CHANDRA SEKHAR MISSIR Vs. JAGARNATH SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of Sinha J. in a second appeal arising out of a suit for a declaration that the plaintiffs interest in a certain permanent tenure has not been affected by the sale which was held in the following circumstances. In September 1987, defendants 1 and 2, the landlords to whom the rent for the tenure was payable, brought a suit against the recorded tenure-holders (these being plaintiff 1, defendants 3 and 6 and another person), and, in execution of the decree, which was passed in that suit, defendants 1 and 2 purchased the tenure on 2l January, 1938, and on 15 March 1939, they obtained possession of it through the executing Court. It appears that on 24th April 1936, plaintiffs 2 to 6 had purchased a share in the tenure in a money decree passed against defendants 4 to 6, that is to say, some of the tenure-holders. The present suit was instituted by the plaintiffs in 1939 for a declaration that the sale held in execution of the rent decree was not binding against them as plaintiffs 2 to 6 had not been impleaded in the rent suit, notwithstanding the fact that they had purchased a share in the tenure before the institution of the suit. The suit was resisted by defendants 1 and 2, (of whom defendant 1 is now dead) on the ground that the landlord had no notice of the transfer and there had been no strict compliance with the provisions of Section 13, Bihar Tenancy Act, which requires that when a permanent tenure is sold in execution of a decree other than a decree for arrears of rent due in respect thereof, the Court, before confirming the sale, shall require the purchaser to pay into Court the landlord's registration fee and such further fee for service of notice of the sale on the landlord as may be prescribed. The Munsif gave effect to the plea and dismissed the suit. But the Subordinate Judge, though agreeing with him that the suit was liable to be dismissed in so far as plaintiff 1 was concerned, he decreed the suit as regards the share purchased by plaintiffs 2 to 6. The suit of plaintiff 1 was dismissed inasmuch as he was a recorded tenant and had been impleaded as a defendant in the rent suit. But the other plaintiffs claim succeeded because they had not been made parties to the rent suit in spite of the fact that thay had acquired by purchase in an execution sale an interest in the tenure. The judgment of the learned Subordinate Judge has been upheld in second appeal, and hence this appeal under the Letters Patent.

(2.) The point which arises in this case is a very short one. It has been found as a fact that plaintiffs 2 to 6 had purchased a share in the tenure in a money decree in the year 1936, that is to say, before the institution of the rent suit, and the question which is to be decided is, what is the effect of their not having been impleaded in the rent suit. The contention which is put forward on behalf of the appellant is that the landlord, not having any notice of the purchase by defendants 2 to 6, was not bound to implead them in the suit, and the decree obtained by them (the landlords) was a rent decree because it was obtained against all the recorded tenants. The Courts below, in deciding this question, have proceeded on the assumption that the landlord's fee, which is required by Section 13, Bihar Tenancy Act, was not paid, and also that no notice was served upon the landlord, as it should have been served, if the fee for the service of such notice as prescribed in the section had been deposited. The question is whether, upon this assumption, the decree obtained by the landlords should be regarded as a rent decree, or merely as a money decree affecting the right, title and interest of the persons impleaded in the suit. Section 11, Bihar Tenancy Act, 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 immovable property. Section 1, Bengal Act (NO. l of 1903) provides as follows: No transfer which has heretofore been made or which may hereafter be made under Section 12, Section 13, Section 17 or Section 18, Ben. Ten. Act, 1885, of a permanent tenure shall be deemed to be invalid merely on the ground that the landlord's fee prescribed by the said Secs.12 and 13 has not been paid.

(3.) It it, therefore, clear that the mere fact that the landlord's fee was not deposited as prescribed by Section 13 cannot make the sale in favour of plaintiffs 2 to 6 invalid. But the learned advocate for the appellants contends that the decree obtained by the landlords must be held to be a rent decree because no notice was served upon the landlord intimating to him that there had been a transfer of an interest in the tenure in an execution sale. The question of notice is not dealt with in" Act l of 1903, but was the subject of certain cases decided by the Calcutta High Court prior to the, enactment of that Act. The earliest case on the point is Kristo Bulluv Ghose V/s. Kristo Lal Singh 16 Cal. 642. In that case there was a suit by a landlord to recover the rent of a darpatni, and the defence was that a certain interest in the darpatni had been transferred before the suit to another person, and therefore, the landlord was not entitled to recover the whole rent from the defendant. To this the landlord's answer was that inasmuch as he had not received notice of the transfer from the Collectorate, the tenant originally recorded was still liable for the rent. It was, however, held that the transfer of the tenure was complete as soon as the document was registered, and the plea of the defendant was a good one. While dealing with the question of notice Petheram, C. J. observed as follows: Then, is there any reason or possibility to say that, notwithstanding the fact that the transfer was complete, this man (the defendant) still remained liable to his landlord. The liability here is a liability in consequence of the estate, and it is admitted that it is an ordinary rule that the liability ceases when the estate is transferred and the vendor ceases to have any estate in the property, but that, in whatever way the1 transfer may be made, the liability remains on the original tenant, until notice has / been given to the landlord. As to that, it is enough for us to say that the Act is absolutely silent upon the point, and we do not think that any such condition of things can be inferred from the provisions of the Act. If the Legislature had intended to impose any such limitation upon the right to transfer, we think they would have said so in so many words. They have not done so, and we think we cannot imply it from what they have said.