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Calcutta High Court
Gopal Mondal vs Eshan Chunder Banerjee on 17 May, 1901
Equivalent citations: (1902) ILR 29 Cal 148
Author: A A Pratt
Bench: A Ali, Pratt


Amber Ali and Pratt, JJ.

1. The question involved in this second appeal turns upon the construction of Section 85 of the Bengal Tenancy Act. The plaintiff alleges that he has acquired by purchase the disputed land, which consists of several plots, that the defendants Nos. 1 to 10 were korfa raiyats under his vendor and, inasmuch as under Section 85 of the Tenancy Act, the sub-leases granted to them by the previous holder purporting to be mocurrari had expired at the end of nine years from the commencement of the Tenancy Act, lie seeks in this suit to recover khas possession of the land in question. He also alleged that he had served the defendants with a notice under Section 49 of the Tenancy Act. The defendants 11 to 16 are mortgagees under the defendants 1 to 10.

2. The defendants Nos. 6 and 7 filed written statements in which among’ other pleas they urged that the provisions of s. 85 of the Tenancy Act, which debar the grant of subleases for more than nine years, do not apply to under-raiyats, who had obtained subleases before the Act came into force, and that, as their registered pottah was executed some time in the year 1879 (28th Chait 1285), the plaintiff was not entitled to recover khas possession. They also alleged that the plaintiff was himself an attesting witness to their document and was estopped from raising any question regarding its validity. It is not necessary to refer to the other objections in the written statement. The assignee defendants took similar objections.

3. The suit was tried by the Munsif of Bankura who, among other issues, framed the following: “Can plaintiff set aside the bundobust by the potta after expiry of nine years from the time when the Bengal Tenancy Act was enforced? Was the potta executed with the consent of the landlords of the executants?” He held upon the objections of the defendants that, in respect of two of the plots included in the lands in suit, the plaintiff was a tenure-holder and the defendants held the same as raiyats, and that, consequently, the suit so far as those two plots were concerned, was not maintainable. He held also that, although the sublease was not proved to have been granted with the sanction of the superior landlord, yet as Section 85 Sub-Section (3) invalidated the grant only as against the landlord, and as the present question was between the assignee of the grantor and the grantees, the plaintiff was not entitled to recover. He accordingly dismissed the suit.

4. On appeal the officiating District Judge of Bankura has taken a different view of the section. He thinks that the Legislature by Section 85 of the Tenancy Act intended to prohibit in toto subletting for more than nine years. And he adds: “The under-raiyat might have suffered by this provision, but the great object of the Bengal Tenancy Act was to rehabilitate and protect the occupancy raiyat and to confirm him in his holding by all possible means, and Section 85 seems to me to have been framed to assist that’ general purpose of the Act.” Proceeding upon this reasoning he held that the lease given by the plaintiff’s assignor to the defendants under-raiyats, came to an end on the expiration of nine years from the commencement of the Tenancy Act.

5. Now Section 85 of the Tenancy Act runs as follows:

(1) If a raiyat sublets otherwise than by a registered instrument, the sublease shall not be valid against his landlord, unless made with the landlord’s consent.

(2) A sublease by a raiyat shall not be admitted to registration, if it purports to create a term exceeding nine years.

(3) Where a raiyat has, without the consent of his landlord, granted a sublease by an instrument registered before the commencement of this Act, the sublease shall not be valid for more than nine years from the commencement of this Act.

6. This section, like some others, bears evident marks of compromise and, consequently, of somewhat hasty drafting. Sub-section (1) deals with subleases granted after the Act has come into force. It provides that, if a sublease is granted otherwise ihan by a registered instrument, it shall not be valid against the landlord, unless made with his consent- Sub-section (3) refers to subleases granted before the commencement of the Act. Sub-section (2) has no connection with sub-section (3), as it necessarily deals with sub-leases granted after the passing of the Act; for it directs that no sublease should be admitted to registration, if it purports to create a term exceeding nine years. It is contended that Sub-section (3) must also be read with the light of Sub-section (2), and, if this is done, it will show that the intention of the Legislature was that subleases granted before the commencement of the Act without the consent of the landlord, would be absolutely invalid against the whole world, and not merely as against the landlord. If this contention be correct, the result would be that a raiyat, who Las obtained any benefit under the lease in the shape of a bonus, would be entitled to retain the same, although the lease in consideration of which he has received the same will be set aside at the end of nine years.

7. The District Judge himself considers that, if Sub-section (3) of Section 85 is construed as he reads it, it would operate more-” harshly than the provisions of Sub-section (1). We also think that, if the construction contended’ for on behalf of the plaintiff is given effect to, under-raiyats whose subleases had been granted j prior to the commencement of the Act would be placed in a far worse position than those who had acquired their subleases after the Act came into force. An under-raiyat taking a sublease for more than nine years after the commencement of the Act is put upon his guard by the refusal of the Registrar to register the document: if he has paid any consideration for such sublease, he is enabled by the refusal of registration to recover the same from the lessor. But an under-raiyat who had taken a lease before the Act is in a very different position; he paid the bonus upon a contract which, when entered into, was perfectly valid in law. And if the Act ipso facto put an end to such a sublease at the end of nine years, the under-raiyat has no remedy against his lessor. Having regard to the consequences that would result from such an extreme construction of sub-section (3), and also the fact that in the interpretation of statutes the Court must not impute to the Legislature a desire to confiscate or to do away with rights, which have already been lawfully created or which have lawfully vested, we are not prepared to, agree with the opinion of the learned District Judge that the object of the Legislature was to sweep away after the expiration of nine years from the date the Act came into force, all subleases granted by raiyats before the Act, if made without the consent of the landlord. There is certainly nothing in the law itself or in general principles to suggest that the Legislature intended to relieve grantors from their contracts. To give effect to the view expressed by the District Judge would be to allow frauds of a very gross character to be perpetrated by raiyats. They will be enabled to come forward under the authority of the law and ask that subleases deliberately granted by them may be declared invalid on the expiration of nine years from the commencement of the Act, without any commensurate return of the benefit they might have received. -Such a construction to our mind does not seem to be warranted by the law. In our opinion Sub-section (3) invalidates sub-leases granted before the Act without the consent of the landlord as against the landlord, after the expiration of nine years from the passing of the Act.

8. In this connection it may be observed, as has been remarked by the Munsif, that the plaintiff himself was an attesting witness to the sublease, and, without saying that he was estopped by his conduct, it is clear that there is no equity in his favor. In this view of the law, we think the decree of the District Judge must be set aside and the suit dismissed with costs in all the Courts.

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