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Chandra Kanta Nath and ors. Vs. Amjad Ali Hazi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal451,61Ind.Cas.466
AppellantChandra Kanta Nath and ors.
RespondentAmjad Ali Hazi
Cases ReferredBamandas Bhattacharyya v. Nilmadhab Saha
Excerpt:
bengal tenancy act (viii of 1885), section 49(b) - sub-lease, permanent, by raiyat to under-raiyat, whether operative against grantor--under-rayiat, tenancy of, termination of. - .....being a raiyat holding at at a fixed rate) to an under--raiyat, the lease is not operative as a permanent lease between the raiyat and the under raiyat. but as the tenancy of an under raiyat may be created without a written lease, the grantee in such a case is an under--raiyat who holds otherwise than under a written lease, and his tenancy is liable to be terminated in the manner provided by section 49(b); till the tenancy has been thus terminated, the grantor cannot treat him as a trespasser.ii. where the lease, purporting to be of a permanent character, is granted by a parson who, on the face of the document, professes to have a higher status than that of a raiyat (for example, that of a tenure--holder, or a raiyat holding at a fixed rate), the grantee, when his title as a permanent.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This reference has been made in connection with a suit for ejectment of an under-raiyat after service of notice on him in accordance with Section 49(b) of the Bengal Tenancy Act. On the 13th March 1895, the pre-deceesor of the plaintiffs granted a Sub-lease to the defendant in respect of the disputed property. The document described the interest of the grantor as that of a kaimi raiyat, that is, a raiyat with a permanent right; because, as pointed out in Meher Ali v. Kalai Khalashi 29 Ind. Cas. 461 : 19 C.W.N. 1129 : 27 C.L.J. 579, the term kaimi imports permanence of occupation but not fixity of rent: in other words, the lessor had an occupancy holding which was heritable but was not held at a fixed rate of rent. The Sub-lease did not fix a term and the defendant has been in occupation for more than twenty years. The plaintiff served a notice on the defendant on the 25th March 1915, which asked him, in aaaordanae with Section 49(b), to quit at the end of the agricultural year next following the year then current. The defendant did not, however, vacate the land. Consequently, the present suit was instituted to eject him. The Court of first instance held that the sub lease was registered in contravention of Section 85(2) of the Bangal Tenancy Act and was not admissible in evidence, Consequently, the defendant must be deemed to hold otherwise than under a written lease and his tenancy was thus terminable in the manner prescribed in Section 49(b). The Trial Court further found that the notice to quit had been duly served, that the tenancy had bean legally terminated thereby, and that there was really no defence to the claim. In this view, a decree for ejectment was made against the defendant. Upon appeal, the Subordinate Judge held that, as between the parties to the contract of tenancy, the law of estoppel was applicable, and the plaintiffs were bound by the agreement to part with the possession of the land permanently in favour of the defendant. The Subordinate Judge accordingly decreed the appeal and dismissed the suit. On second appeal to this Court, the Division Bench held that there was a sharp conflict of judicial opinion as to the true construction of Section 85 and referred the following question for decision by a Full Bench:

is a lease purporting to be of a permanent character granted by a raiyat (not being a raiyat holding at a fixed rate) to an under-raiyat operative as against the grantor.

2. As the question arises in an appeal from an appellate decree, the entire appeal has been referred to the Full Bench for disposal.

3. Section 85 is in the following terms:

(1) If a raiyat Sub-lets otherwise than by a registered instrument, the sublease shall not be valid against his landlord unless made with the landlord's consent,

(2) A Sub--lease by a raiyat shall not be admitted to registration if it purports to create a term exceeding nine years,

(3) Where a raiyat has, without the consent of his landlord, granted a Sub-lease by an instrument registered before the commencement of this Act, the Sub-lease shall not be valid for more than nine years from the commencement of this Act.

4. Sub-section (1) describes the effect of the sub lease in relation to the landlord of the raiyat and provides that if the raiyat Sub-lets otherwise than by a registered instrument, the sub lease shall not be valid against the landlord of the raiyat, unless it is made with the consent of that landlord. We are not concerned in the present case with Sub-section (1), inasmuch as the landlord of the plaintiffs is not a party to these proceedings.

5. Sub-section (2) provides that a sub lease by a raiyat shall not be admitted to registration, if it purports to create a term exceeding nine years. The solution of the question referred to the Full Bench depends upon the determination of the true effeat of this sub-section.

6. Sub-section (3) deals with Sub-leases granted before the commencement of the Bengal Tenancy Act; this does not touch the question raised before us.

