a tenant as in the case of a sale, and the latter does not hold the portion in respect of which he acquires a statutory title, as a tenant or as part of the tenure. The purchaser of a portion of the tenure, on the other hand, acquires a right to a portion of the tenure itself, and holds such portion as a tenant and as a part of the tenure, and his position, therefore, differs materially from that of a person who has acquired a statutory title against the tenant.

14. I am of opinion that the interest of an unregistered purchaser of a portion of a putni tenure is not an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act, and that the purchaser at a sale held in execution of a rent-decree against the recorded putnidar is not required to annul such an interest under the provisions of Section 167 of the Bengal Tenancy Act.

15. In my opinion, therefore, the decrees of the lower Courts should be set aside and the suit decreed.

Mullick, J.

16. The defendant is the purchaser of a share in a putni taluk from the registered tenant and the question is, whether his interest is an incumbrance on the tenure within the meaning of Section 161, Bengal Tenancy Act. If the interest is not an incumbrance, then the auction-purchaser who is the zemindar is entitled to take possession without annulling the defendant's interest. In the present case, admittedly the procedure for annulment of incumbrances has not been taken within the statutory period of one year from the date of the sale or from the date on which the purchaser had notice of the incumbrance, and the decree-holder's suit for Khas possession must fail unless he can show that the interest in question is not an incumbrance.

17. Now an incumbrance as defined in Section 161 being any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein and not being a protected interest as defined in the last foregoing section, it seems to me clear that the interest of a purchaser of a share of a tenure from one of the registered tenants must fall within this definition, and if the meaning of the Statute is plain, it is not our province to speculate as to the intentions of its framers. A tenant by selling a portion of his tenure creates a right or interest on his tenure as well as an interest in limitation of his own interest in the tenure. The extinction of his interest in that portion of the tenure which is transferred, does not affect the matter. The sole question is whether the definition applies.

18. This would appear to have been the view taken by this Court in Chundra Sakai v. Kali Prosonno 23 C. 254. In that case, the plaintiff was the auction-purchaser of a raiyati holding at a rent-sale brought about by the putnidar and sued to eject the defendants from three plots of land in the holding, which the defendants claimed to have obtained from the recorded tenant in exchange for some other lands outside the holding. It was held that the interest of the defendants was an incumbrance within the meaning of Section 161. The learned Judges observed in that case that the defendants had an incumbrance upon the holding and the exchange by which the land was acquired by the defendants was in limitation, if not in destruction, of the original tenant's right in the holding.

19. Although other Statutes do not always furnish a safe guide, yet in the present case it would be useful to examine the previous law upon the subject of annulment of incumbrances in respect of tenancies. The first Statute which gave the auction-purchaser of a tenure sold for arrears of rent, the power to avoid incumbrances was Regulation VIII of 1819. The term 'incumbrance' is not defined in that Regulation, but it is clear from the text that it covers transfers by sale, mortgage or gift. A complete extinction of the tenant's interest is, therefore, under the Regulation not inconsistent with the creation of an incumbrance. But Regulation VIII of 1819 only applied to a limited class of saleable tenures and although Section 105, Act X of 1859, rendered all other saleable tenures also liable to sale for arrears of rent, there was no procedure for bringing the latter to sale free of incumbrances. This difficulty was removed by Act VIII (B.C.) of 1865. In that Act also, there is no definition of the term 'incumbrance' but the reported cases show that a sale by the registered tenant of a portion of his tenancy had the effect of creating an incumbrance, the transferee being regarded as the holder of a rent-free tenure: Shib Doss Banerjee v. Bamun Doss Mookerjee 15 W.R. 360 : 8 B.L.R. 237 following Sreenath Chuckerbutty v. Sreemunto Lushkur 10 W.R. 467 : 8 B.L.R. 240 note. Finally Act VIII of 1885, while leaving Regulation VIII of 1819 untouched, repealed Act X of 1859 and provided a procedure for bringing all saleable tenures to sale for arrears of rent. It reproduced in effect the provisions of Act, VIII (B.C.) of 1865 in regard to incumbrances and added a definition of the term 'incumbrance.'

