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Saradindu Mukherjee Vs. Sm. Kunja Kamini Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1942Cal514
AppellantSaradindu Mukherjee
RespondentSm. Kunja Kamini Roy and ors.
Cases ReferredJitendra Nath Ghose v. Monmohan Ghose
Excerpt:
- .....does not cease with mere assignment. the lessor in such eases can enforce payment of rent from his original tenant by reason of a privity of contract and the liability of the original tenant can only cease after the assignee is accepted as tenant by the lessor either expressly or impliedly. the question is how far this principle is applicable to the case of a transfer of a permanent tenure governed by the bengal tenancy act. under section 11, ben. ten. act, a permanent tenure is capable of being transferred in the same manner and to the same extent as any other immovable property. section 12 prescribes the mode in which the transfer is to be effected. as soon as the document by which the transfer is made is registered, and the registration is not to take place unless the landlord's fees.....
Judgment:

1. This appeal is on behalf of defendant 1 and it arises out of a suit for recovery of arrears of rent. Defendant 1 and three other persons took a mokarari lease of a large quantity of land in the Sundarbans from the predecessors of the plaintiffs, under a registered potta, dated 16th July 1928. The rent reserved was Rs. 5600 a year, payable in four instalments, in the months of Poush, Magh, Falgoon and Chait, every year. Besides this yearly rent, the lessees undertook to pay revenues and cesses payable in respect of the property and also rents due by the lessors to their superior landlords. Defendant 1 subsequently acquired the interest of his other three cosharers in the tenure and became the sole owner thereof. In 1932 there were certain litigations between the lessors and defendant 1 and as a result of these the rent was reduced from rupees 5600 to Rs. 5100 a year, all the other terms of the potta being kept intact. On 27th January 1936, corresponding to 13th Magh 1342 B.S., defendant 1 sold his interest in the tenure to defendant 2. The present suit was brought by the plaintiffs lessors on 12th April 1938 and they claimed arrears of rent for the period commencing from the Poush kist of 1342 B.S. and ending with the Falgoon kist of 1344 B.S. The claim was laid at Rs. 18027 odd. The plaintiffs' case was that defendant 2 was a relation and benamdar of defendant 1 and the transfer in her favour was a collusive and sham transaction. They therefore claimed rents from both the defendants.

2. The trial Judge came to the finding that defendant 2 was not a benamdar of defendant 1 and in his opinion the question of benami could not be raised by the plaintiffs, who were no parties to the conveyance. The conclusions of the Subordinate Judge therefore were that defendant 1 was tenant up to 27th January 1936 and for the subsequent period in suit, defendant 2 was the tenant. The learned Judge however refused to apportion the liability of these two defendants, being of opinion that this was neither easy nor proper. Defendant 1 has come up to this Court on appeal and the only contention put forward on behalf of him by Mr. Gupta is that on the findings arrived at by the Subordinate Judge himself, the appellant should not have been made liable for rents that fell due after the date of the transfer of the tenure to defendant 2 and that for the subsequent period defendant 2 alone should have been made liable. It seems to us that if the conclusions of law and fact arrived at by the Subordinate Judge be accepted as correct, his decision cannot possibly be supported. According to the Subordinate Judge defendant 1 ceased to be a tenant on and from 27th January 1936 and he was further of opinion that he was not personally liable under the terms of the Potta for any rent that accrued due subsequent to the transfer. In these circumstances it is difficult to see why there was a joint decree made against both the defendants, when their liability could have been easily apportioned on the materials appearing on the face of the record.

3. Mr. Das who appears on behalf of the plaintiffs respondents, has appreciated the difficulty in his way and he has attempted to support the decision of the Subordinate Judge on grounds other than those upon which the latter relied. The contentions put forward by him are of two-fold character. In the first place, he says that the Court below should have held on evidence that defendant 2 was a mere benamidar of defendant 1 and it erred in law in holding that the plaintiffs were incapable of raising the question of banami in the present litigation. The second ground taken is that even if defendant 2 was not a benamidar of defendant 1, defendant 1 as one of the original lessees, was bound by the personal covenant in the Potta to pay the rent in spite of the fact that he had assigned his interest to another person. These are the two points that require consideration in this case. So far as the first point is concerned we agree with Mr. Das that the Court below was wrong in holding on the authority of the decision in Lala Achalram v. Raza Kazim Hussain Khan ('05) 27 All. 271, that the plaintiffs not being parties to the deed of transfer were not competent to raise the question of benami in the present litigation. As was held in Kamini Kumar Deb v. Durga Charan Nag ('23) 10 A.I.R. 1923 Cal. 521, the principle enunciated by the Judicial Committee in Lala Achalram v. Raza Kazim Hussain Khan ('05) 27 All. 271 that a stranger to a deed which is intended to be real and operative between the parties thereto cannot dispute the payment or non-payment of the consideration or its adequacy or inadequacy has no bearing in a case where the deed is challenged as fictitious and never designed to operate as real deed or to effect transfer of title. We think however that the evidence which has been adduced on behalf of the plaintiffs in the present case falls short of what is necessary to establish a case of benami. The only witness who has been examined on behalf the plaintiffs is his officer Jogesh Chandra Dey. This witness in his deposition states as follows:

Saradindu Babu said that he had made the benami transaction in his relation's name and that defendant 2 was his relation and mother-in-law... We learnt on enquiry that Nanda Rani has no means to purchase properties for Rs. 4000 and Saradindu Babu himself maintains her.

