1. This is a Letters Patent appeal from the decision of oar learned brother Patterson, J., in a suit for recovery of arrears of rent which was brought under the following circumstances: A putni tenure called Putni Taluq Lakshmi Narayan Bakshi was sold in auction for arrears of rent under Regn. 8 of 1819 on the 1st of Agrahayan 1330 B.S., the auction purchasers being the plaintiffs who are themselves the zamindars. Under this putni there is an under-tenure called a howla which was held by one Rajkumar Sen, the predecessor-in-interest of defendants 3 to 8 and under them defendants 1 and 2 are the tenants in possession as raiyats. It has been found that the greater part of the land of the howla has been diluviated and that only the land comprising the holding of the tenants defendants has remained intact. The plaintiffs brought the present suit for recovery of arrears of rent in respect of the raiyati holding for the period 1328- 1331 B.S. They contend that the howla of defendants 3 to 8 has been annulled by the sale of the putni taluq held under Regn. 8 of 1819. The suit was contested by one of the howladars, namely defendant 5. His defence was that there had been no annulment of the howla by the aforesaid putni sale and that on the other hand the plaintiffs elected after the auction-purchase to treat the howla as subsisting. On these pleadings the point that arose for determination at the trial was:
Has the intermediate howla tenure of the proforma defendants been annulled? Are the plaintiffs entitled to recover rent from the tenants defendants?
2. The learned Munsif did not go into the question whether the howla was void by reason of the aforesaid putni sale or whether it was only voidable by reason of that sale. He apparently took the view that the howla was only voidable and he held upon the evidence that the plaintiffs had failed to prove that they had taken any steps to avoid it. In that view he held that the plaintiffs were not entitled to recover rent directly from the tenants-defendants and so he dismissed the suit. On appeal the learned Judge also did not go into the question whether the effect of the putni sale was to render the howla ipso facto void, but he took the view that the suit itself was sufficient evidence of the intention on the part of the auction-purchasers zamindars to annul the under-tenure, and he held that the under-tenure had been annulled on the basis of the present suit. In that view he allowed the appeal of the plaintiffs and decreed the suit as against defendants 1 and 2. Therefrom defendant 5 preferred a second appeal and it was heard by Patterson, J. The main question that was argued before Patterson, J., was whether the effect of the putni sale was to render the howla ipso facto void as from the date of the sale or whether the effect was only to render the howla voidable at the option of the action-purchasers. The learned Judge upon a consideration of the Case law on the points has held that the effect of the putni sale was to render the howla voidable; but not ipso facto void, and that having regard to the findings of the Courts below the howla was still subsisting, at any rate up to the date of the institution of the suit. As to the view taken by the lower appellate Court, namely, that the howla should be treated as having been annulled by the institution of the suit. Patterson J., held that such annulment could not possibly have retrospective effect as regards the liability of the tenants to pay rent to the zamindars for the period anterior to the suit.
3. In this Letters Patent appeal it is contended, first, that the view of law taken by Patterson, J., is not correct and that the effect of the putni sale was to render the howla ipso facto void and not merely voidable; and, secondly, that conceding that the effect was to render the howla only voidable it must be treated as annulled by reason of the institution of the suit as from the date of the putni sale. The effect of a sale of a putni taluk for arrears of rent held under Regn. 8 of 1819 is described in Section 2 of that Regulation. In this appeal the argument at the Bar has proceeded on the assumption that the howla in question is covered by Clause 2, Section 2 and the argument in support of the appeal is that the terms of Clause 2 bear out the contention that the legal effect of the putni sale is to make the under-tenure void without any further action on the part of the auction purchasers. In order to consider this argument properly it will be necessary to look to other parts of the Regulation. The preamble explains the intent of the Regulation and among other things it recites as follows:
It has accordingly been deemed necessary to regulate and define the value of the property given and acquired on the creation of a putni taluq as above described; also to declare the legality of the practice of under-letting in the manner in which it has been exercised by patni-dars and others, establishing at the same time such provisions as have appeared calculated to protect the under-lessee from any collusion of his immediate superior with the zamindar, or other, for his ruin as well as to secure the just rights of the zamindar on the sale of any tenure under the stipulation of the original engagements entered into with him.