7. Sub-section (2), it will be observed, does not in express terms state the effect of registration of a sub-lease in contravention of its terms; it only debars registration of a sublease by a raiyat which purports to create a term exceeding nine years. It is plain that the officer before whom the document is presented for registration can give effect to the prohibition, only if it purports to be, on the face of it, a sub-lease by a person who professes to be a raiyat and creates a sub-tenancy for a term exceeding nine years. If this condition is satisfied, it is incumbent on the officer, on perusal of the document, to refuse registration. If, notwithstanding the fast patent to him that the document is a sub lease by a raiyat for a term exceeding nine years, he proceede to register it, his act is in violation of statutory prohibition, and the registration must be deemed null and void in law: Harendra Lal v. Hari Dasi Debi 23 Ind. Cas. 637 : 41 C. 972 : 27 M.L.J. 80 (1914) M.W.N. 462 : 16 M.L.T. 6 : 18 C.W.N 817 : 19 C.L.J. 484 : 16 Bom. L.R. 400 : 12 A.L.J. 774 : 1 L.W. 1050 : 41 I.A. 110 (P.C.). No question of estoppel can plainly arise in a case of this description, even as between grantor and grantee. But the document may not, on the face of it, purport to be a sublease for more than nine years by a raiyat; the grantor may, for instance, be described as a tenure--holder or as a raiyat holding at a fixed rate of rent. In such a contingency, the officer has no option but to admit the document to registration. If, thereafter, the grantor seeks to establish against the grantee that he was not a tenure--holder or a raiyat at fixed rent, but an ordinary occupancy raiyat, and that the document should not have been admitted to registration, different considerations arise, in such a contingency, the grantee may rely upon the doctrine that the grantor is bound by his representation and cannot be permitted to prove the falsity of the recitals in the document with a view to enable him to derograte from his grant. To this class belongs the decision in Bamandas Bhattacharyya v. Nilmadhab Saha 35 Ind. Cas. 754 : 44 C. 771 at p. 780 : 20 C.W.N. 1340 : 24 C.L.J. 541, where it was held that the doctrine of estoppel bound the grantor and grantee equally and debarred each from disputing the validity of the lease to the detriment of the other. We feel no doubt that the doctrine of estoppel may legtimately be invoked, where one party to the transaction has acted on the faith of the representation made by the other. The question of the true nature of a tenancy is often a matter involved in doubt and uncertainty; if a person professes to be a tenure holder or a raiyat at fixed rates and on that basis grants a permanent sub--lease, he cannot in justice be permitted subsequently to prove as against Ms grantee that he was only an ordinary occupancy raiyat and was incompetent to grant a Sub-lease for more than nine years. We do not overlook that other elements may come into play, if both parties to the transaction are aware of the true circumstances and yet conspire to evade the law by means of false recitals in the document. The arguments addressed to UP, however, have not been directed to this aspect of the matter and we shall not pronounce an opinion upon that class of cases.

8. The question referred to the Full Bench may thus arise in three classes of case:

I Where the lease, purporting to be of permanent character, is granted, on the face of the document, by a raiyit (not being a raiyat holding at at a fixed rate) to an under--raiyat, the lease is not operative as a permanent lease between the raiyat and the under raiyat. But as the tenancy of an under raiyat may be created without a written lease, the grantee in such a case is an under--raiyat who holds otherwise than under a written lease, and his tenancy is liable to be terminated in the manner provided by Section 49(b); till the tenancy has been thus terminated, the grantor cannot treat him as a trespasser.

II. Where the lease, purporting to be of a permanent character, is granted by a parson who, on the face of the document, professes to have a higher status than that of a raiyat (for example, that of a tenure--holder, or a raiyat holding at a fixed rate), the grantee, when his title as a permanent lessee is challenged by his grantor, may invoke the aid of the doctrine of estoppel and plead that the grantor cannot be permitted to prove the falsity of the recitals in the document (on the faith of which he took the lease) so as to enable him to derograte from his grant.

III. Where the lease, purporting to be of permanent character, is granted by a person who, on the face of the document, professes to have higher status than that of a raiyat (for example, that of a tenure holder or a raiyat holding at a fixed--rate) and the grantee invokes the aid of the doctrine of estoppel in answer to a challenge of his title as permanent lessee by his grantor, it may be a matter for argument whether such plea may be defeated by the grantor on proof that they had conspired by false recitals to evade the provisions of the Statute.

9. The case before us clearly falls within the first class. The lease, on the face of the document, is by a raiyat and is for an unlimited term. At this distance of time, no explanation is available as to how, notwithstanding these recitals, it came to be registered in contravention of Section 85(2). The registration was clearly null and void and the document must he excluded from consideration, as if it had never been registered. The defendant, however, wag not a trespasser; he was an under--raiyat who held otherwise than under a written lease. His tenancy was accordingly terminable in the manner provided by Section 49(b) and it has been legally terminated. Consequently, he had no right to remain on the land at the date of the institution of the suit.

10. The result is, that the appeal must be allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored with costs in all the Courts.

Fletcher, J.

11. I agree,

Chatterjea, J.

12. I agree.

Teunon, J.

13. I agree.

Richardson, J.

14. I agree.


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