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Tinkari Mukherjee Vs. Mahima Niranjan Ghakrabarty and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1929Cal108,114Ind.Cas.150
AppellantTinkari Mukherjee
RespondentMahima Niranjan Ghakrabarty and anr.
Cases ReferredKristo Bullavy Ghose v. Krizto Lal Singh
Excerpt:
- .....judge in appeal. it is argued that the patni regulation invests the patnidar with absolute right of transfer and, therefore, as soon as the patnidar assigns his interest to any person his liability for rent ceases on and from that date. it is contended on the other side that the liability of the patnidar under the regulation continues till the zemindar registers the transferee as a tenant and has removed the name of the original putnidar. in our opinion the respondent's contention must be upheld.2. section 5 of regulation (8 of 1819) vests the right of alienation of a patni taluk in the holder thereof. it further says that it shall not be competent to the zeminder to refuse to register and otherwise to give effect to such alienations by discharging the party transferring his.....
Judgment:

1. The only point canvassed in this appeal is whether the appellant (defendant 1) is liable for the amount of rent decreed against him. The suit is for patni rent for the period from Magh kist of 1327 to Baisakh 1330, that is, from January 1921 to April 1923. The appellant's contention is that his liability for rent had ceased from 22nd March 1922 the date on which he made a gift of this patni to his daughter-in-law. The trial Court passed a decree against the appellants up to the Magh Kist of 1329 or 17th February 1923--that being the date when the security money was paid and. the name of the transferee was registered in the zamindar's sherista. The decree was upheld by the District Judge in appeal. It is argued that the patni regulation invests the patnidar with absolute right of transfer and, therefore, as soon as the patnidar assigns his interest to any person his liability for rent ceases on and from that date. It is contended on the other side that the liability of the patnidar under the Regulation continues till the zemindar registers the transferee as a tenant and has removed the name of the original putnidar. In our opinion the respondent's contention must be upheld.

2. Section 5 of Regulation (8 of 1819) vests the right of alienation of a patni taluk in the holder thereof. It further says that it shall not be competent to the zeminder to refuse to register and otherwise to give effect to such alienations by discharging the party transferring his interest from personal liability. But he may demand his fee fixed at a certain percentage and may also demand security from the transferee or purchaser to the amount of one-half of the jama or yearly rent payable to him for the tenure transferred. Section 6 says that it shall be competent to the zemindar or other superior to refuse the registry of any transfer until the fee above stipulated is paid and until substantial security for the amount specified is tendered and accepted. Section 5 gives the patnidar a general right of transfer even without the consent of the zemindar but Section 6 protects the right of the zeminder and postpones the discharge of the patnidar from personal obligation till the zeminder is secured in his right to receive rent So long, therefore, as the zemindar is not satisfied that the tranrferee may be looked upon for the rent reserved he has the right to refuse to recognize the transferee. But if he wilfully refuses to approve the security tendered by the purchaser he may be compelled to accept it and give effect to the transfer without delay. These two sections read together indicate that the patnidar has the absolute right ot transfer ; but the zeminder has the right to refuse to recognise the transfer and hold the patnidar liable under the obligation created by the contract until the transferee gives substantial security which is accepted by the zeminder or which he is compelled by the civil Court to accept. A great deal of argument has been wasted on what should be the general law in a matter like this or whether under other enactments liability of a lessee should continue after the transfer These sections of the patm law have been interpreted in several cases In Khettur Paul Singh v. Luckhee Naram Mitter [1871] 15 W.R. 125 the question was between the patmdar and the durpatmdar It arose under Section 5 and 6 patm Regulation The suit was brought by durpatnidar to recover from the patnidar certain sum which he had paid as rent to the zemindar in order to save the patm The durpatnidar, however, had not got his name registered in the zemindar's sherista , and it was, therefore, objected that the payment of rent made by him was voluntary payment It was held that though the durpatnidar was not registered in the zemindar's record he had sufficient interest to protect it from sale In coming to this conclusion the learned Judges observed

In all cases until the transfer is registered the old tenant and the tenure itself are liable for the rent due.