4. Section 3 is divided into three clauses: by Caluse 1 putni tenures are declared valid, transferable and answerable for debt, by Clause 2 the putnidars are declared to have a right of under-letting and by Clause 3 putni tenures are declared to be not voidable for arrears of rent but it is prescribed that the tenures shall be brought to sale by public auction. To Clause 2, which is material for our purpose there is the following proviso:
Provided, however, that no such engagements shall operate to the prejudice of the right of the zamindar to hold the superior tenure, answerable for any arrear of his rent in the state in which he granted it, and free of all incumbrances resulting from the act of his tenant.
5. This proviso states in effect that so far as engagements are concerned they are not to operate to the prejudice of the zamindars and that so far as incumbrances are concerned the zemindars have the right to hold the superior tenure free of all incumbrances. There is thus a differentiation as between engagements and incumbrances. As regards the inferior tenures further provisions are made in their favour by Section 4, while by Sections 5, 6 and 7 the interests of zamindars are safeguarded. By Section 8 zamindars are given the right to apply for periodical sales and this and the following Sections 9 and 10 also provide for the procedure. What will be the effect of the sale on the engagements, incumbrances, and under-tenures is laid down in Section 2. By Clause 1 of this section it is provided that the tenure is to be sold free of all incumbrances' by the act of the defaulting proprietor. As a corollary it is further laid down that no transfer or mortgage or other limited assignment shall be permitted to bar the indefeasible right of the zamindar to hold the tenure in the state in which he created it. By Clause 2 it is provided that no under leases shall stand after sale and the provisions are in these terms:
On sale of a taluk for arrears, all leases originating with the holders of the former tenure, if creative of a middle iuterest between the resident cultivators and the late proprietor must be considered to be cancelled, except the authority to grant them should have been specially transferred: the possessors of such interests must consequently lose the right to hold possession of the land, and to collect the rents of the raiyats; this having been enjoyed merely in consequence of the defaulter's assignment of a certain portion of his own interest the whole of which was liable for the rent.
6. By Clause 3 there is an exception made in favour of bona fide engagements with raiyats. It is noteworthy that Section 13 makes a further provision in favour of taluqdars of the second degree, inasmuch as they are given an opportunity to save the tenures from sale by making a deposit, and certain further provisions are made so that the amount so deposited may be accounted for to their benefit. Section 15 prescribes the procedure for delivery of possession to the purchaser. There is no mention among other things of notice to the raiyats and others to attend and pay their rents to him. In case of opposition from holders of tenures and others the new purchaser may take the aid of the Court and the police in obtaining possession and a proclamation is to issue.
7. In the present case the finding of fact is that the plaintiffs did not take any steps to assert their right to possession after the purchase of the taluq, that they failed to prove their allegation that proclamation was issued intimating that all intermediate tenures were annulled, that on the contrary they allowed the defendants' howla to be recorded in the Record of Rights which was finally published subsequent to their auction-purchase, that they allowed the rents of the holding for full eight years to get barred by limitation, and that they only brought the present suit about seven months before the expiry of 12 years from the date of the auction-purchase. It is however the argument in support of this appeal that by reason of the wording of Clause 2, Section 2 the defendants' howla is void in spite of this inaction on the part of the plaintiffs. Section 2 in its terms deals separately with incumbrances and under leases. As regards incumbrances the provision is that the tenure is to be sold 'free of incumbrances.' As regards under leases the provision is that the under leases 'must be considered to be cancelled.' The whole argument in support of the appeal is that the sense of the latter provision is that in the case of an under-lease also the tenure is to be sold free of the under-lease. If that were so, it is difficult to see why there is a differentiation made between incumbrances and under-leases. If the effect of the sale were to be the same in each case the differentiation would be unnecessary and meaningless. On the other hand, reading the regulation as a whole and untrammelled by case law, one may say that it is within the policy of the regulation to make some provision for the protection of the putnidar and also of those to whom he has underlet, the right to underlet being expressly declared, provided always that the interests of the zamindar are not jeopardised. Incumbrances may be improvident and, more often than not, may be derogatory to the value of the tenure. Under-leases, on the other hand, may be-perfectly prudent and reasonable investments. That may explain why incumbrances should be absolutely void and under-leases only voidable on the sale of a tenure.
