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Petitioner: ALHAJ KUTUBUDDIN AHMED VS Respondent: ABU JAFAR HRIDWAN UDDIN AHMED AND ANOTHER
P L D 1963 Dacca 304
P L D 1963 Dacca 304
Before Hassan and M. R. Khan, JJ
Alhaj KUTUBUDDIN AHMED‑---Appellant
versus
ABU JAFAR HRIDWAN UDDIN AHMED
AND ANOTHER‑---Respondents
First Appeal No. 152 of 1957, decided on 2nd August 1961.
(a) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Ss. 3(2)(4)(a)(f), 20(2)(3)(4)(5), 9 & 75‑A‑Lease of Rent‑receivers khas land other than agricultural land not exceed ing ten bighas‑Not permissible under S. 9‑S. 9 in conflict with S. 75‑A, both not applicable simultaneously to demise of khas lands but S. 75‑A to prevail‑Cumulative effect of cls. (a) & (f) of S. 3(4) Khas lands held by rent‑receivers, to be directly under tenancy of Provincial Government on rent determined by latter‑Excess of retainable limit can be retained subject to S. 20 (2)(3)(4)(5).
(b) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 75‑A read with Ss. 23 & 56 Contract Act (IX of 1872)‑Lease becoming void for coming into operation of S. 75‑A‑Lease contract becomes unenforceable Doctrine of frustration under S. 56, Contract Act comes into play‑Lease is executory contract and rights in suit properties not vested right‑Hit by S. 56.
Satyabrata Ghose v. Mugneeram Bangur A I R 1954 S C 44 ref.
(c) Stamp Act (II of 1899), Arts. 5, 35 & 61(2)‑Duty on lease, under lease or sub‑lease and agreement to let and sublet governed by Art. 35 but agreement not operating as lease in praesent by Art. 5‑Document not bearing required stamp‑Penalised at 10 times and impounded.
Ahmad Sobhan for Respondents.
AM. Jani Alam, Assistant Government Pleader for the State.
JUDGMENT
M. R. KHAN, J.‑This is a defendant's appeal from an original decree in a suit for specific performance of a contract of lease.
2. The suit out of which this appeal has arisen was instituted alleging the following facts:‑--
The suit lands having an area of 8 gandas in local measure ment and the huts thereon constitute holdings 205 and 206 of Ward `D' of the Chittagong Municipality. Those lands belonged to the defendants 2 to 10 (respondents 2 to 10) and were their khas lands. The plaintiff (respondent No. 1) and the defendants 12 to 18 (respondents 11 to 17) held the suit properties as Bharatias (monthly tenants) under the defendants 2 to 10. While they were in possession of the suit properties as Bharatias, the defendant No. 1 Himangsu Bimal Mitra as Manager of the defen dants 2 to 10 agreed to lease out those properties to them at an annual rental of Rs. 24/8/. It was settled that the lease would be granted to the defendants 12 to 18 and also to the defendant No. 19 on behalf of her husband, the plaintiff: Accordingly, Rent Suit No. 5 of 1955 was brought against them on the 13th January, 1955, and two days thereafter, that is, on the 15th January, 1955, the defendant No. 1 received from them Rs. 350 as premium. Meanwhile, the defendant No. 1 was gained over by the defendant No. 11 (appellant), and it was at his instance that the defendant No. 1 withdrew the said rent suit. Thereafter, on the 18th October, 1955, the defendants 2 to 10 executed a power of‑attorney in favour of the defendant No. 1, empowering him to transfer and settle the suit properties among other lands on their behalf. Accordingly, the defendant No. 1 published a general notice on 2‑11‑55 stating that those lands would be settled. Thereupon the plaintiff and the defendants 12 to 18 approached the defendant No. 1 for taking lease of the suit pro perties. The defendant No. 1 gave out that the previous rent suit against the defendants 12 to 19 having been with drawn, it would not be proper to grant settlement in their names. It was, therefore, settled that the lease in respect of the suit properties would be granted in the name of the plaintiff. Accordingly, a bainanama (memorandum of agreement) was executed by the defendant No. 1 on the 25th November, 1955 on behalf of the defendants 2 to 10 stipulating‑
(i) that the defendant No. 1 would settle the suit properties with the plaintiff for a period of 99 years at an annual rental of Rs. 24‑8‑0 ;
(ii) that the premium for 8 gandas of lands in suit would be payable at the rate of Rs. 600 per ganda. In addition, a further sum of Rs. 500 would be payable as extra premium.
