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Udoy Chand Mahatab Vs. Sm. Sarojini Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1001 of 1946
Judge
Reported inAIR1952Cal143,55CWN294
ActsBengal Land Revenue Sales Act, 1859 - Sections 7, 8 and 28; ;Bengal Tenancy Act, 1885 - Section 72;;Tenancy Law
AppellantUdoy Chand Mahatab
RespondentSm. Sarojini Devi and ors.
Appellant AdvocatePurushottam Chatterjee, Adv.
Respondent AdvocateHemendra Chandra Sen, ;Satyendra Chandra Sen and ;Sachindra Chandra Das Gupta, Advs. and ;Bireswar Chatterjee, Deputy Registrar
DispositionAppeal dismissed
Cases ReferredSarat Chandra v. Asimon Bibi
Excerpt:
- .....proprietors of the separate accounts. the maharaja claimed protection under section 72 of the bengal tenancy act and maintained that he was not liable to the co-plaintiffs in respect of the kists which had-already been paid to the original proprietors before the receipt of the notice of the auction purchase by him.2. the learned subordinate judge accepted the defence and passed a decree in favour of the original plaintiff sarojini in respect of half of her claim for the rent for the second and the third quarters of 1349 b. s.3. on appeal by the plaintiff sarojini against the dismissal of her claim for the last quarter of 1347 and the first quarter of 1348 b. s. the learned district judge held that section 72 of the-bengal tenancy act was not attracted in respect of a sale held under.....
Judgment:

R.P. Mookerjee, J.

1. Separate accounts were registered under the Hooghly Collectorate in respect of Touzi No. 40. Separate accounts Nos. 40/ 2 and 40/3 were sold on the 25th June, 1941 for arrears of revenue and were purchased by the plaintiff Sarojini Devi. Each of these two separate accounts comprised a 7 anna share of the Touzi. Under this Touzi defendant No. 1 Maharaja of Burdwan who is the appellant in this appeal holds a Patni at an annual rent of' Rs. 3,000/-, in his capacity as Trustee executor of the Estate of late Bholanath Singh Roy. After the purchase in the revenue sale as aforesaid Sarojini Devi sued the Maharaja in respect of Patni rent for the last quarter of 1347, the quarter of 1348 and the second and third quarters of 1349 B. Section in her 14 annas share, impleading the proprietors of the remaining; two annas share as pro forma defendants Nos. 2 to 4. During the pendency of this suit, and at the instance of the original proprietors of that separate account the sale of separate account No. 40/3 was set aside on the 12th May, 1943. After the sale had been set aside the original proprietors of that separate account were impleaded as defendants and were on the prayer of the latter joined co-plaintiffs in the pending suit. They claimed arrears of Patni rent in their 7 anna share for the second and the third quarters of 1349 B. Section The defendant Maharaja paid rent due for the last quarter oft 1347 and the first quarter of 1348 B. S. to the former proprietors of the two separate accounts. He admitted liability to Sarojini Devi the original plaintiff, for the arrears for the second and third quarters of 1349 B. S. Although the sale-for arrears of revenue was held on the 25th of June, 1941, the sale had taken effect as from-the 28th of March 1941 viz., the day after the latest day of payment of the kist which was in arrears. The Maharaja defendant No. 1 received notice of the sale on the' 21st September, 1941-i.e. after the rent for the last quarter of 1347 B. S. and the first quarter of 1348 B. S. had' been paid to the original proprietors of the separate accounts. The Maharaja claimed protection under Section 72 of the Bengal Tenancy Act and maintained that he was not liable to the co-plaintiffs in respect of the Kists which had-already been paid to the original proprietors before the receipt of the notice of the auction purchase by him.

2. The learned Subordinate Judge accepted the defence and passed a decree in favour of the original plaintiff Sarojini in respect of half of her claim for the rent for the second and the third quarters of 1349 B. S.

3. On appeal by the plaintiff Sarojini against the dismissal of her claim for the last quarter of 1347 and the first quarter of 1348 B. S. the learned District Judge held that Section 72 of the-Bengal Tenancy Act was not attracted in respect of a sale held under Act XI of 1859.

4. The present appeal is on behalf of the Maharaja defendant No. 1 and the only point raised is as to whether Section 72 of the Bengali Tenancy Act is attracted in respect of a sale under Act XI of 1859.

5. Section 72 of the Bengal Tenancy Act provides:

'A tenant shall not, when his landlord's interest is transferred, be liable to the transferee for rent which became due after the transfer and was paid to the landlord whose interest was so transferred, unless the transferee has before the payment given notice of the transfer to the tenant.'

The provisions as contained in this section are slightly different from the law as under the Transfer of Property Act. The rent due under the B. T. Act falls due according to the Kists or instalments and not from day to day 'Satyendra v. Nilkantha', 21 Cal. 383.

