DOMAN SAHU Vs. GANGU NAYEK

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff, appellants to recover bhaoli rent for the years 1343 and 1344 Fasli. As the claim for the year 1343 Fasli is not pressed, the only question to be determined in this appeal is whether the appellants are entitled to recover bhaoli rent from the defendant for the year 1344 Fasli. The appellants base their claim upon a sadhaua-pataua deed executed in their favour by one Mt. Sona Dei on 11 December 1933, in respect of her proprietary share in the estate in which the respondent's holding is situated. Both the Courts below have held that this deed is a usufructuary mortgage and the appellant not having been registered in Register D are-not entitled to recover rent from the respondent. The appellants however have tendered in evidence in this Court a copy of Register D which has been marked as Ex. A without objection. This document shows that the appellants were recorded as usufructuary mortgagees after the institution of the present appeal and on the basis of it they now claim a decree for the rent of the year 1344 Fasli.

(2.) Now the points which arise in this appeal are precisely those which arose in Umeshwardhari Singh V/s. Neman Singh AIR (1928) Pat 410. In that case there being a difference of opinion between Kulwant Sahay and Macpherson JJ., the following questions were referred to Mullick J.: (1) Whether a mortgagee, whose suit for rent had been rightly dismissed in appeal by reason of the provisions of Section 78, Land Registration Act, 1876, could secure a decree for rent sued for from the Court of second appeal, if he has during the pendency of the second appeal been registered under that Act, and (2) if be could do so, whether the rent was barred by limitation if his name was registered in the Collector's register after the expiry of the period of limitation for bringing a suit for rent and (3) whether having regard to the provisions of Section 100, the Court of second appeal could reverse the decree passed by the Courts below on the. ground that the plaintiff had after the institution of the appeal got himself registered. Mullick J. agreeing with Kulwant Sahay J. answered all these questions in favour of the plaintiff and it seems to me that in view of the decision in that case, there is hardly any room for argument in this appeal. It being suggested, however, that the decision of Mullick J. has not been followed in its entirety in two subsequent cases, I wish to examine briefly the arguments advanced by the respondent on this point. Dealing with the question of limitation, the first point to be considered is what is the effect of Section 78, Land Registration Act, 1876. That Section runs as follows: No person shall be bound to pay rent to any person claiming such rent as proprietor, or manager of an estate or revenue free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under this Act.

(3.) It is contended on behalf of the respondent that by reason of this Section, the liability of the tenant to pay rent does not arise until the landlord claiming to be entitled to the rent is registered as such and consequently the appellants had no cause of action when they brought the suit. The argument is a plausible one, but it appears that the view which has been consistently taken in a number of cases which cannot now be dissented from is that under this Section the right to the rent of an estate being in the proprietor, although not registered, his right to sue for the rent is not taken away; but this Section merely puts an impediment in the way of his realizing the rent until he had complied with the law by obtaining registration of his name as proprietor. This view was set out very clearly in the Full Bench decision of the Calcutta High Court in Alimuddin Khan V/s. Hira Lal Sen (1896) 23 Cal 87 and was accepted as the correct view by Kulwant Sahay J. and Mullick J. in 7 Pat 690.1