8. A relevant authority is furnished by the case of Ranee Sarno Moyee v. Maharaja Sattees Chunder (1863-66) 10 MIA 123 (PC). In that case the decision was based upon Regn. 44 of 1793, and on that ground it is sought to be distinguished from the present case. But Section 5 of that regulation, upon which in particular the decision of that case turned, has some bearing on the present case, and also the general principles which were laid down by their Lordships must apply, and have been applied, in other cases. In Section 5 the words are no less emphatic, inasmuch as it provides that when a zamindari is sold at a public sale for discharge of arrears due from the proprietors to the Government
all engagements which such proprietors shall have contracted with dependent Talukdars whose taluks may he situated in the lands sold, as also all leases to under farmers and pottahs to raiyats (with the exception of the engagements, pottahs and leases specified in Sections 7 and 8, shall stand cancelled from the day of sale, and the purchaser or purchasers of the lands shall be at liberty to collect from such dependent Talukdars, and from the raiyats or cultivators of the lands let in farm, and the lands not farmed, whatever the former proprietor would have been entitled to demand according to the established usages and rates of the parganna or district in which such lands may be situated had the engagements so cancelled never existed.
9. Inspite of the aforesaid provision that the engagements were to stand cancelled from the day of sale, their Lordships proceeded to construe its meaning from the policy and intent of the regulation, from the language used in other parts, of the same section, and from Section 7 which created an exception out of the provisions of that section. It is true that in the Putni Regulation there is no provision corresponding to this Section 7 or to the concluding part of Section 5, but these differences to our mind do not make the principles upon which their Lordships proceeded inapplicable to the present case. In that case, as in the present, reliance was placed on the words:
stand cancelled from the day of sale,' but their Lordships remarked that in this hard and literal construction of the words cited above, their Lordships did not concur.
10. They pointed out that
in the present case the object of the Government was that the jumma should be duly paid and that the means of paying it should not be withdrawn, by the improvident grants of the zamindars who had made default; but cases of default might often arise where no improvident grant had been made, where the Talukdars and the raiyats held at proper rents and the default was owing to extravagance, mismanagement or other causes; in such cases the Government cannot be supposed to have intended a wanton and unjust disturbance of vested interests.
