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Bhicha Ram Sahu Vs. Bishambhar Nath Sahi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.957
AppellantBhicha Ram Sahu
RespondentBishambhar Nath Sahi
Cases ReferredAjodhya Nath Chowdhury v. Keshub Chandra Mukerjee
Excerpt:
chota nagpur encumbered estates act (vi of 1876 b.c.), whether applicable to land outside chota nagpur - scope and effect of act. - .....the old families and estates of chota nagpur.6. the act is described as 'an act to relieve certain land-holders in chota nagpur' and the preamble begins 'whereas it is expedient to provide for the relief of holders of land in chota nagpur.' with section 2 begins chapter 11 and the effective part of the act. this chapter deals with a vesting order and the, effect of such an order. section 2 provides that 'whenever any holder of immoveable property or, when any such property belonging to such holder has been attached in execution of a decree of a civil court, the deputy commissioner within whose jurisdiction such property is situate applies in writing to the commissioner requesting that the provisions of the act be applied to his case, the commissioner may appoint an officer (hereinafter.....
Judgment:

Ashutosh Mookerjee, J.

1. This appeal is directed against the decree of dismissal in a suit to enforce a mortgage security executed by the first defendant in favour of the plaintiff on the 21st October 1902 On the 17th August 1905, the first defendant was declared a dis-qualified proprietor under the Chota Nagpur Encumbered Estates Act, 1876, and his estate was vested in a Manager appointed under Section 2 of that Act. In answer to a notification issued by the Manager, the plaintiff preferred his claim before him on the 4th January 1906. On the 16th August 1906, the Manager determined that he was entitled to realise Rs. 6,843 on the bond and stated that an effort would be made to pay off his dues. The plaintiff, however, objected that Act VI of 1876 could not affect his claim under the bond, as the mortgaged property lay in the District of Shahabad beyond the limits of Chota Nagpur. The Deputy Commissioner, on the 24th October 1906, referred the plaintiff to the Civil Court for the determination of this objection. The plaintiff thereupon commenced the present action on the 19th September 1907 in the Court of the Subordinate Judge of Arrah to realise his dues by sale of the mortgaged properties The defendant, represented by the Manager disputed the amount due and urged that the suit was barred by the provisions of Act VI of 1876. The Subordinate Judge has given effect to the latter objection and has dismissed the suit. On the present appeal the question in controversy is, whether under Act VI of 1876. a vesting order can be made in respect of land lying beyond the limits of Chota Nagpur. On behalf of the appellant, reliance has been placed upon the case of Ajodhya Nath Chowdhury v. Keshub Chandra Mukerjee 11 C.W.N. 1127 but it has not been disputed that the weight of that decision as a binding authority is diminished by the fact that the Court based its conclusion upon admission of Counsel. Reference has also been made to the view taken by the Board of Revenue as to the scope of the Chota Nagpur Encumbered Estates Act. But even if it be assumed that the interpretation placed upon the statute by the Board of Revenue is admissible on the question of its true construction, no assistance is derivable from that quarter, because the Board of Revenue has held contrary views on the subject at different times; the earlier view was in favour of the contention of the plaintiff; its later pronouncement supports the contention of the defendant. Under these circumstances, the scope of the Chota Nagpur Encumbered Estates Act must be determined from an examination of its provisions.