20. Therefore, upon the analogy of the rulings under Act VIII (B.C.) of 1865, and in the absence of anything in the present Act which compels us to adopt a contrary interpretation, I think it would be reasonable to hold that a purchaser from a registered tenant is in the position of a rent-free sub-tenant and is still an incumbrancer within the meaning of Section 161 of the present Act.

21. In Jogeshwar Mazumdar v. Abed Mahomed 3 C.W.N. 13, the point for consideration before the Court was whether a tenancy granted by a putnidar was an incumbrance within the meaning of the Putni Regulation, but in giving judgment Rampini, J., observed that a lease just as much as a sale, gift or mortgage must come within the meaning of the word 'incumbance.' It is true, the correctness of that decision was doubted by Caspersz and Doss, JJ., in Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229, where they held that the sale of a portion of a non-transferable holding was not an incumbrance within the meaning of Section 86, Bengal Tenancy Act. But with regard to this case, it is to be observed in the first place, that Sections 85 and 86 of the Bengal Tenancy Act (Act VIII of 1885) contain no definition of the term 'incumbrance' and in the second place, that the Court was to some extent at least influenced by the consideration that the transfer having taken place without the consent of the superior land lord the transferor had not created any valid incumbrance.

22. On the other hand, in so far as the decision was authority for the proposition that a sale of a portion of a non-transferable occupancy holding was not an incumbrance, it was expressly dissented from in Asgar Ali v. Gouri Mohan Roy 21 Ind. Cas. 58 : 18 C.W.N. 601 : 188 C.L.J. 57 by a Division Bench of this Court of which I was a member. In that case we relied inter alia on Chundra Sakai v. Kali Prosonno 23 C. 254 and were of opinion that if an exchange created an incumbrance within the meaning of Section 161, Bengal Tenancy Act, there was no reason why a similar result should not follow from a sale, and applying this line of reasoning to Section 86 also, we held that an interest in a portion of a nontransferable occupancy holding acquired by purchase, was an incumbrance.

23. My learned brother has in the present case based his decision to some extent upon certain decisions relating to the Revenue Sales Act (Act XI of 1859). For the purposes of Section 54 of that Act, it has been held that the interest of a purchaser from the defaulting proprietor before default, is not an incumbrance: Bhawani Koer v. Mathura Prasad 7 C.L.J. 1 at pp. 20, 21 and Annoda Prosad Ghose v. Rajendra Kumar Ghose 6 C.W.N. 375 : 29 C. 223. It has also been held that a person acquiring by adverse possession the interest of the defaulter before default is not an incumbrancer. These decisions, however, were founded upon a consideration of the policy of the Revenue Sales Act and it was felt that in the absence of any definition of the term 'incumbrance' it would not be right to apply the term to the interest of a purchaser from the defaulter; for in that case, the auction-purchaser would get nothing at all, a state of affairs which would completely defeat the object of the framers which was the security of the revenue. No such considerations of policy arise in reference to sales held under Act VIII of 1865 and still less to those under Act VIII of 1885, which gives by definition a specific meaning to the term. Indeed on general principles, I cannot see how an interest acquired by purchase can be distinguished from one acquired by exchange or adverse possession.

24. It appears to be settled that for the purposes whether of the Putni Regulation or Act VIII of 1865, or of the Assam Land Revenue Regulation, a person who acquires by adverse possession some part of the right of the registered, tenant, is an incumbrancer. I see no reason for doubting that he would also be an incumbrancer within the meaning of Section 161 of Act VIII of 1885, notwithstanding the fact that the acquisition of his interest means the complete destruction of the tenant's interest in the portion so acquired.

25. On principle, therefore, the complete extinction of the tenant's interest in a part of the tenancy does not seem to be inconsistent with the terms of Section 161.

26. But in the case before us, there is a further ground for holding the interest of the transferee to be an incumbrance. That ground is that the purchaser having acquired a fractional share and not being entitled to claim registration under the Putni Regulation, the extinction of the purchaser's interest qua the landlord is not complete. There has, therefore, been no complete extinction of the tenant's interest.

27. The result is that I summarise the grounds upon which I base my judgment as follows:

1. The definition in Section 161, Bengal Tenancy Act, covers the sale of a portion.

2. The reported decisions seem to support the view I have taken, with the exception of the cases under Act XI of 1859 which do not apply and Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 11 C.L.J. 16 : 14 C.W.N. 229 which has been dissented from.

