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Calcutta High Court
Ali Mahamud vs Aftabuddin Bhuya And Anr. on 11 February, 1915
Equivalent citations: 34 Ind Cas 251
Bench: Richardson, Mullick


JUDGMENT

1. This appeal arises out of a suit for arrears of rent brought by the plaintiffs as owners of a separate three-annas share in a certain dar pulni tenure against the defendants as their tenants. The learned Munsif dismissed the suit, on the ground that the plaintiffs had failed to establish their title to the share of the dar-putni which they claimed. In the lower Appellate Court the learned Subordinate Judge has found on the facts that the plaintiffs have made out their title and has given the plaintiffs a decree for arrears of rent at the rate admitted by the defendants.

2. Before us there is no dispute, and under the circumstances there could be no dispute, that plaintiff No. 1 at any rate is entitled to rent in respect of a two-annas share of the dar-putni. The argument which has been addressed to us by the learned Vakil for the defendant No. 1, the appellant before us, has been confined to the defence raised below that Charu, the predecessor of the defendants, purchased one anna out of the three annas in respect of which the plaintiffs claim rent and that in respect of that one-anna share no rent is due from the defendants. It appears that the three-annas share of the dar-putni was sold in execution of a decree for arrears of rent and was purchased by the plaintiffs’ vendor. The latter sold two annas to plaintiff No. 1 and one anna to plaintiff No. 2. Prima facie, therefore, on the facts found by the learned Subordinate Judge there appears to be no answer to the suit. The defendants, however, alleged that the one-anna share was sold to their predecessor before the institution of the rent-suit. The question, therefore, arises whether the sale in execution passed that one-anna share to the plaintiffs’ vendor. It is common ground that Charu was not a party to the decree in execution of which the rent-sale was held. It has been further found that Charu, though he purchased by a registered instrument, did not pay the landlord’s fee prescribed by Section 12 of the Bengal Tenancy Act. In the view taken by the learned Subordinate Judge the fee not having been paid and no notice of the transfer having been given to the superior landlord, the putnidar, the latter was competent to bring a suit against the original tenants without joining Charu.

3. In this appeal it has been contended that, regard being had to the Validating Act (Act I B. C. of 190:0, the landlord was bound by the transfer although his fee was not paid and although no notice of the transfer was given to him. This contention is founded on the cases of Kristo Bulluv Ghose v. Kristo Lal Singh 16 C. 642, Chintamoni Dutt v. Rash Behari Mondal 10 C. 17, Hemendra Nath Mukerji v. Kumar Nath Roy 12 C.W.N. 478 and Girish Chandra Guho v. Khagendra Nath 9 Ind. Cas. 1001 : 16 C.W.N. 64 : 13 C.L.J. 613. The authority of this series of cases is undeniable and the result seems to be that a transfer may be complete upon registration although the landlord’s fee is not paid and no notice of the transfer is given to him. Upon this part of the case the judgment of the learned Subordinate Judge may be open to just criticism. But the argument addressed to us overlooks a further finding of the Subordinate Judge upon a question of fact.

4. By his purchase Charu became one of a number of co-sharers in the dar-putni and the Subordinate Judge finds that Charu and his heirs ‘allowed Asok to represent them to the landlords.” Asok was Charu’s vendor and the finding is based partly on the fact that subsequent to Charu’s purchase he and his heirs paid rent in Asok’s name. All that the Validating Act says is that a transfer is not to be deemed invalid “merely on the ground that the landlord’s fee prescribed by the said Section 12 or 13 has not been paid.” Here the subsequent conduct of Charu and his heirs introduces a new element into the case. We are concluded by the Subordinate Judge’s findings on questions of fact, and on the facts as found, the superior landlords were at liberty to frame their suit for arrears of rent in the manner in which they did frame it and the appellant-defendant cannot now take advantage of the fact that Charu was not impleaded.

5. The result is that the conclusion at which the Subordinate Judge arrived cannot be successfully assailed in second appeal and the appeal must be dismissed with costs.


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