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Nitya Ranjan Mukherjee and anr. Vs. Niranjan Chandra and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1941Cal330
AppellantNitya Ranjan Mukherjee and anr.
RespondentNiranjan Chandra and ors.
Cases Referred and Manoranjan Roy v. Selamuddin Ahmad
Excerpt:
- .....was opposed by the petitioners, whose main contention was that s.85a was not applicable to a putni tenure. this contention was negatived by the munsif who granted the prayer of opposite party 1, and this decision was affirmed in appeal by the subordinate judge of burdwan.2. the only point for our consideration in this rule is as to whether a putnidar the incidents of whose tenancy are governed by regn. 8 of 1819 is competent to apply for surrender of the tenure under section 85-a, ben. ten. act, which was introduced by the amending bengal act 6 of 1938. prior to the passing of this amending act, the right of making a surrender to which the landlord was no party, was a privilege which was enjoyed only by a raiyat who was not bound by a lease or other agreement for a fixed period and.....
Judgment:

B.K. Mukherjea, J.

1. This rule is directed against the appellate judgment of Mr. S. O. Chakravarty, Subordinate Judge, Burdwan affirming an order of the Munsif, Second Court, Katwa made in a proceeding under S.85A, Ben. Ten. Act. There is no dispute about the facts of this ease which lie within a very short compass. Opposite party 1 owns a fractional share in a certain putni appertaining to touji No. 93 of the Burdwan collectorate of which the proprietors are the petitioners and opposite parties 2 to 5. On 2lst July 1939, opposite party 1 presented an application before the Munsif, Second Court at Katwa for surrender of his share of the putni under section 85A, Ben. Ten. Act, on grounds, inter alia, that under the present economic conditions prevalent in the country it was not profitable for him to hold the putni any longer. The application was opposed by the petitioners, whose main contention was that S.85A was not applicable to a putni tenure. This contention was negatived by the Munsif who granted the prayer of opposite party 1, and this decision was affirmed in appeal by the Subordinate Judge of Burdwan.

2. The only point for our consideration in this rule is as to whether a putnidar the incidents of whose tenancy are governed by Regn. 8 of 1819 is competent to apply for surrender of the tenure under Section 85-A, Ben. Ten. Act, which was introduced by the amending Bengal Act 6 of 1938. Prior to the passing of this amending Act, the right of making a surrender to which the landlord was no party, was a privilege which was enjoyed only by a raiyat who was not bound by a lease or other agreement for a fixed period and who could surrender the holding under Section 86, Ben. Ten. Act, at the end of the agricultural year. Here also, if there was any incumbrance upon the holding or part of the holding, the consent of the landlord had to be obtained before a valid surrender could be made. Under Section 85A as it stands today any tenure-holder may apply to the Court for permission to surrender his tenure. Sub-section (2) lays down the particular form in which the application is to be made and Sub-section (3) provides that the Court after hearing the parties could grant permission for the surrender of the tenure on such equitable conditions as it might think proper. The subordinate Judge is right in saying that there is no ambiguity in the wording of the section and if this section stood alone we would have no difficulty in holding that a putni which is also a tenure would come within the purview of Section 85A. The question however arises as to whether in view of the provisions of Section 195, clause (e), Ben. Ten. Act, the operation of Section 85A can be attracted to putni tenures. Section 195, Ben. Ten. Act, says inter alia:

Nothing in this Act shall affect . . . . (e) any enactment relating to putni tenures in so far as it relates to those tenures.

3. Certain exceptions are then made in the two subsequent clauses with regard to certain specific provisions of the Bengal Tenancy Act, with which we are not concerned in the present case. The section obviously means that the provisions of the Bengal Tenancy Act cannot override or interfere with the provisions of the putni law as contained in Regn. 8 of 1819 or any other enactment though on matters on which the putni regulation is silent the Bengal Tenancy Act may furnish the rules of substantive law or procedure by way of supplement to the putni law : Durga Prosad v. Brindaban Roy ('92) 19 Cal 504 and Manoranjan Roy v. Selamuddin Ahmad(35) 61 C L J 346. In my opinion the provision of Section 85A, Ben. Ten. Act, does affect and militate against the provisions of the putni regulation as contained in Sections 2 and 3 of Regn. 8 of 1819. Section 2 of the regulation lays down:

It is hereby declared that any leases or engagements for the fixing of rent now in existence, that may have been granted or concluded for a term of years, or in perpetuity by a proprietor under engagements with the Crown, or other person competent to grant the same, shall be deemed good and valid tenures, according to the terms of the covenants 6r engagements interchanged, notwithstanding that the same may have been executed before the passing of Regn. 5 of 1812.

4. The rest of the section is not material for our present purpose. Then again Section 3 states:

The tenures known by the name of putni taluks, as described in the preamble to this regulation, shall be deemed to be valid tenures in perpetuity, according to the terms of the engagements under which they are held.

5. These two sections make it clear that the putni is essentially a tenure in perpetuity with a rent fixed for ever and its incidents are to be regulated by agreement between the parties. If the tenure is to be a perpetual one it cannot obviously lie with one of the parties, to put an end to it without the consent of the other even though the surrender took place through the intervention of a Court of law. The very object for which the putni regulation was introduced and which is set out in extenso in the preamble to Regulation 8 of 1819 would in that case be completely frustrated. I hold therefore that the provision for surrender as contained in Section 85A of the amending Act is totally incompatible with and contrary to the essential incidents of a putni as laid down in the Regulation, and in view of the provision of Section 195 (e), Ben. Ten. Act, it cannot be made applicable to a putni tenure.

6. It has been argued by Mr. Radhika Ranjan Guha that the same reasoning holds good with regard to the other tenures which are not included in the putni and with regard to which Section 85A, Ben. Ten. Act, applies. This argument obviously has no force. It is certainly open to the Legislature to interfere with the contract between the parties and if it so chose the Legislature could very well have laid down that Section 85A would be applicable to putni tenures also. But so long as Section 195 (e) remains as it is, the Courts of law are bound to give effect to its plain meaning. It has been brought to our notice by the learned advocate for the petitioners that the opposite party No. 1 in this case is only a fractional owner of the putni and that the other cosharers did not join with him in making this application.

7. Mr. Guha on the other hand says that the five annas and odd gandas share by itself constituted a separate putni. As this matter has not been investigated by any of the Courts below, I do not propose to express any opinion on this point. But certainly it goes without saying that even if Section 85A would apply to a putni tenure, it could not possibly entitle a fractional putnidar to surrender his undivided share in the taluk unless his cosharers also join with him. In my opinion therefore the view taken by the Courts below is wrong. The orders of the Courts below would be set aside and the application of the opposite party No. 1 for surrender under Section 85A, Ben. Ten. Act, would stand dismissed. The result is that the rule is made absolute with costs in all the Courts, the hearing-fee in this Court being assessed at two gold mohurs.

Derbyshire, C.J.

8. I agree.


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