11. Ultimately their Lordships concluded that the construction of the section was that a power was given to the purchaser to avoid the subsisting engagements as to rent and etc. and they proceeded to remark that this construction gave it a just and reasonable operation, and later on they remarked that they were glad to find that it was not their duty to support a claim which appeared to them to be unjust. Regn 44 of 1793 has since been replaced, but the authority of this decision has been applied to various cases and in particular by Markby, J., in the case of Modhoo Soodun Koondoo v. Ramdhon Gangolee (1869) 12 WR 383 where it has been held that no sales for arrears of rent, not even sales under Regulation 8 of 1819, have ipso facto the effect of cancelling tenures created by defaulting owners. A contrary view however was taken in the case of Annada Churn Dass v. Mathura Nath (1879) 4 Cal 860 and in the case of Mohini Chunder v. Jotirmoy Ghose (1879) 4 CLR 422; but the authority of these decisions was a good deal weakened by the fact that Garth, C.J., who was a party to them, resiled from that position when he decided the Full Bench case of Titu Bibi v. Mohesh Chunder Bagchi (1883) 9 Cal 683 (FB). In that case it was held that whether under the Rent Law of 1869 or under Regn. 8 of 1819 the under-tenures were not ipso facto void upon the sales, but were voidable only at the option of the purchasers. So far the trend of the decisions is against the appellants in this appeal, but they rely strongly on the subsequent decision in the case of Krishna Promoda Dassi v. Dwarkanath Sen (1913) 20 IC 654. In that case the facts are similar to those of the present and Coxe, J., who first heard the appeal held that it was settled by the cases in Modho Soodun Koondoo v. Ramdhone Gangolee (1869) 12 WR 383 and Titu Bibi v. Mohesh Chunder Bagchi (1883) 9 Cal 683 (FB), that under-tenures are not ipso facto void on sale under the Putni Regulation. On certain other points he made an order of remand. Then there was a Letters Patent appeal which was disposed of by the judgment of Jenkins, C.J. He reversed the judgment of Coxe, J., and it is on this that reliance is placed by the learned advocate in support of this appeal. Jenkins, C.J., in his judgment first refers to the different sections of the Putni Regulation and remarks:
These provisions appear to me to point to the purchaser's right to take possession immediately and also to establish the conclusion that one who has a tenure or middle interest between the resident cultivator and the late proprietor cannot bar or in any way prejudice the purchaser's right. That seems to me to be a fair reading of the sections.
12. This however is not tantamount to saying that the provisions mean that an under-tenure is void without any further action on the part of an auction-purchaser; nor does Jenkins, C.J., say so. In discussing the case law Jenkins, C.J., seemed to doubt the soundness of the decision in Ranee Surno Moyee v. Maharaja Sattees Chunder Roy (1863-66) 10 MIA 123 (PC) and the opinion which he gave was 'for what it might be worth.' As we shall presently point out this criticism cannot stand. On the other hand Jenkins, C.J., preferred to follow the authority of two other decisions of the Judicial Committee, namely, decisions in the cases of Watson v. Collector of Rajshahi (1869) 13 MIA 160 (PC) and Brindaban Chunder v. Brindaban Chunder Dey (1874) 1 IA 178; but in both these cases the decision was with reference to Clause 1, Section 11 and there was no question of a distinction being made as between incumbrances and under-leases, a distinction which was brought out in the subsequent case of Turner Morrison and Co. v. Monmohan Chowdury to which we shall presently refer. It would seem, however, that the learned Chief Justice really based his decision on the facts. He says:
In this case it is difficult to see what more could have been done by the plaintiff than in fact has been done by her. She asserted her full right as purchaser on the earliest possible occasion; she took possession; she obtained a proclamation and then she instituted this suit in which she obtained a decree against defendant 1 a decree from which no appeal was preferred by him. In my opinion, the lease in favour of defendant 2 'must' in the words of the section be considered to be cancelled.
13. As I have mentioned already, the facts are different in the present case, the plaintiffs having taken no steps to assert their right to immediate possession. The matter, however, seems to us to be concluded by the recent decision of the Judicial Committee in the case of Turner Morrison and Co. v. Monmohan Chowdhury . That was no doubt nob a case under the Putni Regulation, but it was a case under the Bengal Land Revenue Sales Act (Act 2 of 1859) and Section 37 of the Act came in for consideration. Para. 1 of that section is in the following terms:
Rights of a purchaser of a permanently settled estate sold for its own arrears, the purchase of an entire estate in the permanently settled districts of Bengal, Bihar and Orissa, sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all incumbrances which may have been imposed upon it after the time of settlement and shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants with the following exceptions * * *.
14. Their Lordships in construing this section held 'that it draws a clear distinction between incumbrances' and 'under-tenures':
Incumbrances are wiped by the sale; in the case of under-tenures the purchaser is only entitled to avoid and annul them, and on doing so, that is upon exercising his option to annul, he can eject all under-tenants.
