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Amar Chand Roy Vs. Prasanna Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal603,61Ind.Cas.529
AppellantAmar Chand Roy
RespondentPrasanna Dasi
Cases ReferredBari Mohan Pal v. Atul Krishna Base
Excerpt:
bengal tenancy act (viii of 1885), sections 11, 18, 85 - 'transfer', whether includes lease. - .....: 16 w.r. 146 but a particular enactment, wherever found, must be construed strictly as against a general provision. churchill v. crease (1828) 5 bing 177 at p. 180 : 2 m. & p. 415 : 7 l.j. (o.s.) c.p.63 : 130 e.r. 1028, de winton v. brecon corporation (1859) 26 beav. 533 : 28 l.j. cch. 600 : 5 jur. (n.s.) 882 : 53 e.r. 1004 : 33 l.t. (o.s.) 296 : 122 r.r. 229. v. solly (1859) 26 beav. 606 : 53 e.r. 1023 : 33 l.t. (o.s.) 72 : 122 r.r. 263 in the case before us, there is no doubt an apparent inconsistency between sections 18 and 85; but it is easy to reconcile them in the way we have suggested, namely, that section 85 should be read as if it contained the introductory words, 'there provisions are to be taken subject to the provisions hereinbefore contained.' but if this mode of.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. The substantial question in controversy in this appeal is, whether the term transfer in Clause (a) of Section 13 of that Bengal Tenancy Act includes a lease. Mr. Justice Newbould has answered this question in the affirmative on the authority of the decision of this Court in the cases of Hari Mohan Lal v. Atul Krishna Bose 32 Ind. Cas. 503 : 19 C.W.N. 1127 and Ramcharan Bairagi v. Vdai Bairagi 49 Ind. Cas. 515. We have been pressed to hold that those decisions are erroneous, and our attention has been drawn to the judgment in the case of Parushulla Sheikh v. Saikh Chandra Das 28 Ind. Cas. 267 : 19 C.W.N. 1110, where there is a dictum to the effect that the transfers conterppicted in Sections 11 and 18 of the Bengal Tenancy Act are transfers out and out and not partial transfers by way of sub leases. We have arrived at the conclusion that the view taken by Mr. Justice Newbould is correct and that there is really no room for serious argument in this matter.

2. The decision in the case of Hari Mohan Pal v. Atul Krishna Bose 32 Ind. Cas. 503 : 19 C.W.N. 1127 proceeded on the basis that Sections 18 and 85 should he read together, and that Section 85 should be read as if the words Subject to the provisions here in before contained had been inserted therein. Mr. Sen has strenuous contendei that this is not the proper way to interpret statutory provisions which are repugnant, and that we should either hold that the term 'transfer' in Section 18 does not include a 'lease' or adopt the view that Section 85 repeal the provisions of Section 18 with regard to a lease. In our opinion, there is no foundation for either branch of this contention.

3. Section 18 provides that a raiyat holding at a rent, or rata of rent, fixed in perpetuity, shall be Subject to the same provisions with respect to the transfer of, and succeeding to, his holding as the holder of a permanent tenure.' The provisions relating to the transfer of and succession to a permanent tenure are contained in Sections 11 and 12. Section 11 provides that every permanent tenure shall, Subject to the provisions of this Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable property.' It is manifestly impossible to contend with any seraglio of plausibility that the term 'transfer' in Section 11 does not include a 'lease'. On the other hand, if we contrast Section 11 with Section 12, it becomes plain that, where the Legislature intended to have a provision not applicable to all kinds of transfer, they specified the kind of transfer they had in view; for instance, Sub-section (1) of Section 12 refers to a transfer by sale, gift or mortgage. We are consequently unable to accept as well founded the dictum in the case of Parushulla Sheikh v Sital chandra Das 28 Ind. Cas. 267 : 19 C.W.N. 1110, as to the meaning of the expression transfer either in Section 18 or Section 11.

4. There remains the second branch of the contention of Mr. Sen, that Sections 18 and 85 are contradictory, and that sons queenly the latter Section should prevail. In support of this view, reference has been made to the observations of Mr. Justice Banerjee in the case of AssnuVdkhan Bahadur v. Tirthabusini 22 C 68 at P. 691 : 11 Ind. Dec. (N.S.) 453, Mr. Justice Banerjee, however, does not lay down the principle that where there are two repugnant clauses in a Statute, effect must always be given to the subsequent one. On the other hand, he refers to the very important principle that if there are two provisions in a Statute, one of which is of a special character, and the other of a general character, the special provision qualifies the general one. The rule of interpretation applicable in such circumstances is well established, and is supported by cases of the highest authority. Where two co-ordinate Sections are apparently inconsistent, an effort must be made to reconcile them. Ebbs v. Boulncis (1875) 10 Ch. 479 at P. 488 : 44 L.J. Ch. 691 : 33 L.T. 342 : 23 W.R. 820 If this is impossible, the later will generally override the earlier; Wood v. Riley (1867) 3 C.P. 26 : 37 L.J.P.. 24 : 17 L.T. 216 : 16 W.R. 146 but a particular enactment, wherever found, must be construed strictly as against a general provision. Churchill v. Crease (1828) 5 Bing 177 at P. 180 : 2 M. & P. 415 : 7 L.J. (O.S.) C.P.63 : 130 E.R. 1028, De Winton v. Brecon Corporation (1859) 26 Beav. 533 : 28 L.J. Cch. 600 : 5 Jur. (N.S.) 882 : 53 E.R. 1004 : 33 L.T. (O.S.) 296 : 122 R.R. 229. V. Solly (1859) 26 Beav. 606 : 53 E.R. 1023 : 33 L.T. (O.S.) 72 : 122 R.R. 263 In the case before us, there is no doubt an apparent inconsistency between Sections 18 and 85; but it is easy to reconcile them in the way we have suggested, namely, that Section 85 should be read as if it contained the introductory words, 'there provisions are to be taken Subject to the provisions hereinbefore contained.' But if this mode of interpretation is considered objectionable, it is plain that Section 18 refers to a particular class of tenancies, whereas Section 85 lays down the general rule. Consequently, the particular provision must be taken to qualify the general provision : and this is the view which was adopted in Bari Mohan Pal v. Atul Krishna Base 10 M. 295 : 2 Weir 361 : 3 Ind. Dec. (N.S.) 959. We, accordingly, affirm the judgment of Mr. Justice Newbould and dismiss the appeal with costs.

Fletcher, J.

5. I agree.


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