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Mukundalal Ray Vs. Sudarshan Mukherji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal550
AppellantMukundalal Ray
RespondentSudarshan Mukherji
Excerpt:
- .....in matter of the kind under consideration, is form no. 3 rule no. 27(1) says:in each case, under rule 25, notices, other than those to be served on the collector, shall be forwarded by post, registered under chapter 6 of indian post office act, 1898, (6 of 1898), and the fee required for a special acknowledgment shall be paid.5. the procedure as regards the drawing up of the notice and the direction as to how it is to be served on the landlord, is contained in section 26-c, sub-section (3) of the act which says that:when any such instrument (that is an instrument of transfer) is admitted to registration, the registering officer shall send to the collector the landlord's transfer fee, the prescribed cost of transmission thereof and the notice of the transfer in the prescribed form, and.....
Judgment:
ORDER

Costello, J.

1. These two rules are directed against an order made by the Munsif of Munshiganj, dated 30th June 1933, whereby he rejected two applications made by the present petitioner, Mukundalal Ray of Nagarnandi, Under Section 26F, Ben. Ten. Act (8 of 1885), as amended by Act 4 passed by the Bengal Legislative Council in 1928. The applications were opposed by the opposite party in the present proceedings) Sudarshan Mukherji (who was the purchaser of the holdings to which the applications refer), on the ground that the applications were made beyond the limit of time provided for by the terms of Section 26-F. There was also a subsidiary ground that the applicant could have no relief without paying off the mortgage debts, which the purchaser had paid off after he had purchased the holdings in question. The applications were filed on 1st December 1932. One of the kabalas effecting the transfer of one of the holdings was dated 9th April 1932. The other kabala was not filed in the proceedings before the Munsif. A notice of the transfer of the holdings was affixed on the notice board of the appropriate Collectorate on 30th May 1932. It was kept on the notice-board for a period of one month and then on 30th June 1932, an order was recorded to the effect that notice had been served by being displayed on the notice-board. The learned Munsif came to the conclusion that the applicant 'should have come within sixty days from 30th June 1932' and he accordingly, held that, as the applications were only filed on 1st December 1932, the applicant, as the landlord of the transferred holdings, had not 'come' within the prescribed period from the date of the service on the notice-board. The applicant's case was that by reason of the notices having been sent to a wrong address he had never received them. The learned Munsif took the view that the law prescribes service by affixation on the notice-board under certain conditions and that such service was a proper service.

2. Section 26-F (1) so far as relevant for our purpose, says that:

The immediate landlord of a holding or the transferred portion or share may, within two months of service of notice issued Under Section 26-C or Section 26-E, apply to the Court that the holding or portion or share thereof shall be transferred to himself.

3. It is necessary therefore to ascertain what is meant by service of notice for the purpose of this section. The manner of service is laid down in Chapter 5 of the Bengal Government Rules, which were made in the exercise of powers conferred by Sub-section (7) of Section 39 and Section 189 of the Act and were published on 28th March 1929. Rule 25(1) runs as follows:

Notices Under Sections 12, 13, 15, 18(1)(a), 26-C, 26-E, 26-F, 26-H and 48-H of the Act shall contain, so far as may be possible, the particulars given in forms Nos. 2 to 7 appended to these Rules.

4. And the relevant form, in matter of the kind under consideration, is form No. 3 Rule No. 27(1) says:

In each case, Under Rule 25, notices, other than those to be served on the Collector, shall be forwarded by post, registered Under Chapter 6 of Indian Post Office Act, 1898, (6 of 1898), and the fee required for a special acknowledgment shall be paid.

5. The procedure as regards the drawing up of the notice and the direction as to how it is to be served on the landlord, is contained in Section 26-C, Sub-section (3) of the Act which says that:

When any such instrument (that is an instrument of transfer) is admitted to registration, the registering officer shall send to the Collector the landlord's transfer fee, the prescribed cost of transmission thereof and the notice of the transfer in the prescribed form, and the Collector shall cause the landlord's fee to be transmitted to and the notice to be served on the landlord named in the notice or his common agent, if any, in the prescribed manner.

6. Now the prescribed manner is as laid down in Rule 27(1): so that normally notices will be effected by registered post. Rule 27(2) seems to be intended to cover all cases where the sending of notices by registered post has not the effect of bringing to the knowledge of the landlord the fact that a transfer has taken place. Rule 27(2) runs as follows:

If an acknowledgment for a notice, sent by registered post, cannot be obtained, the notice shall be served by affixing a copy in the office of the Collector, for a period of one month, and such notice shall thereupon be deemed to have been duly served.

7. It follows therefore that if the special acknowledgment referred to in Rule 27(1) cannot be obtained, service can then take place by the notice being displayed in the office of the Collector for a period of one month. Dr. Basak, on behalf of the present petitioner, has argued that that sub-rule cannot apply in a case, where no acknowledgment has been obtained by reason of the fact that the notice was sent to a wrong address. I am unable however to hold that there is any real distinction between the failure to obtain an acknowledgment because the post office has been unable to deliver the registered cover by reason of it having been wrongly addressed and the case where there has been a failure to obtain an acknowledgment by reason of the addressee landlord refusing to give any such acknowledgment. As the matter stands at present, it would seem that there are only two ways of effecting service of notices for the purpose of Section 26-F, viz., serving the notice on the landlord by means of registered post and the displaying of the notice in the Collector's office for a period of one month. Dr. Basak however argues that Rule 27(2) would not apply where the prescribed form that is to say, form No. 3 has not been properly or accurately filled in in the first instance. It is to be observed that in that form spaces are provided for the names of the landlords and their postal addresses and in the schedule to the form there is a column, in which is to be entered the khatian number of the landlord of the tenancy transferred. There is nothing to show in the present case, how it came about that the notice was sent to a wrong address. But, even if it could have been shown that the particulars given in form No. 3 were not accurate, I think it would still have been necessary to hold that the matter is covered by the provisions of Rule 27(2).

8. That being so, it follows that the landlord had lost his right of pre-emption on the expiry of two months from the end of the month during which the notice had been displayed in the Collectorate. In the present instance therefore in my opinion I am bound to hold that the learned Munsif was right in coming to the conclusion that the applications made to him were too late. As regards the other ground, on which the applications were based, the learned Munsif said as follows:

As regards the amount paid for redemption of the mortgage it must be included in the consideration of the kabala. Of course the applicants must get their proportionate landlord's fees on the amount.

9. It appears that in the applications then before the learned Munsif, there was no claim for the payment of the landlord's fees. The matter therefore really did not arise. Therefore it is clear that nothing that happened in the proceedings before the learned Munsif will operate to prevent the landlord from obtaining such fees as he is entitled to under the provision of Sections 26-G and 26-D. The rules must be discharged with costs, hearing fee one gold mohur in each case.


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