15. Then they go on to remark.
The taluk in the present case, therefore, is, their Lordships think, an under tenure within the meaning of the section, and the purchaser's right in respect of it is only a right to annul. It is clearly something different from an incumbrance, whatever that term may be intended to include. A similar differentiation appears in Section 11, Putni Regulation (8 of 1819), though it apparently finds no place in the Tenancy Act.
16. The last sentence is material authority in this appeal and we cannot say that by the words 'a similar differentiation' their Lordships did not intend to mean a differentiation in 'the effect of the sale.' We may point out that their Lordships made a reference to the Full Bench case of Titu Bibi v. Mohesh Chunder Bagchi (1883) 9 Cal 683 (FB) which was cited before them; and this reference did not seem to derogate from the authority of the Full Bench case as regards the particular question decided by that case. It is also important to observe that their Lordships referred to the case of Ranee Surnomoyee v. Maharaja Sattees Chunder (1863-66) 10 MIA 123 (PC) in terms which re-assert the authority of that decision. Our conclusion, therefore, is upon a reading of Regn. 8 of 1819 and the authorities, that on the sale of a putni taluk for arrears of rent an under-lease is not void ipso facto by the sale but is only voidable. In the present ease, therefore, the effect of the putni sale was to render the howla of the pro forma defendants voidable but not ipso facto void, and Patterson, J., was right in holding that, having regard to the findings of the Court below, the howla was still subsisting, at any rate up to the date of the institution of the suit. The next point is whether the suit itself must be regarded as giving notice to the defendants to avoid the howla. The learned advocate for . the defendant-respondent has contended that in order to constitute such notice the suit must be one for possession and in support of his contention he has relied on the remarks of the Judicial Committee in the aforesaid case of Turner Morrison and Co. v. Monmohan Chowdhury which are in the following terms:
Unless and until the taluk is annulled it continues; the talukdar becomes the under-tenant of the purchaser and the tenants holding under him are not affected by the change of proprietorship. There is no privity of contract between them and the purchaser, and the latter cannot either claim rent from them or eject them so long as he allows the taluk to continue. The purchaser could, no doubt, sue for possession of the holdings joining both the talukdar and the talukdar's tenants. The institution of such a suit would be an effective election to annul the taluk, and the joinder of the persons in actual possession would be in accordance with the ordinary procedure. But their Lordships are unable to see what cause of action the purchaser can have against the tenants of the talukdar as long as the taluk subsists. Their contract is with him and their liability is to him and not with or to his superior landlord.
17. We do not understand this passage to mean that nothing short of a suit for possession can be an effective election to annul the taluk. These remarks were made in suit to eject defendants from plots of land forming part of a revenue paying estate. The present suit is one for rent The howladars have been made defendants and the plaintiffs want a decree for rent as against the tenants defendants on the allegation that the howla is void. There is no reason why such a suit should not be an effective election to annul the howla. See the remarks of Jenkins, C.J., in the aforesaid case of Srimati Krishna Promoda Dassi v. Dwarka Nath Sen (1913) 20 IC 654. It is contended further by the learned Advocate for the appellants in this Court that, if the effect of the suit is to annul the howla, the annulment must take effect from the date of the putni sale. This would be inconsistent with the theory 'that the plaintiffs have the option to allow the howla to remain until the election is made and is not borne out by the remarks of the Judicial Committee in the passage quoted above. See also the case of Ramratan Kapali v. Aswini Kumar Dutt (1910) 37 Cal 559. The result is that we hold that the present suit must be considered as an effective election on the part of the plaintiffs to annul the howla in question, but that the annulment can only take effect from the date of the institution of the suit.
18. The consequence is that so far as the period in suit is concerned the howla must be held to be subsisting and there is no relationship of landlord and tenant as between the plaintiffs on the one hand and the tenants defendants 1 and 2 on the other. The plaintiffs, therefore, cannot get a decree for rent as claimed. In the result the decree made by Patterson, J., will stand and this appeal will be dismissed with costs.