JUDGMENT
Suhrawardy, J.
1. These three appeals arise out of three rent suits in respect of three holdings which the plaintiff has purchased from the heirs of the holder of a patni tenure. The defendant pleaded that the areas of the holdings and the rents were not correctly described. The plaintiff accepted the defendants’ statement as the amount of the jamas and the suits were decreed by the first Court accordingly. The defendants appealed to the District Judge on the ground that the plaintiff should not have been allowed to amend her plaint and that the suits ought to have been dismissed. The learned Judge, while dismissing the appeals, gave effect to a plea not taken in the grounds of appeal before him or raised in the first Court, viz., that the plaintiff was not entitled to recover the rent claimed under Section 16, Ben. Ten. Act as she had not observed the procedure as laid down under Section 15, of the Act. The learned Judge, in dismissing the defendants’ appeal, added a rider that the plaintiff must get herself recognized by the landlord within a month, on failure of which her suits would stand dismissed.
2. The plaintiff has appealed and has also filed petitions in revision in case no appeal lay from the decree of the lower appellate Court. The respondents have taken a preliminary objection that the appeals are incompetent inasmuch as no appeals lay to the District Judge from the decrees of the Munsif who was specially authorized to try rent suits under Section 153, Ben. Ten. Act. This objection applies to appeals Nos. 667 and 669 of 1921 which are valued at less than Rs. 50. The objection is valid, but the appellant relies on the authority of the case of Kalipada Karmakar v. Sehhar Bashini [1916] 24 C.L.J. 235, and maintains that the appeals in this Court were competent. It is not necessary to examine this question as the appellants have also presented petitions in our revisional jurisdiction in the exercise of which we may set the matter right. We accordingly hold that the decrees passed by the lower appellate Court must be vacated and those of the first Court restored.
3. With regard to Appeal No. 668 of 1921 valued at over Rs. 50 : an appeal lay to the Court of appeal and we have to examine the correctness of the decision of that Court. Now the learned Judge admits that the point that the plaintiff is not competent to maintain the suit under Section 16, Ben. Ten. Act, was not raised in the first Court nor taken as a ground in the memorandum of appeal before him. It is a matter for regret that in such circumstances the learned. Judge should have thought it proper to investigate the question the correct determination of which might depend upon evidence, for I find that one of the grounds taken before us in appeal is that it should have been held that the rent receipts produced by the plaintiff from her landlord furnished legal proof of her recognition. It is possible that the plaintiff could have adduced more evidence in support of the recognition if the objection were taken in time. But since the Judge has considered that question as a pure question of law and come to a decision, I propose to examine the correctness of it as a question of law.
4. Chapter 3, Ben. Ten. Act, makes a well-marked distinction between a transfer of a tenure and succession to it. In the former case, whether the transfer is voluntary or involuntary, the provisions of Sections 12 and 13 must be complied with. In the case of succession by which is meant succession to the interest by inheritance or any mode of devolution other than transfer, the requirements of Section 15 should be observed before the successor can maintain a suit for rent.
5. Now in this case the plaintiff is a transferee from the heirs of the patnidar, who (the heirs) had not got their names registered with the landlord in terms of Section 15, Ben. Ten. Act. As a transferee Section 15 is not applicable in her case : she might be governed by Sections 12 and 13 : but, as it is a patni tenure, those sections do not apply in her case : Gyanada v. Brahmamoye [1890] 17 Cal. 162. The question then arises that her vendors who had succeeded to the tenure not having complied with Section 15 before transferring the tenure, is the plaintiff debarred by the provisions of Section 16 from recovering rent from the defendant, for Sections 15 and 16, Ben. Ten. Act, have been held to be applicable to patni tenures? Durga v. Brindaban [1892] 19 Cal. 504. These sections, being penal in effect, ought to be strictly construed : William Shariff v. Jogmaya [1900] 27 Cal. 535, and Masbahuddin v. Abdul Burkat A.I.R. 1921 Cal. 303. No doubt plaintiff’s vendor could not have recovered rent accruing due during the period of their possession and apparently they would Hot vest their transferee with a right they did not possess; but, in order to attract the bar created by Section 16, two conditions must co-exist : the plaintiff must have succeeded to the tenure and, the rent sued for must be payable to him as the holder of the tenure. In the present case the first condition does not apply to the plaintiff, and it follows that she is not precluded by the provisions of Section 16 from maintaining the present suit. To hold otherwise would lead to an absurdity which presumably was not in the contemplation of the legislature. If, as in the present case, one of the intermediate holders of the tenure who has succeeded to it fails to comply with the provisions of Section 15 and his transferee is, therefore, incompetent to maintain a suit for recovery of rent, the transferee from such transferee and all subsequent transferees will be similarly debarred with the result that the tenants will occupy the-lands rent free for ever. As I have said the section must be strictly construed and I am not prepared to extend its operation beyond its strict terms. I am of opinion that the plaintiff is entitled to a. decree in this case and the learned Judge has acted illegally and without jurisdiction on qualifying that decree in the way he has done Even though an appeal may not lie to this Court under Section 153, Ben. Ten. Act, we may interfere with the decree of the lower appellate Court under Section 115, Civil P.C. The result is that the decree of the lower Court of appeal is set aside and that of the Munsif restored.
6. The appeals are, therefore, dismissed but without costs. The rules are made> absolute in the terms indicated above. The plaintiff is entitled to recover her costs in the Rules, only one hearing-fee of two gold mohurs being allowed and that in Rule 99S of 1921. In the other two Rules no vakil’s fee is allowed, but the plaintiff will be entitled to realize the other costs incurred by her.
Walmsley, J.
7. I agree