3. The case was carried to the Privy Council Lakhinaram Mitter v. Khettro Pal Singh [1873] 20 W.R. 380. Their Lordships referred to several reported cases in which it was held

The grantor of a darpatm taluk is not bound to recognize the assignee of the tenure until the transfer has been registered in his shensta and that, until such registry has been effected he may sue the original durpatnidar for the rent and sell the tenure in execution of a decree obtained in such suit without notice to the assignee

4. Accepting this view, their Lordships proceeded to observe:

Until the assignment has been registered or the assignee has been accepted by the patnidar as his tenant the assignor is not discharged from liability, and such liability may be enforced by the sale of the durpatni taluk in execution of a decree against him for the rent.

5. In Robert Watson & Co. v Collector of Rajshahye [1869] 13 M.I.A. 160 the Judicial Committee considered the effect of Sections 5 and 6 and at p 175 observed,

It is to be considered that the zemindar has granted a tenure of a particular kind, the incidents of which are well defined by law to a tenant, and that he has a right to look to the ostensible tenant, and is not bound to take notice of the various interest which may be created otherwise than by an authorized alienation.

6. There can be no dispute that the liability of the patnidar does not cease with the transfer before the zemindar has accepted the transfer and registered the name of the transferee by removing the name of the patnidar from the record Some support of this view is to be found in the old case of Peetumburree Dossea v. Chukooram Singh [1846] S.D. 372. The facts are not quite similar but the observation made in that case is relevant. There the patni stood in the names of two persons. Subsequently there was a litigation with a third person and by partition the patni fell to the share of that third person. It was contended by the two persons whose names stood in the sherista of the zemindar that they were not liable for rent, after the date of the allotment. It was. observed by a Bench of three Judges of the Suddar Diwani Adalat:

They deemed the appellants also responsible inasmuch as they have not resorted to. the easy remedy provided by Section 5, Regulation 8 of 1819 of relieving themselves by compelling the zemindar to record the transfer and erase their names.

7. Then it is contended on behalf of the appellants that his liability ought to cease from the date when the fee and the security were offered to the zemindar and he wrongfully refused to accept them. It appears that proceedings were started in the civil Court with reference to this matter under para. 2 of Section 60. Only a copy of the judgment of the District, Judge relating to these proceedings has been filed. That judgment shows that the District Judge directed the zemindar to accept the fee mentioned in Section 5 and he was further directed to advise the defendant 2 (the transferee) to furnish or tender the security mentioned in Section 5. It does not appear from the judgment that any fee or security was offered and refused by the zemindar before the order made by the civil Court. It is said on behalf of the respondent and it seems to be very likely that the zemindar was unwilling to accept the transferee as a tenant because she was a pardanashin lady and the daughter-in-law of the original patnidar. The liability of the patnidar for rent does not cease by the deposit of the fee by the transferee and the tender of the necessary security. He must be ready if the zemindar refuses to accept the security and register his name to follow it by the procedure laid down in Section 6. That was the view which was adopted in Kristo Jeebun Bukshee v. A.B. Mackintosh [1864] W.R. 53 when it was remarked:

We think too, that it is not enough to ask for registration only, but that Section 6 specifically provides what is legally to be done if the request be refused, and that this legal course was not adopted by the appellant.

8. Several oases have been cited before us which relate to the provisions relating to tenures under the Bengal Tenancy Act. It has been held on the wording of Section 12, Ben. Ten. Act, that the transfer is complete as soon as the deed is registered. This has no application to the present 'Case. Then again several cases have been cited in which Section 108, (j), T.P. Act, came under consideration. There too it has been held that the liability of the lessor does not cease before the landlord had accepted the transfer of the lease : Sasi Bhusan Raha v. Tara Lal Singh [1891] 22 Cal. 494. In Chintamoni Dutt v. Bash Behary Mondal [1891] 19 Cal. 17 which was a case under the Bengal Tenancy Act it was observed that

Although it certainly was the case 'before the Bengal Tenancy Act was passed that the Courts always held that the landlord is entitled to look to his recorded tenant for all rent until he receives due notice of the transfer, the present law, as explained by the decision in Kristo Bullavy Ghose v. Krizto Lal Singh [1889] 16 Cal. 642 appears to have altered that state of things.

9. This observation goes to indicate the law outside the operation of the Bengal Tenancy Act. Our conclusion on the facts and the law applicable to this case is that the decree passed by the Courts below is correct in law and that this appeal should be dismissed with costs.


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