Herbert Carnduff, J.
1. This second appeal has been preferred against the dismissal by the lower Appellate Court of a suit for the recovery of possession of an agricultural holding. The original plaintiff and defendant each claimed under a registered permanent sub-lease granted by the tenant, Chandra Kant Majumdar. The learned Sub-Judge in the Court of Appeal below held that, regard being had to the provisions of Section 85 of the Bengal Tenancy Act, 1885, such a sub-lease was void and conferred no title: whence it followed that the plaintiff could not succeed in ejectment against a person in the advantageous position of a defendant in possession.
2. It is not without reluctance that I have arrived at the conclusion that this decision is right: and I say so for two reasons. In the first place, I have already joined, after argument, in a decidedly expressed opinion to the contrary--see Abdul Karim, Patwari v. Abdul Rahman 16 C.W.N. 618; 15 C.L.J. 672; 13 Ind. Cas. 364: while, in the second, it seems to me that justice, equity and good conscience are on the side of that contrary opinion, and I would not, if I could avoid it, agree to the construction of an enactment of the Legislature which enables a lessor to go behind and evade the terms of his own lease.
3. In the circumstances, I must be excused for going into the matter rather more fully than I otherwise should.
4. Section 85 of the Bengal Tenancy Act 1885 (VIII of 1885) runs as follows: 85(1) If a ryot sub-lets otherwise than by a registered instrument, the sub-lease shall not be valid against his landlord unless made with the landlord's consent: (2) A sub-lease by a ryot shall not be admitted to registration if it purports to create a term exceeding nine years: (3) Where a ryot has, without the consent of his landlord, granted a sublease by an instrument registered before the commencement of this Act, the sub-lease shall not be valid for more than nine years from the commencement of this Act.'
5. The Act came into force on the 1st November 1885: and, therefore, the transitory provisions of the third sub-section quoted above have become practically spent and may be ignored. What we are here concerned with is Sub-section (2) alone.
6. Now the language of this sub-section is clear and unambiguous. Under it, the registration of a permanent sub-lease, such as the sub-lease before us, is absolutely prohibited, registration against one person and not against another being unprovided for and, so far as I am aware, unknown to the law; and I venture to say that I agree in holding with the learned Chief Justice and Mr. Justice N. Chatterjea in Jarip Khan v. Durfa Bewa 17 C.W.N. 59; 16 C.L.J. 144; 15 Ind. Cas. 476 that registration accomplished in contravention of this statutory prohibition can have no effect whatsoever. In other words, the permanent sub-lease of the plaintiff in this case must be regarded as unregistered. But Section 17 Clause (d) of the Indian Registration Act, 1877--See now Act XVI of 1908--renders such a sub-lease invalid unless it is made by a registered instrument; and under Section 49 of the same Act, an unregistered instrument of the kind not only is powerless to affect any immoveable property comprised in it, but also cannot be received as evidence of any transaction affecting such property. The result, then, is this, that the plaintiff's title-deed has no existence in the eye of the law and must be expunged from the record as if it had never been executed: and this is in accordance with the view taken by Pratt and Geidt, JJ., in Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916 by the same Judges in Ramgati Mandul v. Shyamacharan Dutt 6 C.W.N. 919 by Geidt, J., sitting alone, in Basaratullah Mundle v. Kasirunnessa Bibi 11 C.W.N. 190 and by Jenkins, C.J., and N.B. Chatterjea, J., in the recent case already referred to.
7. On the other hand, there are certain rulings which are said to indicate the view that, notwithstanding Section 85 of the Tenancy Act, a sub-lease by a ryot for a terra exceeding nine years is good as against him; and as I was myself a party to one of them, I feel it incumbent on me to refer to all.
8. In Gopal Mondul v. Eshan Chander Banerjee 29 C. 148 it was held by Ameer Ali and Pratt, JJ., that, where a ryot had, without the consent of his landlord, granted a sub-lease by a written instrument registered before the commencement of the Tenancy Act, the sublease was invalid for more than nine years after such commencement as against the landlord, but not as against the ryot granting it. This, however, was a decision turning on the construction of Sub-section (3) of Section 85 and, as their Lordships themselves were, at pains to point out, that subsection has no connection with Sub-section (2). The ruling, therefore, is really no authority on the point before us here.
9. In Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377 the question depended upon a written sub-lease executed by a ryot in 1884 for an indefinite period, and Rampini and Pratt, JJ., following Ameer Ali and Pratt, JJ., in the case just cited, held that Sub-section (3) of Section 85 did not render the sub-lease invalid for more than nine years against the ryot, 'the Legislature having unfortunately omitted to insert in this clause the words against his landlord,' which occur in Clause (1).' Again, the ruling is not an authority on the construction of Sub-section (2) of the section.
10. In Tamijuddi v. Asgar Howladar 36 C. 256; 1 Ind. Cas. 942; 13 C.W.N. 183 the sub-lease under consideration was not one for more than nine years and, as Mitra and Chetty, JJ., remarked, there was, therefore, no bar to its registration. Consequently, although those learned Judges observed that Section 85 of the Tenancy Act did not appear to them to prevent the creation of a right in an undertenant to the extent of the right of the tenant himself, the observation was by way of obiter dictum, and the supreme difficulty connected with registration, with which we are confronted in the present instance, did not arise, and was not dealt with. Once more, then, I am bound to say that the ruling cited does not decide the point now before us.
11. In Bipin Behari Hati v. Amrita Lal Bhuttacharji 9 C.L.J. 76; 3 Ind. Cas. 685 the question was one of compensation for the acquisition of land claimed by a sub-tenant, to whom a lease for more than nine years had been granted by the tenant before the coming into operation of the Tenancy Act; and Maclean, C.J., and Doss, J. held, following Gopal Mandul v. Eshan Chander Banerjee 29 C. 148 and Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377 that Sub-section (3) of Section 85 applied only as between the subtenant and the superior landlord, so that the sub-tenant had an interest and was entitled to share in the award with the tenant. The decision is, therefore, on the same footing as those it followed.