6. If Section 72 is attracted in the case of revenue sales the defendant No. 1 is entitled to the relief claimed. Under Section 7 of the Land Revenue Sales Act XI of 1859 notices are required to be served;

'Forbidding the ryots and under-tenants to pay to the defaulting proprietor any rent which has fallen due after the day fixed for the last day of payment, on pain of not being entitled to credit in their accounts with the purchaser for any sums so paid.'

One of the objects of this notice is to prevent the ryots from paying to the defaulter any rent which may fall due after the day fixed for the last day of payment, 'Radha Gobinda v. Girija Prosanna', 59 Cal 186 and 'Mahomed Aga v. Jadu Nandan', 2 Cal L. J. 325.

7. Under Section 28 of the Land Revenue Sales Act immediately upon a sale becoming final and conclusive a certificate of title is to be given to the purchaser in the form prescribed in Sch. A of the Act. The certificate as required under Sch. A is in the following terms:

'I certify that A B has purchased under Act 11 of 1859 the Mahal (or share of a Mahal) specified below, standing in the Touzi of District.........and that his purchase took effect on the.........day of.........(being the day after that fixed for the last day of payment).'

If the provisions contained in Section 7 be taken along with Section 28 and Sch. A of the Act it is clear that the revenue sale purchaser gets title to the Mahal with effect from the day following the last day of payment and if any payment is made by the riyot or under riyot to the defaulting proprietor before the last day for payment, such payment will enure to the benefit of the riyot. If any payment be made subsequent to the said last day of payment the riyot is not entitled to claim any benefit in respect of such payment from the purchaser at the revenue sale. There is no question here of any notice subsequent to the revenue sale being served on the ryot as required under Section 72 of the Bengal Tenancy Act. A notice which is issued under S .7 of Act XI of 1859 when an estate is notified for sale is sufficient to put the tenants on their guard from making any payment to the defaulting proprietor of any rent which falls due after the last day of payment after the latest day of payment.

8. Reference may in this connection be also made to Section 30 of the Land Revenue Sales Act which provides that the party certified as a proprietor of an estate by purchase under this Act shall be answerable for all instalments of the Government revenue which may fall due after the latest day of payment.

9. It was also contended before us that Act XI of 1859 is controlled by the provisions contained in the Bengal Tenancy Act (VIII of 1885) which was passed subsequently and the provisions contained in Section 72 of the latter Act should be taken to have repealed by implication certain provisions of Act XI of 1859.

10. The Bengal Tenancy Act does not purport to give an exhaustive enumeration of all the incidents of tenancy but amends and consolidates only certain enactments and not the entire law relating to landlord and tenants, 'Chandrabinode v. Alabux', 48 Cal 184. Further the Bengal Tenancy Act is not parimateria and cannot be referred to for construing the special provisions in the other special Acts. 'Turner Morrison & Co. v. Monmohan', 58 Ind. App. 440 : 36 Cal W. N. 29. Both as regards the procedure to be followed for the realisation of Government Revenue as also as to the rights given to the purchaser under Act XI of 1859 the provisions are materially different from those contained in the Bengal Tenancy Act.

11. Section 195 of the Bengal Tenancy Act further saves any other special or local law not repealed either expressly or by necessary implication by this Act. The provisions contained in the earlier Act of 1859 affirms the rights of the auction purchaser and declares the rights of the purchaser. The provisions contained in Section 72 of the Bengal Tenancy Act merely negative the responsibility of the tenant to the extent as provided in that section. If the contention is to be accepted that Section 72 of the Bengal Tenancy Act has by necessary implications repealed certain provisions of Act XI of 1859 we would be landed in an impossible position. It is not possible to introduce the provisions contained in Section 72 of the Bengal Tenancy Act in the body of Act XI of 1859 merely so far as limiting the liability of the tenant to the date of transfer of the interest of the proprietor, without affecting the entire scheme of the earlier Act. It has not and cannot be contended that the Bengal Tenancy Act supersedes either the procedure provided in and the substantive rights created by Act XI of 1859.

12. So far as Act XI of 1859 is silent the provisions of the Bengal Tenancy Act may be introduced for interpreting the rights of the parties. In 'Sarat Chandra v. Asimon Bibi', 31 Cal 725, it was held that in determining. who are to be deemed to be protected as holders of occupancy ryots reference may be made to Section 30 of the Bengal Tenancy Act as being the 'laws for the time being in force' and relief granted accordingly.

13. This contention cannot therefore be accepted.

14. This appeal is dismissed with costs and the judgment and decree of the Court of appeal below are affirmed.

K.C. Chunder, J.

15. I agree.


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