(iii) that from the total premium of Rs. 5,300 the sum of Rs. 350 paid previously on 15‑1‑55 and the further sum of Rs. 400 paid on the date of the bainanama would be deducted, leaving a balance of Rs. 4,550 and
(iv) that the defendant No. 1 would execute the lease and get it registered within one month on receipt of the balance premium of Rs. 4,550,
3. After the execution of the bainanama the defendant No. 1 went to Calcutta from where he wrote to the plaintiff to keep in readiness for the lease. After his return from Calcutta, the defendant No. 1 took the plaintiff to their pleader Kamini Kumar Sen for drafting the proposed lease. At that time, the bainanama and the power‑of‑attorney were shown to that pleader who, how ever, returned the power‑of‑attorney to the defendant No. 1 after taking some notes. He also returned the bainanama to the plain tiff after taking down the schedule of the properties there from. On getting the draft lease from the pleader the next day, the plaintiff detected that an incorrect schedule of the properties was inserted in the draft. The defendant No. 1 misrepresented to the plaintiff that the Kamini Kumar Sen was not returning the power of‑attorney. It was on that plea that the defendant No. 1 did not execute the lease in favour of the plaintiff in pursuance of the contract, although the balance premium of Rs. 450 was offered to him. It was further alleged in the plaint that the defendant No. 11 in collusion with pleader Kamini Kumar Sen and the defendant No. 1 managed to take lease of the suit properties and other lands from the defendant No. 1 on the basis of the said power‑of‑attorney, but the defendant No. 11 did so with know ledge of the plaintiff's pre‑existing contract of lease.
4. The defendants 12 to 19 (respondents 11 to 18) filed a joint written statement supporting the plaintiff's case in full.
5. The defendant No. 11 filed a separate written statement. His case is that in the year 1952 the defendant No. 1 proposed on behalf of the defendants 2 to 10 to lease out the suit properties and their other lands. It was then settled that the defendant No. 11 would take lease of all those properties for 99 years and that a kabala in respect of the superior interest of the lessors would be obtained in favour of Begum Sufia Ahmad, the wife of the defendant No. 11. It was further settled that those tran sactions would be completed after obtaining a power‑of‑attorney from the defendants 2 to 10. Accordingly, the defendants 2 to 10 executed a power‑of‑attorney on 18‑10‑55, appointing the defendant No. 1 and their cashier Surendra Kumar Sarkar as their joint attorneys and empowered them to act and do all things conjointly: On the strength of the said power of‑attorney, a lease for 99 years was executed for valuable con sideration in favour of the defendant No. 11 in respect of the suit properties among other land. Thus, the defendant No. 11 alleged to be a bona fide lessee in. respect of the suit pro perties without any notice of the plaintiff s alleged contract of lease.
6. Among the owners, the defendants 2,4,6 and 10 appeared and filed a joint written statement denying the cases of both the plaintiffs and the defendants No. 11. They, however, admitted to have executed a power‑of‑attorney appointing the defendant No. 1 and Surendra Lal Sarkar as their attorneys having power to act jointly, and categorically stated that the defendant No. 1 along had no power to lease out lands on their behalf. These defendants, however. did not appear at the time of the hearing of the suit.
7. The learned Subordinate Judge decreed the suit holding that the defendant No. 1 as manager of the defendants 2 to 10 had authority to lease out the suit properties, that he duly entered into an agreement for lease with the plaintiff who bona fide accepted the same, that there was no previous legally valid contract between the defendant No. 11 and the defendants 2 to 10 through the defen dant No. 1 and that the lease executed in favour of the defendan t No.11 is bad in law, the same having been hit by section 75‑A of the East Bengal State Acquisition and Tenancy Act, 1950.
