K C MUKERJEE, OFFICIAL RECEIVER Vs. MT RAMRATAN KUER

JUDGEMENT

(1.) This appeal has been heard ex parte there being no appearance on behalf of any respondent. Their Lordships are much indebted to Mr. De Gruyther for the care and candour with which he has explained the considerations arising upon the appeal. The suit was brought on 30 June 1927, by the Official Receiver of the High Court at Calcutta who represents the landlord's interest in a village called Majhauli. Defendant 1 Mt. Ramratan Kuer was sued on the footing that she had taken a transfer of a non-transferable occupancy holding in this village by deed dated 28 September, 1916. The case made against her was that the transfer of the holding attracted certain principles of law laid down in the well known case of Dayamoyi V/s. Ananda Mohan Roy, 1915 Cal 242, and that the landlord was entitled to re-enter upon the holding as upon an abandonment by the tenant. The deed of 28 September, 1916, purported to be a relinquishment by one Ram Kishen and the heirs of one Ganpat of the tenancy right including the right of occupancy to defendant 1 who was the widow of Bansidhari Singh. The purport of the deed was that Ram Kishen and Ganpat had become entitled to the tenancy right as benamidars for defendant 1 and not otherwise. The plaintiff's case on the other hand was that defendant 1 had, prior to the deed, no interest in the tenancy, and that the deed accordingly was in reality a transfer of a non-transferable occupancy holding. The Subordinate Judge accepted the plaintiff's case and made a decree ejecting defendant 1. On appeal to the High Court at Patna, however the learned Judges were of opinion that since the date of the deed in question the plaintiff or his predecessors had recognised the right of the transferee and could not now impugn the transfer. This question depends upon the effect to be given in law to certain rent receipts. The case which the appellant desired to submit to the Board in this appeal is that these rent receipts were given by the patwari and cannot be imputed to him as a recognition of the transfer even if it be held that they bound his ijaradar.

(2.) The decree of the Subordinate Judge was dated 20 January 1930. On appeal the High Court dismissed the suit on 27 April 1933. Pending the appeal to His Majesty in Council the legislature of Bihar and Orissa passed an Act called the Bihar Tenancy Amendment Act, 1934. The assent of the Governor-General to this Act was dated 24 November 1934, and by S. 1 (2) the Act was expressed to come into force on such date as the Local Government might by notification appoint. The date fixed by the Local Government for the commencement of the operation of the Act was 10 June 1935. The first question to which their Lordships have to address themselves is the question whether this Act does not take away from the appellant the right which he is proposing to enforce by bringing this appeal to His Majesty in Council. By S. 10 of the Act certain sections are inserted into the Bengal Tenancy Act of 1885 so far as regards its application to Bihar and Orissa. By new sections numbered 26 (A) to 26 (M) provision is made whereby an occupancy-raiyat is given power to transfer his occupancy- holding. This new right is made subject to the payment of a transfer fee to the landlord, the fee being paid either to the landlord direct or to the Collector for the landlord's benefit. In addition to these provisions which are to take effect in the future, there are two Ss. 26 (N) and 26 (O) expressed and intended to have retrospective action. S. 26 (N) directly governs the present case and is as follows:

(3.) Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the first day of January 1923, and, in the case of the transfer of a portion of a holding, to have accepted the distribution of the rent of the holding as stated in the instrument of transfer, or if there is no such instrument, as settled between the transferor and the transferee. Section 26 (O) provides that in the case of a transfer made on or after the 1 day of January 1923, but before the date of the commencement of the Act, the transferee may pay to the landlord or deposit with the Collector a transferee as therein particularised, and that upon his complying with this condition the consent of every person claiming an interest as landlord in the holding, or portion transferred shall be deemed to have been given to the transfer. The Act contains no saving clause modifying the effect of Ss. 26 (N) and 26 (O).