Sarfannessa And Ors. vs Joykrishna Mukhopadhya And Anr. on 1 February, 1888

Calcutta High Court
Sarfannessa And Ors. vs Joykrishna Mukhopadhya And Anr. on 1 February, 1888
Equivalent citations: (1888) ILR 15 Cal 345
Author: W C Petheram
Bench: W C Petheram, Tottenham


W. Comer Petheram, C.J.

1. This is suit to set aside the sale of a putni tenure under Regulation VIII of 1819 on various grounds. The only grounds upon which the suit has been decreed are : that the proclamation of sale was not served according to law, and that the property has been sold for an inadequate price; and this appeal comes before us against that decision, and upon the appeal two points are argued. First, it is argued that even if the Subordinate Judge is right in the conclusion of fact at which he has arrived that the advertisement of sale was not served, still this suit cannot be maintained, because the plaintiff, although he is interested in the putni, is not and never has been registered in the serishta of the zemindar as the owner of the putni, and that without such registration the suit cannot under the provisions of the said Eegulation be maintained.

2. The sections of the Regulation which are relied upon by the defendant in support of this contention are Sections 5 and 6, but before considering the provisions of those sections it is necessary to consider the provisions of Section 3 as well. By Section 3 of that Regulation putni tenures are declared valid, transferable and answerable for debt. It is not necessary for me to read the particular words of the section; all that it is necessary to say is that by that section these tenures are made transferable in perpetuity and are transferable by sale, gift or in any way which the putnidar thinks fit, so that by virtue of that section these tenures are made actual property in the land which the holder of them may dispose of as he chooses, the relation of landlord and’ tenant between the putnidar or his assignee and the zemindar remaining during the whole continuance of the tenure. Then come Sections 5 and 6, and the effect of the provisions of those sections amounts to this, that upon an alienation or transfer by the putnidar the zemindar may-exact a fee, which represents his profit, being the portion of his interest in the property whenever a transfer of the tenure is made, the amount of which is regulated by the Regulation itself; and further than that, until that fee has been paid, the zemindar shall not be bound to register the transfer and further than that, until the transfer has been registered, he shall not be bound to recognise the transfer in any way-that is to say, until his demand has been satisfied and registration has been effected, the old tenant remains his tenant, and the relation of landlord and tenant has not been created between him and the assignee of the putnidar, whatever the arrangement may be between the putnidar and his assignee. This is the effect, so far as I can see, of these sections, that until the terms of the Regulation have been complied with, and until the fee has been paid and the registration effected, the relation of landlord and tenant continues to exist between the landlord and the old tenant, and no privity of contract and no relation of landlord and tenant exits between the landlord and the assignee. But that is all; the Regulation does not say, and it would be very inequitable that it should say, that no interest whatever could be created in the tenure by the assignor, or that no person could obtain any interest whatever in the tenure, without the registration of the transfer. Any interest which could be created consistently with the remaining in existence of the original tenure can be created without the Regulation, and so far as I can see, is not prevented by the Regulation in any way ; and therefore as it seems to me that if the assignee, the plaintiff in this case, can show that he has obtained an interest in the tenure, although it does not amount to an assignment so as to make him a tenant of the landlord and to release his assignor–that is to say, if there has been a sale or a professed sale which is regular and which destroys the tenure in which he is interested, but which fact could be contested by any one as no sale at all–it may be that it would be most inequitable to hold, unless we were driven to hold it by the words of the Regulation, that he is unable to say that this sale is no sale and that it is void as against everybody else.

3. In support of this view we are referred to the case of Gossain Mungul Dass v. Roy Dhunput Singh 25 W.R. 152. This was a case which came before the late Chief Justice Sir Richard Garth and Mr. Justice Birch, and the decision is dated 25th February, 1876. The facts of that case do not appear from the report, and from the report it may well be that the Judges in that case supposed that the sale was being attacked, not because of any irregularity in the sale, but for some other reason. We are, however, referred to the record of the case which has been sought for in the office, and there it appears that, at all events, one of the points was that the sale in that case was irregular and could be attacked on that ground. How that may be I do not know, and whether the Judges had that fact before them, and whether the judgment proceeded on that fact, I cannot say; all that it is necessary for me to say is that, so far as anything appears on this judgment here, there is nothing to show upon what ground the sale was attacked, and therefore it seems to me that that case is distinguishable from the present.

4. The next case which bears upon this point is the case of Chunder Pershad Roy v. Shuvadra Kumari Shaheba 12 C. 622, which came before Mr. Justice Prinsep and Mr. Justice Trevelyan and which was decided on the 8th of February, 1886. That case is distinctly in point, and there the learned Judges distinguished the case of Gossain Mungul Doss v. Roy Dhunput Singh in the same way as that in which I have distinguished it, and they came to the conclusion that, notwithstanding the fact that the Regulation prevents the relation of landlord and tenant from coming into existence, there is .nothing to prevent any person who has an interest in the putni, which interest has been injured by the irregularity in the sale, from showing that this is so and obtaining relief. In our opinion this view, which is the view which has been taken by the learned Judges in that case, is in accordance with the Eegulation, and consequently, following that case, we are of opinion, and we hold, that this objection cannot be maintained.

5. The only other remark which it is necessary for me to make on this part of the case is upon Section 14 of the Regulation and as to that I need only say that that section would seem to indicate that it was the intention of the Legislature that a suit of this kind might be maintained by a person other than the registered proprietor of the putni; so that, lookiDg at the Gontext as well, it also shows that the view which we have taken, and the view which has been taken by Mr. Justice Prinsep and Mr. Justice Trevelyan, is the view which the Legislature intended should be taken, and therefore, as I said before, this objection cannot, in our opinion, be maintained.

6. The next question is the question upon the merits, and is whether the advertisement was served according to law. This is a pure question of fact. [As to this point the learned Chief Justice agreed with the finding of the Court below.]

7. An objection is made as to the form of the decree, and that objection is that the decree, in effect, puts an unregistered assignee in possession. That may or may not be the case, but what the parties are entitled to, after this sale is set aside, is that they are entitled to be reinstated in the same position as they were in before ; and if, as a matter of fact, the assignee was in possession as before, it may be that, so far as the landlord is concerned, his possession was only the possession of the assignor; but if he was in possession by some arrangement with the putnidar, I think he is entitled to have the sale set aside, and that the effect of setting aside the sale will be that the parties must be reinstated in their original position. If he was in possession before, he will be in possession again; but, until he is registered, he cannot be in possession as a tenant to the zemindar. His possession will be that of a putnidar, whether jointly with him or under some arrangement with him ; but his rights are to be reinstated in the position he was in before this sale, which is now declared void, took place. In the result this appeal must be dismissed with costs.

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