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Calcutta High Court
Bistupada Bera vs Srinath Chandra Mandal And Ors. on 7 December, 1928
Equivalent citations: AIR 1929 Cal 258
Author: Suhrawardy


Suhrawardy, J.

1. The facts of this ease are that one Adarmani held the tenure in suit under the landlord defendant 1. The plaintiffs’ case that the heirs of Adarmani sold the tenure to the plaintiffs and defendant 2, the conveyance being obtained in the name of defendant 2 alone. Thereafter the landlord obtained a decree for rent against Adarmani’s heirs and defendant 2 and in execution of the decree purchased the tenure himself. The plaintiffs thereupon brought the present suit for a declaration of their two-thirds right in the tenure. Defendant 1 contended that the disputed land was purchased by defendant 2 alone and not by the plaintiffs and defendant 2 as alleged in the plaint. Both the Courts below have passed a decree in favour of the plaintiffs. The decision of the lower appellate Court is based on the finding that after the purchase of the tenure the plaintiffs and defendant 2 went to defendant 1 to have themselves recorded as tenants, but he did not acknowledge any one as tenant but granted a rent receipt describing defendant 2 as marfatdar of the original tenant. The learned Judge seems to have been further impressed by the fact that the suit was not brought against defendant 2 alone but also against the heirs of the original tenant showing that the landlord had not fully recognized the transferee as tenant. It has been found that the tenure as a matter of fact was purchased by the three brothers. The question, therefore, that arises for decision is whether the decree obtained by defendant 1 was a rent decree or whether it was a money decree which affected the right, title and interest of defendant 2 only. It is argued on behalf of the appellant defendant 1 that though he had the knowledge of the claim of the plaintiffs to a share in the tenure he was not bound to look for his rent beyond the transferee of the tenure. On the other hand, it has been argued on behalf of the respondents that the landlord having come to know of the interest of the plaintiffs in the tenure and it having been found that the tenure was purchased by all the three brothers he was bound to bring a suit for rent against all the three brothers and that the decree obtained against one of them is a money decree.

2. It is conceded that there is no legislative enactment compelling the landlord to recognize the interest of any person appearing before him and claiming an interest in the tenure. The question of recorded or non-recorded tenant is not material in the case of transfer of a tenure, unless it arises in connexion with the question of representation. Before the enactment of Sections 12, 13 and 15, Bengal Tenancy Act, the landlord had the option of demanding exhorbitant fees to recognize transfers or succession- In order to give relief to a tenure-holder and his successors it was enacted that the transfer of a permanent tenure must be by a registered instrument and that the notice of the transfer should be given to the landlord by the Collector with a fee due to the landlord. Under the law as it stands the landlord has no option left in the matter and from the moment he receives notice under Section 12 the liability of the former tenant to rent ceases to exit. Surapati Roy v. Ram Narayan Mukerji A.I.R. 1923 P.C. 88. Similarly liability of the transferee arises whether the landlord recognized him as his tenant or not. Now the question is if the landlord is informed of the interest of any one other than the transferee in whose name the deed of transfer stands is he bound to treat such person as tenant and is he bound in law to bring a suit for rent against the tenure by making such person a defendant ? As I have stated there is nothing in law to make it obligatory upon the landlord to treat as tenant any person of whose interest he may have had notice but who is not a transferee under Section 12. To hold that the landlord should or is, in such circumstances bound to treat a person other than a transferee as his tenant would make his position extremely unenviable. A tenure for example is sold to A, subsequently A and B may both go to the landlord and say that B is the real owner of the tenure and A is merely a benamdar. Suppose the landlord brings a suit against B alone and obtains a decree in execution of which the tenure is sold. A may thereafter turn round and say that he was the real owner and that he was induced by fraud or by some other means to acknowledge the title of B. The landlord may in such a case find himself in great difficulty to realize rent from the tenure.

3. Take another common example. If a person comes to the landlord and tells him that he has some interest in the tenure which stands in the name of another person as transferee, can it be said that the landlord in such a case is bound to treat such a person as tenant ? The fact that the person in whose name the property stands admits the interest of another person will not make the matter very clear for the landlord and will not make him immune from future disputes if the transferee chooses to disown the right of another person in the tenure. Besides, the landlord will find himself at the mercy of unscrupulous persons able to command perjured evidence. After a tenure is sold in execution of a decree against the ostensible transferee the latter may defeat the purchaser by colluding with the landlord or by proving that the landlord had notice of other persons’ interest in it.

4. In this connexion one must not forget the well-known doctrine that a release is not a transfer : Jadunatk Poddar v. Rup Lal Poddar [1906] 33 Cal. 967 Mathura Mohan Saha v. Bam Kumar Saha [1915] 43 Cal. 790. If in the present case defendant 2 had executed a document (much less by word of mouth) releasing two-thirds of the property in favour of the plaintiffs I doubt very much that it would amount to a transfer of a permanent tenure by sale, gift or mortgage within the meaning of Section 12, Bengal Tenancy Act, which the landlord would have been bound to recognize.

5. Under the law it seems to me that as soon as a tenure is transferred under Section 12 the outgoing tenant ceases to have any liability for rent and the incoming tenant is the person whom the landlord must look to for realization of rent. If rent is actually due from a tenure and the person in whoso name the transfer is made is one who represents the tenure any other person having any title in the tenure cannot compel the landlord to treat him as tenant along with the person who is the ostensible transferee. If this were not so, the landlord may be deprived of his fee in cases of ‘successive oral transfers. The transferee may come to the landlord after selling a portion of his tenure privately and say that another person has also got an interest in the property. In this way ho may go on selling parcels of the tenure to others without paying the landlord’s fee and getting such persons recognized by the landlord as his tenants. Taking the common sense view of the matter as well as considering the object of Sections 12 and 13, I do not think that it can be laid down as a universal proposition of law that whenever the landlord gets notice of interest of any other than the transferee, even if it is admitted by the transferee, he is bound to recognize such person as his tenant.

6. Assuming the plaintiffs’ case to be true, they had allowed defendant 2 to represent thorn in the matter of purchase of the tenure, that they had in fact told the landlord that defendant 2 was the person who would represent the tenure, but they did not pay the landlord’s rent and the tenure was put up for sale. They are not in equity or fairness entitled to say that the suit which the landlord has to bring for his rent should also be brought against them.

7. There is an observation by the trial Court that the plaintiffs paid their share of the rent to defendant 2. But the lower appellate Court has not come to any finding on this point. To my mind even if there were such a finding it would have made no difference in the application of the law for if the plaintiffs were anxious to protect their interest they should have seen that the rent reached the landlord. In my judgment the suit for rent brought against the person who is a transferee and of whose purchase the landlord has received notice under Section 12, Bengal Tenancy Act, is a suit’ for rent properly framed and is binding on the tenure. In this view of the law this appeal is allowed and the decrees of the Courts below are set aside with costs in all Courts.

Jack, J.

8. I agree.

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