2. It is well-known that the Chota Nagpur Encumbered Estates Act was modelled on the Oudh Talukdars Relief Act 1870. The preamble states that the object of the statute was to provide for the relief of holders of land in Chota Nagpur, who may be in debt and whose immoveable property may be subject to mortgages, charges and liens. This is further emphasised by the provision in Section 2 that where a holder, who has entered upon a course of wasteful extravagance likely to dissipate his property, seeks the protection of the statute, the Lieutenant-Governor shall not assent to the application of the Act in his case, unless such holder belongs to a family of political or social importance or the Lieutenant Governor is satisfied that it is desirable in the interests of the tenants of such holder that his consent should be given. The scope of the statute, therefore, is limited by political or administrative considerations which underlie it, and it must be clearly made out that the statute was intended to have operation not only in respect of land in Chota Nagpur but in respect of all land wherever situated in British India, provided it was owned by a holder of land in Chota Nagpur of the class mentioned. It may be conceded that the introductory words of Section 2, namely, 'any bolder of immoveable property' are of great generality, but the application of these words is obviously limited by the preamble and also by the expression which follows, namely, 'the Deputy Commissioner within whose jurisdiction any such property belonging to such holder is situate.' This latter expression plainly indicates that the statute was intended to apply to immoveable property in Chota Nagpur, because there is no Deputy Commissioner in a Regulation District. Much stress was laid on the provision in Section 2, whereby the Commissioner is authorised to vest in the Manager the management of the whole or any portion of the immoveable property of the holder of or to which the holder is then possessed or entitled, in his own right, or which he is entitled to redeem. This provision, it was contended with much force, had an absolutely unrestricted scope, and was comprehensive enough to include land in any part of British India. Reference was made in this connection to the first Clause of Section 3 which describes the effect of a vesting order, namely, that all proceedings pending at the time of the publication of the order in any Civil Court in British India or in any Revenue Court in Bengal in respect of the debts or liabilities to which the holder is subject shall be barred. The first Clause of Section 3 does not, in my opinion, assist the contention of the respondent; what is barred is a proceeding in respect of the debts or liabilities to which the holder is subject, which, as is plain from Section 2, are differentiated from the debts and liabilities with which his immoveable property is charged. Nor does the third Clause of Section 3, upon which reliance was placed, really avail the respondent; it exempts the immoveable property of the holder from attachment or sale under process of any Civil Court in British India or any Revenue Court in Bengal, for or in respect of the debts and liabilities to which the holder was personally subject before the publication of the vesting order. This exemption clearly applies only to property vested in the Manager and does not throw any light upon the question now in controversy, namely, what property can be validly vested in the Manager under the statute; on the other hand, there are provisions in the statute which plainly indicate its limited scope. Sections 6, 7, 8, and 9, which find a place in the fourth part of the Act, on settlement of debts, deal with the procedure to be followed by the Manager in the determination of debts and inquiry into consideration for leases and grants. Section 10 provides for an appeal from the decision of the Manager to the Deputy Commissioner within whose jurisdiction the property is situated. If we were to accept the contention of the respondent, the Manager might be called upon to decide a question under Section 9 in respect of property situated in any part of British India not within the jurisdiction of a Deputy Commissioner; in such a contingency, the provision for appeal in Section 10 would be obviously illusory. Again, Section 16 which confers on the Manager the powers possessed by the holder for the purpose of realising and recovering the rents and profits, also entitles him to recover property in the possession of a mortgagee or conditional vendee by an application to the Court of the Deputy Commissioner within whose jurisdiction such property is situated. Here again, if the contention of the respondent is well founded, the summary remedy provided must prove entirely unavailing in respect of land situated in Regulation Districts. In my opinion, Sections 10 and 16 plainly indicate that the framers of the statute had in view its application to land situated in Chota Nagpur and not in any other part of British. India. Reference may also be made to Section 23 which saves the jurisdiction of Courts in Chota Nagpur in respect of suits relating to the succession to or claims of maintenance from land brought under the operation of the statute. Hare, again, it is difficult to appreciate why the jurisdiction of Courts in Chota Nagpur alone should be saved in this manner; if the view maintained by the respondent is well-founded, the questions mentioned may arise in respect of land situated in any part of British India; and if the framers of the statute had this contingency in view, they would have inserted a saving Clause of a more comprehensive character, applicable in terms to all Civil Courts in British India. It may be observed incidentally that the Act contemplates in various places, for instance, in Sections 9 and 10, that the Deputy Commissioner himself may be appointed the Manager; to say the least, it seems improbable that the Legislature should have considered it likely that an official of the rank of Deputy Commissioner should undertake the management of an encumbered estate scattered in different parts of British India. In my opinion, the internal evidence furnished by the provisions of the statute points unmistakably to its restricted scope. As Mr. Justice Richardson observed in Mathewson v. Ram Kanai Singh a 38 C. 675 at p. 710; 9 C.L.J. 523 : 1 Ind. Cas. 626 the Act is not scientifically drawn, but is a rough and ready measure applicable to a backward part of the country. Its provisions, as Mr. Justice Pigot pointed out in Kameshar Prasad v. Bhikhan Narain 20 C. 609 at p. 623 were intended to afford relief to holders of land in Chota Nagpur who might be in debt and whose land might be subject to charges; it created, therefore, a sort of administration of the immoveable estate of the debtor, in some respects resembling that pursued in an administration suit, but with this material difference that whereas in an administration suit, the satisfaction of the claims of the creditors primarily in view, in proceedings under this statute, the protection of the debtor and the preservation of his estate as far as practicable inspite of its encumbered condition, is the main solicitude of the authorities concerned. In view of this fundamental different, I am unable to accept the analogy suggested by the learned Advocate-General between a proceeding under the statute, and a proceeding administration where the property to be administered may lie outside the jurisdiction of the administering Court. As Mr. Justice Pigot observed, the Act is so framed as to render it not easy to construe. But an examination of its various provisions furnishes to my mind, ample indication that the Legislature had in view their application only to lands in Chota Nagpur.The wider application claimed by the respondent would lead us into obvious difficulties and would be contrary to the well-settled canon that statutes which confer exceptional exemption and privileges, co-relatively trenching on general rights, are subject to the principle (1824) 3B.&C.; 516; 5 D. & Rule 359; Brunskill v. Watson (1868) 3 Q.B. 418 : 37 L.M.C. 103 : 18 L.T. 432 : 16W.R.1009. The effect of the statute is to confer special privileges upon a particular class of personswho are described as holders of land in Chota Nagpur. One of these privileges is that the question of liability for their debts and the mode of their satisfaction is determined not by the regular Courts but by the Manager A statute of this description, which abridges the jurisdiction of the Civil Courts, must be strictly construed; and in the absence of a statutory provision, which expressly or by necessary implication, lays down that the Act applies to all lands in British India owned by holders of land in Chota Nagpur, I must decline to give the statute so extensive an application. I am not impressed by the difficulties which, if has been suggested, may follow the view I propose to take; the question of management of the property, if any, of the disqualified proprietor beyond the limits of Chota Nagpur certainly does not present any formidable difficulty; nor, so far as I can see, is any special embarrassment likely to be created by the cessation of the power of the proprietor to enter into contracts which involve a pecuniary liability. To my mind, it is a sound and reasonable interpretation of the statute to hold that it has no application to land outside Chota Nagpur and that the privilege enjoyed by a mortgagee from the proprietor in respect of such land to enforce his rights in a Court of ordinary Civil Jurisdiction, has not been abrogated or struck at by any of the provisions of the statute.

