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AzimooddIn Vs. Mathura Mohan Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal816,18Ind.Cas.712
AppellantAzimooddin
RespondentMathura Mohan Saha and ors.
Excerpt:
patni regulation (viii of 1819), sections 3, 5 and 6 - patni, part of--alienation--registration with zemindar--part of patni, if may be alienated without registration with zemindar--bengal tenancy act (viii of 1885), sections 12, 17 and 195(e)--whether registration of transfer confers title without registration with zemindar--bengal tenancy act, whether applies to alienation of part of patni. - .....them registered in the landlord's sherista but the sales were registered under section 12 of the bengal tenancy act. in the first court, the plaintiff failed to recover from the defendants though it was held that he was entitled to the five annas share of kali kishore. in the lower appellate court, the suits were decreed in respect of the entire claim.3. the first point raised before us which was not raised in either of the courts below, is that the registration of the transfer to durga charan and his brothers operated to give them an interest in the land effected by force of sections 12 and 17 of the bengal tenancy act. we consider that in view of section 195(e) of the bengal tenancy act, this proposition is unsound.4. the regulation viii of 1819 enacts (section 3) that patni taluks.....
Judgment:

1. This is a second appeal in three analogous rent suits, in which two points are raised before us. The first arises thus. One Shukur Mamad was the owner of a patni which the plaintiffs respondents purchased at an execution sale in execution of a decree for arrears of the rent thereof. He sold the patni to Durga Charan Roy, who purchased on behalf of himself and his six brothers of whom one was Kali Kishore Roy, who parted with all his interest in the patni except five gandas. Subsequently, the rent of the patni fell into arrear and the landlords brought four suits in respect of it against Rahim Bakhsh the son of Shukur Mamad, who had no interest in the patni, and Kali Kishore. They obtained decrees in execution of one of which a sale of the patni took place at which the plaintiff became the purchaser.

2. Neither Durga Charan Roy nor any of his brothers ever took any steps to have the alienation to them registered in the landlord's sherista but the sales were registered under Section 12 of the Bengal Tenancy Act. In the first Court, the plaintiff failed to recover from the defendants though it was held that he was entitled to the five annas share of Kali Kishore. In the lower Appellate Court, the suits were decreed in respect of the entire claim.

3. The first point raised before us which was not raised in either of the Courts below, is that the registration of the transfer to Durga Charan and his brothers operated to give them an interest in the land effected by force of Sections 12 and 17 of the Bengal Tenancy Act. We consider that in view of Section 195(e) of the Bengal Tenancy Act, this proposition is unsound.

4. The Regulation VIII of 1819 enacts (Section 3) that patni taluks are valid, and transferable; in Section 5 it prevents the zemindar from refusing to register and otherwise give effect to alienations but it entitles him to exact a fee and demand security from the transferee, and by Section 6 he may refuse to register a transfer until the fee is paid, and the security registered. This section concludes: 'It is hereby provided that the rules of this and of the preceding section shall not be held to apply to transfers of any fractional part of a Patni taluk, nor to any alienation other than of the entire interest: for no apportionment of the zemindar's reserved rent can be allowed to stand good unless made under his special sanction'. In terms, the proviso of Section 6 applies only to the zemindar's right to exact a fee and demand security, as the zemindar's right to refuse to register or to give effect to an alienation, seems to be taken away by Section 3, but it is impossible to read the concluding words of the section as doing less than forbidding alienation of a part of the patni without the zemindar's sanction and the earlier part makes it impossible to force a zemindar to register or give effect to an alienation of a part. The Regulation, therefore, provides rules for the alienation of the whole or a part of a patni taluk, and these cannot be affected by any-thing in the Bengal Tenancy Act, by force of Section 195(e). The appellant's argument, therefore, which is that the Bengal Tenancy Act applies to the alienation of part of a patni taluk, because its operation is consistent with the provisions of Regulation VIII, must fail, in so far as it is sought to show that alienation of a part of a patni is valid without registration with the zemindar.

5. The second point raised by the appellants is that Shaba Banu, an infant zemindar, is improperly omitted from the list of plaintiffs, because she was born before the decree in the suit. The findings of fact, however, only show that she was born before the sale money was withdrawn. This point, therefore, also fails.

6. The result is that this appeal is dismissed with costs.


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