8. It is undisputed that the lands in suit belonged to the defendants 2 to 10 and were their khas lands. It appears from the records‑of‑rights Exh. K that out of the three R. S. plots in suit, plot No. 1753 was held in proprietary right and that the remain ing plots 1744 and 1752 were held in permanent tenure right. It is alleged in the plaint that Himangsu Bimal Mitra, the defendant No. 1 was the manager of the defendants 2 to 10. This was admit ted by the defendants 2 to 10 in the first preamble to the lease deed (Exh. B) executed by them in favour of the defendant No. 11. The bainanama, dated 25‑11‑55 (Exh. 1) evidencing the plaintiff's contract of lease was executed by the defendant No. 1. This was proved by the evidence of its scribe (P. W. 3) and the attesting witnesses (P. Ws. 1 and 2) and also by that of the plaintiff (P. W. 4). This bainanama has not been duly stamped, and we shall discuss this matter hereinafter at the appropriate place. For the present, we shall confine our discussion to its merits. The bainanama supports not only the terms of the contract of lease as alleged in the plaint but also the receipt of Rs. 750 in all by the defendant No. 1 from the plaintiff towards the stipulated pre mium of Rs. 5,300. Thus, the contract of lease, dated 25‑11‑55 sought to be specifically enforced by the plaintiff is apparently established. But the validity of this contract of lease is challenged by the defendant appellant on the ground that the defendant No. 1 had no authority to lease out any lands on behalf of the defen dants 2 to 10. This attack was made also in his written statement. Exh. F is the power‑of‑attorney which, according to the fourth paragraph of the plaint, was executed by the defendants 2 to 10 on 18‑10‑55. It appears from Exh. F that the defendants 2 to 10 appointed the defendant No. 1 and their cashier Surendra Kumar Sarkar as their joint attorneys for one year to jointly act and do all necessary things on their behalf in respect of their properties in the district of Chittagong, including the suit properties. It is abundantly clear from the power‑of‑attorney that the two attorneys were empowered to act conjointly and that neither had power to act independently. The power‑of‑attorney was executed out of this Province and was authenticated by the Notary Public, Calcutta. It appears that after the receipt of the power‑of attorney in this Province, it was duly stamped on 12‑11‑55 in accordance with the provision of section 18 of the Stamp Act, 1899. Thus, the power‑of‑attorney was in the hands of the attorneys here at least on the 12th November, 1955, on which date it was stamped in this Province. The said date is prior to the date of execution of the bainanama (Exh. 1), the date of execution of the bainanama being the 25th November, 1955. Thus, according to the power‑of‑attorney, the defendant No. 1 alone had no authority on the said date to lease out the suit properties on
behalf of the defendants 2 to 10. Realising the formidable difficulty created by the power‑of‑attorney, Mr. Ahmed Sobhan, the learned Advocate for the plaintiff‑respondent submits that prior to the execution of the power‑of‑attorney, the defendant No. 1 as the manager of the defendants 2 to 10 had power to deal with and settle lands on their behalf that the defendant No. 1 had given out that besides being the manager he was the attorney of the defendants 2 to 10; that the plaintiff bona fide believed that the defendant No. 1 as manager and attorney had power to lease out lands on behalf of the defendants 2 to 10 and acted in that belief and that in order to defeat the plaintiff's claim the defendant No. 1 in collusion with the defendant No. 11 and Pleader Kamini Kumar Sen (D. W. 8) fraudulently got the name of Surendra Kumar Sarkar inserted in the power‑of‑attorney as one of the attorneys of the defendants 2 to 10. We may, however, observe that no such definite case has been made out in the plaint. Of course, it appears from the evidence of D. Ws. 3 and 4 and Exh. B that the defendant No. 1 was the manager of the defendants 2 to 10 and use to deal with their properties. It is also true that the defendant No. 1 alone issued the general notice (Exh. 2) stating that the suit lands among other lands would be settled. It is further true that the defendant No. I alone executed the bainanama (Exh. 1) without disclosing the name of this co attorney. Again, the defendant No. 1 jointly with his co‑attorney executed the lease deed (Exh. B) in favour of the defendant No. II, although defendant No. 1, had, in his earlier letter (Exh. 3), asked the plaintiff to be ready for the lease deed. All these facts and circumstances may, no doubt, give rise to a suspicion about some foul play on the part of the defendant No. 1, but these, in the absence of any definite case in the plaint as to fraudulent insertion of the name of second attorney in Exh. F, are not themselves sufficient to establish that the defendant No.1 perpetrated a fraud on the plaintiff in collusion with the defendant No. 11 and Pleader Kamini Kumar Sen. Even this suspicion will be shaken when we examine the plaint and analyse the evidence of the plaintiff himself. The plaint refers to two contracts for lease. One between the defendant No. 1 and the defendants 12 to 19 and the second between the defendant No. 1 and the plaintiff. The first contract was said to have been made orally in January 1955 and the second contract was made as per bainanama (Exh. 1) which alone is now sought to be specifically enforced. The first contract has been given up, but pleaded in the plaint only by way of intro duction. Now, coming to the second contract in dispute, we find from the fourth paragraph of the plaint that before applying for the grant of a lease in respect of the suit properties, plaintiff was fully aware of the execution of a power‑of‑attorney on 18‑10‑55 by the defendants 2 to 10. It is stated in the ninth paragraph of the plaint that the defendant No. 1 took the plaintiff to pleader Kamini Kumar Sen for obtaining a draft of the proposed lease and that the power‑of‑attorney was then shown by the defendant No. 1 to that Pleader. The fact of making over the power‑of attorney by the defendant No. 1 to Pleader Kamini Kumar Sen was also admitted by the plaintiff (P. W. 4) in his examination‑in chief. This, the plaintiff had an opportunity to examine the power‑of‑attorney. The plaintiff appears to have knowledge of English. So, it would not have been difficult for him to under stand the power‑of‑attorney typed in English had he cared to look into it. The plaintiff as P. W. 4 stated as follows:
"I know Himangsu Babu (defendant No. 1) since 1955 January. I required of his authority to grant settlement then, but he told us that he will bring the power later Himangsu Babu had sole power as manager before 15‑1‑55."