3. The result is that this appeal must be allowed, the decree of the Subordinate Judge discharged and the case remanded to him for trial on the merits. The appellant is entitled to his costs in this Court; and under Section 13 of the Court Fees Act, we direct that the amount of Court-fee paid on the memorandum of appeal to this Court be refunded to him.

Beachcroft, J.

4. The only question for consideration in this appeal is, whether the Chota Nagpur Encumbered Estates Act VI of 1876 applies to land lying outside of Chota Nagpur or whether its operation is limited to land lying within that area.

5. The question is practically one of first impression, for though it has once been considered by this Court in the case of Ajodhya Nath Chowdhury v. Keshub Chandra Mukerjee 11 C.W.N. 1127 the decision in that case appears to have been based on the admission of learned Vakils who appeared for the respondents and on a note in the Encumbered Estates Manual of the Board of Revenue, a note which no longer finds a place in that Manual. The case must, therefore, be considered entirely on the provisions of the Act itself. But before proceeding to a consideration of those provisions, it may be observed that the Act is political in its origin and exceptional in its nature, the object of it apparently being to preserve the old families and estates of Chota Nagpur.

6. The Act is described as 'an Act to relieve certain land-holders in Chota Nagpur' and the preamble begins 'whereas it is expedient to provide for the relief of holders of land in Chota Nagpur.' With Section 2 begins Chapter 11 and the effective part of the Act. This Chapter deals with a vesting order and the, effect of such an order. Section 2 provides that 'whenever any holder of immoveable property or, when any such property belonging to such holder has been attached in execution of a decree of a Civil Court, the Deputy Commissioner within whose jurisdiction such property is situate applies in writing to the Commissioner requesting that the provisions of the Act be applied to his case, the Commissioner may appoint an officer (hereinafter called the Manager) and vest in him the management of the whole or any portion of the immoveable property of or to which the said holder is then possessed or entitled in his own right.' Section 3 provides that on the publication of an order under Section 2, (1) all proceedings pending in any Civil Court in British India in respect to the debts and liabilities stated in the application shall be barred and all processes,executions and attachments for or in respect of such debts and liabilities shall become Full and void, (2) the holder of the said property shall not be liable to arrest for the debts and liabilities and his moveable property shall not be liable to attachment or sale under process of any Civil Court in British India, and (3) the holder of the said immoveable property shall be incompetent to deal with the immoveable property and incapable of entering into any contract which may involve him in pecuniary liability. It is obvious that the opening words of Section 2 whenever any holder of immoveable property' cannot be of universal application, but can refer only to such holders of property as are described in the preamble, viz., holders in Chota Nagpur. It is also obvious that the word property' in the clause referring to the application to be made by the Deputy Commissioner can only refer to land in Chota Nagpur. It, therefore, follows that the application for a vesting order can originate only when made by a Holder of land in Chota Nagpur, or when land in Chota Nagpur has been attached in execution of a decree of a civil suit.