3. No question of policy stands in the way.

28. I would, therefore, dismiss the appeal with costs.

29. As we differ in opinion on a point of law, viz., whether the interest of an unregistered purchaser of a portion of a putni tenure is an 'incumbrance' within the meaning of Section 161 of the Bengal Tenancy Act, the case is laid before the Chief Justice, so that the point may be referred to one or more Judges under Section 98 of the Civil Procedure Code.

30. The case came up for final disposal before Sir Lawrence Jenkins, C.J.

Jenkins, C.J.

30. The point of law referred under Section 98 of the Code of Civil Procedure is whether the interest of an unregistered purchaser of a portion of a putni tenure is an 'incumbrance' within the meaning of Section 161 of the Bengal Tenancy Act. In its practical aspect, the question is whether a purchaser of a tenure under a rent-decree must annul the interest of an unregistered purchaser in order to get a clean title, and whether on his failure so to do, the title of the unregistered purchaser prevails against him. It is hot suggested that it was a defect in the rent-decree that the unregistered and unknown purchaser was not a party to the suit; the registered tenant represented the ownership of the whole tenure and as the sale was not of the defendant's interest but of the whole tenure, that tenure passed to the purchaser on the sale in execution of the rent decree. The only limitation on the purchaser's acquisition was that he took subject to the interests (if any) defined in Chapter XIV of the Bengal Tenancy Act as 'protected interests,' but with power to annul the interests defined in that chapter as 'incumbrances.' There were no protected interests, but it is contended that the interest of the unregistered purchaser is an 'incumbrance,' and that as the necessary steps to annul it were not taken, it still subsists. In support of this view reliance is placed on the meaning ascribed to the terms 'incumbrance' by Section 161.

31. The section runs as follows: 'For the purposes of this Chapter (a) the term 'incumbrance', used with reference to a tenancy, means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in the last foregoing section.'

32. The language used, it is maintained, extends the meaning of the term incumbrance beyond its ordinary signification so as to include any disposition of the tenancy, even an absolute assignment on sale of the entirety, and it is conceded that all that can be urged in favour of an assignment of a part must equally extend to an assignment of the whole; the two stand or fall together.

33. It is difficult to understand why the inferior interests of a lien, sub-tenancy and easement alone should have been mentioned, if the intention was that the superior interest involved in an assignment was to be included in the general words. It runs counter to the first principles of construction. An incumbrance would not ordinarily mean or include an absolute assignment, nor would it be a right or interest created on the tenure. Can it be said to be in limitation of the tenant's interest? I think not; these words appear to me to refer not to the area but to the quality of the tenant's interest. This view preserves the essential characteristics of a lien, sub-tenancy or easement, for the idea inherent in these leading words is that of a graft on a subject-matter which is not destroyed but still continues, though in a modified form. The more general words that follow are at least as susceptible of a meaning which would give effect to that idea as the wider but less appropriate one for which the respondents contend.

34. It is urged, however, that there are decisions which compel me to hold an absolute sale as an incumbrance and special stress is laid on the case of Chundra Sakai v. Kali Prosonno Chuckerbutty 23 C. 254 where it was held that an exchange of land is an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act.

35. The Court there was dealing with an exchange followed by a long possession, not the subject-matter was a holding, not tenure. The ratio decidendi is to be found in these words: 'The exchange by which this land was acquired by the defendant was in limitation, if not in fact in destruction, of the original tenant's right in the holding.' A distinction was thus recognised between limitation and destruction and presumably it was considered an exchange was a limitation, for Section 161 does not extend to that which is in destruction of the tenant's right. Whether this be a true view of the effect of an exchange, may have to be reconsidered in the future, it does not arise now. I am concerned only with an absolute sale and that, in my opinion, is not in limitation but in destruction of the interest to which it relates. On the question referred, therefore, I hold that the interest of an unregistered purchaser of a portion of a putni tenure is not an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act.

36. Therefore, according to the opinion of the majority of the Judges who have heard the appeal, the decree of the lower Appellate Court is reversed and a decree for possession passed in the plaintiff's favour.

37. The case must go back to the Court of first instance for a decree as to mesne profits in accordance with Order XX, Rule 12, The respondent will pay the appellant's costs of this appeal and reference.


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