4. In cross-examination he stated further:

Each year I meet Saradindu Babu who also goes to Rai Bahadur Gunendra Krishna Roy's house. In his presence Saradindu Babu said that he had made the benami transaction.

5. It is impossible to believe that if defendant 1 really intended to make a sham transfer for the purpose of avoiding his liability for rent he would himself go to his landlord and tell him about it. It is true that there is no denial on the part of defendant 1 that Nanda Rani is related to him. The attesting witnesses to the deed of sale also are all employees of defendant 1 and it is admitted by defendant 1's own witnesses that even after the purchase, the management of the property was left in the hands of one of the officers of defendant 1. These are suspicious circumstances, no doubt, and throw considerable suspicion regarding the genuineness of the transfer. But we cannot rest our decision on mere surmises or suspicions. There is no evidence on the plaintiff's side to prove that there was no payment of consideration by Nanda Rani. Certainly the plaintiffs could have produced better evidence to prove that the transaction was in reality a benami affair. We, therefore, overrule the first contention of Mr. Das.

6. The second point put forward by Mr. Das raises a question of some importance. It is a well settled rule of English law which has been adopted in the Transfer of Property Act (vide Section 108 (J), T.P. Act) that when the liability of a tenant to pay rent is founded on privity of estate, the liability ceases as soon as the interest is transferred to some other person. But so far as the original lessee is concerned, his liability does not cease with mere assignment. The lessor in such eases can enforce payment of rent from his original tenant by reason of a privity of contract and the liability of the original tenant can only cease after the assignee is accepted as tenant by the lessor either expressly or impliedly. The question is how far this principle is applicable to the case of a transfer of a permanent tenure governed by the Bengal Tenancy Act. Under Section 11, Ben. Ten. Act, a permanent tenure is capable of being transferred in the same manner and to the same extent as any other immovable property. Section 12 prescribes the mode in which the transfer is to be effected. As soon as the document by which the transfer is made is registered, and the registration is not to take place unless the landlord's fees are paid, the transfer is complete. It has been held by the Judicial Committee in Surapati Roy v. Ram Narain Mukherjee ('23) 10 A.I.R. 1923 P.C. 88 following a long series of decisions of this Court that as soon as the transfer is complete, the liability of the old tenant for rent ceases. It is true that the facts of this case do not show as to whether the transfer in that case was by the original tenant or a subsequent assignee. But their Lordships expressly approved of the decision in Hemendra Nath Mukherjee v. Kumar Nath Roy ('08) 12 C.W.N. 478, where the original lessee was held to be absolved from liability to pay rent after a deed of release was executed and registered by him. It appears indeed that there was an additional finding in Hemendra Nath Mukherjee v. Kumar Nath Roy ('08) 12 C.W.N. 478, that the plaintiff landlord never asked for any rent from, the old lessees; but that was not the basis of the decision of the learned Judges.

7. The case in Hemendra Nath Mukherjee v. Kumar Nath Roy ('08) 12 C.W.N. 478, was followed by Walmsley and Mukherji JJ. in Kanai Lal Ghose v. Basanta Behari Sen ('26) 13 A.I.R. 1926 Cal. 451, and it was held that on the transfer of a permanent tenure being complete under Section 12, Ben. Ten, Act, the liability of the transferor who was the original tenant and not an assignee, would cease. It was held further that though the original tenant would be absolved from his liability to pay rent as soon as the transfer was complete, still he would remain liable for the performance of other personal obligations created by the lease. As has been said already, even under the English law, the liability of the original tenant to pay rent comes to an end as soon as there is recognition of the assignee as a tenant by the lessor. We think that the effect of a transfer being completed with all the formalities required by Section 12, Ben. Ten. Act, is, that there is a statutory obligation on the part of the lessor to recognize the transferee as a tenant. Of course, if there is a contract between a landlord and a tenant that the transfer shall not be valid and binding unless security is given or some other condition is fulfilled, the original tenant might still remain liable for the rent. But when there is no such condition, the lessor has got no other option but to recognize the transferee.

8. It is to be noted that before 1885 the duty was fixed upon the transferee of a tenure to get his name recorded in the Sherista of the landlord and if he failed to do that, the landlord could ignore him altogether and proceed against the recorded tenant for recovery of arrears of rent. The Act of 1885 made a change in this respect and under it, as soon as the deed of transfer is registered, the old tenant walks out of the field, no matter whether the landlord has actual notice of it or not--vide the observation of the Judicial Committee in Jitendra Nath Ghose v. Monmohan Ghose . We therefore think that in the present case the liability of defendant 1 for the rent ceased after 27th January 1936. He would only be liable for the rent of the Pous Kist of 1342 B.S. and for the subsequent period the decree should be made against defendant 2 alone. The result is that we allow the appeal and modify the judgment of the learned Subordinate Judge. The plaintiffs will have a decree for Rs. 1626-15-3 against defendant 1 and for Rs. 16400-9-6 against defendant 2 with proportionate costs of the trial Court against each. There will be no order for costs in this Court. The cross-objection is dismissed. There will be no order for costs in the cross-objection.


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