7. Any difficulty that is to be felt in a consideration of the question before us arises from the words...'the Commissioner may vest in him (i.e., the Manager) the management of the whole or any portion of the immoveable property of or to which the said holder is then possessed or entitled.' The words as they stand appear to be subject to no limitation, nor is any clause to be found in the Act which in terms limits the vesting order to property in Chota Nagpur. And if the vesting order covers all immoveable property of the holder whether lying within or without Chota Nagpur, proceedings in the Civil Courts to enforce liabilities with which any of the property is charged are barred.

8. The learned Advocate General, who appears for the respondent, supports his contention that the words above quoted in regard to the vesting order are of unlimited application, by drawing a parallel between proceedings under this Act and a scheme for the administration of an insolvent's estate and lie endeavours to support the parallel by reference to the cessation of contractual power or power to alienate the property, in the holder, which is one of the consequences of a vesting order. Now there is a fundamental difference between a scheme for the management of an estate under this Act and a scheme of administration in insolvency. A scheme of the latter class is for the benefit of the insolvent's creditors, while proceedings under the Act are for the benefit of the disqualified proprietor and can by no stretch of imagination be considered to be for the benefit of creditors. In the next place, if the vesting order can apply only to property within Chota Nagpur, it follows as a necessary consequence that the cessation of power to alienate can also apply only to such property. And so far as there is an absolute cessation of contractual power, it is to be noticed that the disability applies only to contracts which may involve the holder in pecuniary liability. The contracts referred to cannot include transactions of the nature of mortgages, for such are included in Clause (a) of Sub-section 3. The practical effect then is that if land outside Chota Nagpur cannot be included in the vesting order, there is no disability imposed on the holder to deal with such land and the basis of the argument of the learned Advocate-General is removed.

9. Though there is no clause limiting in express terms the application of the vesting order to property lying within Chota Nagpur, there are two sections in the Act which indicate that only such property is to be dealt with under the Act. Section 10, which provides for appeals against orders passed under Sections 6, 7, 8 or 9, provides that they shall lie to the Deputy Commissioner 'within whose jurisdiction the property is situate,' the same phrase which occurs in Section 2. This section clearly contemplates the possibility of land of a disqualified proprietor lying in more districts than one, but the words.

10. Deputy Commissioner' can apply only to the principal Revenue Officer of the Non-Regulation Districts of Chota Nagpur, and not to officials in the Regulation Districts. The same words occur in Section 16, the section which enables the Manager to obtain possession of property in the possession of a mortgagee or conditional vendee, by application to the Deputy Commissioner. It is evidently intended that the Manager should be enabled by this section to obtain possession of any property the management of which has been vested in him, yet the section provides a procedure for doing so, which is applicable to Chota Nagpur alone. The language in these two sections seems to exclude the idea that it was ever contemplated that the provisions of the Act should be applied to land lying outside Chota Nagpur, and in the case of an Act of such exceptional nature as the Act under consideration, an Act the provisions of which are framed solely in the interest of a small class in derogation of all the ordinary rights of creditors, its provisions must be construed strictly, and the ordinary rights of creditors must not be interfered with unless the Act provides in plain and unequivocal terms that they shall be.

11. Finally, Section 23 seems to point to the same conclusion. It saves the jurisdiction of the Courts in Chota Nagpur in respect of suits relating to the succession to or claims of maintenance from any immoveable property 'brought under the operation of this Act.' If it was intended that land outside Chota Nagpur should be brought under the operation of the Act, it is not clear why the jurisdiction of Courts in Chota Nagpur alone should be saved.

12. A question of practical difficulty might perhaps arise in connection with Section 2 in so far as it bars pending suits in respect of the holders of debts and liabilities. For though in so far as such liabilities were a charge on property outside Chota Nagpur, the section might not bar the enforcement of the charge in the property, the holder's personal liability could not be enforced in any Civil Court. No such question, however, arises in the present case for the suit was not pending at the time of the publication of the vesting order. Nor will any difficulty arise under sub Section 3(6) for the words 'such property' in that clause must refer to the property in the vesting order.

13. I would, therefore, allow this appeal with costs and remand the case to the Subordinate Judge for decision on the merits, on the footing that no property outside Chota Nagpar is affected by the provisions of the Act.


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