LAWS(PVC)-1939-4-53

SREE RADHA GOBINDA JIEU THAKUR Vs. SUSIL KUMAR ROY CHAUDHURY

Decided On April 26, 1939
SREE RADHA GOBINDA JIEU THAKUR Appellant
V/S
SUSIL KUMAR ROY CHAUDHURY Respondents

JUDGEMENT

(1.) This appeal is from the decision of Mohammad Noor J. by which he allowed the claim of the plaintiff landlords under Section 16, Orissa Tenancy Act, to the transfer fees in three suits; the defendant was a transferee who was liable to pay the fees to the landlords under that Section of the Act which I have mentioned. On 11 June 1930, the landlords entered the defendant's name in their register. Some days later kabuliyats were executed by the defendant in favour of the landlords. In those circumstances it is impossible to hold otherwise than that the landlords consented to the transfer. That being so in my judgment it is clear that the landlords were entitled to the fees provided by the Section to which I have referred. The argument put forward by the learned advocate on behalf of the defendant-appellant is in my opinion unsustainable. Section 16 provides that "in cases other than those covered by Section 15" Section 15 of the Act making exception to the liability to pay the transfer fees when a tenure or portion of a tenure is transferred by sale, gift or exchange, the transferee or his successor in interest shall apply to the landlord to whom the rent of the tenure or portion thereof is payable for registration of the transfer, and the landlord shall in the absence of good and sufficient reason to the contrary, allow the registration of the transfer ( Section 16, Orissa Tenancy Act).

(2.) Sub-section (2) of that Section provides that if the landlord "accepts the fee authorized by Sub-section (1) his consent to the transfer shall be deemed to have been given." Now what in my opinion is a wholly artificial argument is that, as the Section provides that the transferee "shall" apply to the landlord, nothing can confer on the landlord any right to the registration fee till that application is made by the transferee. That in my opinion is an impossible construction to be placed upon the Act. Section 16 of the Act does nothing more than place a duty upon the transferee to move, in the sense of a debtor finding out his creditor, but it does not prevent the landlord from moving and (sic) agreeing to the transfer (as in this case before us) before the application contemplated by Section 16 is made.

(3.) If the contention of the learned advocate for the defendant-appellant is correct, it would result in this, that although the transfer has in fact been agreed to by the landlord, the defendant can preclude the landlord from recovering the fee which is rightfully due to the landlord under Section 16 of the Act by not taking action. In the circumstances of this case, as I have already said, the transfer must be deemed to have been consented to by reason of the entry in the register of the landlord on 11 June and the acceptance of the subsequent kabuliyats.