12. In Manik Borai v. Bani Charan Mandal 13 C.L.J. 649; 10 Ind. Cas. 469 Mukerjee and Coxe, JJ., held that Sub-sections (1) and (2) of Section 85 must be read together; that the question of the validity of a sub-lease not created by a registered instrument may be raised by the landlord of the ryot, and by him alone; and that the invalidity created by Sub-section (2) operates only in favour of such landlord. But the decision of the case was not rested on this point; for it was in the end held that the suit ought not to have been dismissed because, even though the instrument, under which the plaintiff claimed, were inoperative, he had a subsisting interest when the action was commenced.
13. Finally, there is the judgment in Abdul Karim Patwari v. Abdul Rahman 16 C.W.N. 618; 15 C.L.J. 672; 13 Ind. Cas. 364 to which, as I have said, I was a party, and in which it was held that, upon a true interpretation of Section 85 of Tenancy Act, a permanent lease by a ryot is binding as between the parties to the contract. But the cases relied upon in support of that view were those of Tamijuddi v. Asgar Howldar 36 C. 256; 1 Ind. Cas. 942; 13 C.W.N. 183 Bipin Behari Heti v. Amrita Lal Bhuttacharji 9 C.L.J. 76; 3 Ind. Cas. 685 and Manik Borai v. Bani Cahran Mandal 13 C.L.J. 649; 10 Ind. Cas. 469 which, as I have shown above after a careful re-examination of the reports, are not authorities for the proposition. And, on a fresh and independent consideration of the section itself, 1 am forced to the conclusion that the effect of Sub-section (2) cannot but be to render altogether void any sub-lease by a ryot for a term exceeding nine years. The doctrine of estoppel cannot, it seems to be well settled, be invoked or applied so as to defeat the provisions of a statute; and, therefore, I must hold that the learned Sub-Judge was right in finding that the plaintiff's sublease was worthless as the foundation of the title he had set up.
14. It is further urged on behalf of the appellants that the point, on which the decision of the learned Sub-Judge turns, was not raised in the Court of first instance at all, nor before the actual hearing of the appeal in the lower Appellate Court; that the latter Court ought not to have allowed it to be raised at that stage without giving: the appellants a further opportunity for proving, without the aid of the inadmissible instrument, that they had been inducted on to (he land as tenants and acquired a tenant-right and that the appellants have been seriously prejudiced
15. As to this, it is, no doubt, true that the point seems to have been entirely overlooked till the appeal was argued before the Sub-Judge; but it is a point of law, and I think that it could be taken at any stage. Whether or not a remand ought to have been directed is another matter dependent on the circumstances. In this instance, the first circumstance to be noticed is this, that the appellants, who evidently opposed the contention in argument before the Sub-Judge, did not suggest that a remand was necessary. In the next place, it is to be observed that the complaint now pressed is not mentioned in the grounds of appeal to this Court. Then there is no doubt as to the actual facts. That Chandra Kant Majumdar was, and that it was well understood throughout that he was, a ryot is clear. It is clear from the reference near the beginning of the Munsif's judgment to the karfa (i e., under-ryot's) settlement alleged to have been made by that person with Rajai, the plaintiff's predecessor; the fact was apparently conceded before the Sub-Judge; and it is admitted before us. What happened was, as I have already indicated, that the provisions of Section 85 of the Tenancy Act were entirely lost sight of by every one until the hearing in the lower Appellate Court; and, when the point was raised there, it was argued on the one side that the appellants could not succeed because they had no title under the sub-lease, and on the other that their title under it was good save as against the superior landlord, who had never disputed it. That being so, I am not disposed to order a remand now; and I need not, therefore, consider the further question whether it would have been open to the appellants, whose under-tenancy admittedly began with the execution of the permanent sub-lease, to establish such an under-tenancy aliunde merely by proving--for that is all that is suggested to us by the learned Vakil on their behalf--that they paid their lessor nazarana on the execution of the sub-lease and rent in pursuance of it. In the result, then, I would dismiss the appeal with costs, fixing the hearing fee at one gold mohur.
16. I entirely agree. In fact I have recently taken the same view in Second Appeal No. 2954 of 1911.
17. Assuming that Sub-section (3) of Section 85 was intended to be for the benefit of the superior landlord alone, much of the difficulty that may be felt with regard to Sub-section (2) appears in the first instance to have been created by the remark in Tamijuddi v. Asgar Howldar 36 C. 256; 1 Ind. Cas. 942; 13 C.W.N. 183 that it must be taken to have been enacted for the benefit of the landlord alone, because it was placed between Sub-section (1) and Sub-section (3). I do not think the position of Sub-section (2) leads to this conclusion. The scheme of the section is open to another explanation. The 1st sub-section contemplates sub-leases other than by registered instrument. Such are not to be valid at all against the superior landlord, if made without his consent. The 2nd sub-section provides, in effect that no subleases for more than nine years are to be valid at all, whether with or without the superior landlord's consent. These two sub-sections contemplated at the time that the Act was passed, and still contemplate, acts in the future. The 3rd sub-section, accepting the view that judicial decision has placed upon it, provided that a sub-lease for more than nine years, already in existence at the passing of the Act, should be ineffectual as against the superior landlord, in cases where he had not given his consent after the expiry of nine years from the commencement of the Act. This contemplated an act in the past. I do not think any sound argument, the effect of which is to restrict the general terms of Sub-section (2), can be based on the fact that both of two future contingencies are dealt with before reference is made to a past contingency.