Thus, the plaintiff was anxious to be satisfied as to the authority of the defendant No. 1 to settlement of lands on behalf of the defen dants 2 to 10. Was it not then all the more necessary for him to look into the power‑of‑attorney when it was made over to Pleader Kamini Sen by the defendant No. 1 in his presence 7 When the suit lands among other lands were advertised for settle ment admittedly on the strength of the power‑of‑attorney executed by the defendants 2 to 10 on 18‑10‑55 and when the plaintiff was anxious to be satisfied as to the authority of the defendant No. 1 to settle lands, it is too much to say that the plaintiff bona fide believed that the defendant No. 1 had full power to lease out lands on behalf of the defendants 2 to 10. At any rate, the suspicion about some foul play on the part of the defendant No. 1 created by certain facts and circumstances was allayed by the above examination of the plaint and analysis of the plaintiff's evidence, On the question of authority of the defendant No. 1, the learned Subordinate Judge, after discussing the evidence, held thus:
"In the circumstances there might be honest belief in the plaintiff and pro‑defendants 12 to 19 that defendant No. 1, Himangsu Bimal Mitra had full authority to grant settlement though in fact the landlords might have tagged another per son to defendant No. 1 Himangsu Bimal Mitra for granting final settlement."
On such finding, the learned Subordinate Judge further held that the defendants 2 to 10 are bound under section 237 of the Contract Act by the contract of lease (Exh. 1) executed by the defendant No. 1. In coming to the finding as above, the learned Subordinate Judge did not appear to have considered the plaintiff's previous knowledge of the existence of the power‑of‑attorney, dated 18‑10‑55, his anxiety to obtain satisfaction as to the authority of the defendant No. 1 to settle lands and the opportunity available to him to examine the power‑of‑attorney at the time of its presentation to Pleader Kamini Sen by the defendant No. 1 in his presence. In view of these facts, we are unable to accept the finding of the learned Subordinate Judge that the plaintiff might have honestly believed that the defendant No. 1 had full authority to grant settlement. As regards the applicability of section 237 of the Contract Act, the said section enacts a rule of estoppel to the following effect : When a third party, because of the words or conduct of the agent, honestly believes in the existence of his authority, the principal is bound by the act done or the obligation incurred to the third party by the agent on behalf of the principal. In the present case, the plaintiff himself was aware of the existence of the power‑of‑attorney executed by the principals, namely, the defendants 2 to 10. Besides, he admittedly wanted satisfaction a to the authority of the agent i.e., the defendant No. 1. Moreover the defendant No. 1 admittedly promised the plaintiff to obtain the power. These facts lean heavily against the contention that the plaintiff honestly believed that the defendant No. 1 had full authority to grant settlement. Therefore, section 237 of the Contract Act is not attracted here. It then follows that the defendant No. 1 alone had no authority to execute the bainanama (Exh. 1) on 25‑11‑55, inasmuch as the power‑of‑attorney authorised the two attorneys to act conjointly and not severally. Prior to the execution of the power‑of‑attorney, the defendant No. I, as manager of the defendants 2 to 10 might have authority to settle lands on their behalf. But the authority of the defendant No. I to settle lands as manager, if any, must be taken to have been withdrawn by the power‑of‑attorney whereby the authority to settle lands on behalf to the defendants 2 to 10 was conferred jointly on the defendant No. 1 and Surendra Kumar Sarkar. As the bainanama Exh. 1 was executed by the defendant No. I alone subsequent to the power‑of‑attorney, the contract of lease created by it was un-authorised and invalid and as such, the same is not binding on the defendants 2 to 10 and cannot be specifically enforced.
9. The defendant appellant resists the plaintiff's prayer for specific performance on the further ground that he himself is a bona fide lessee in respect of the suit properties without any notice of the plaintiff's contract of lease. It appears from the registered patta (Exh. B) that on 28‑1‑56 the defendant No. 11 obtained a lease of the suit properties among other lands for 99 years from the two attorneys named in the power‑of‑attorney (Exh. F) executed by the defendants 2 to 10. The learned Subordinate Judge has found the lease of the defendant No. 1 to be illegal and void, the same having been obtained in violation of the provision of section 75‑A of the East Bengal State Acquisition and Tenancy Act, 1950 (hereinafter called "the Act"). The said section totally prohibits subletting of any khas land by any person with effect from the date of publication of a notification under subsection (3) of section 17 or subsection (1) of section 31 of the Act and provides that such letting, if any, shall be null and void, and the land concerned shall be forfeited to the Provincial Government. The relevant notification under subsection (3) of section 17 was undeniably made on 13‑12‑55 and published in the Gazette on 16‑12‑55. The patta (Exh. B) of the defendant No. 11 was obtained on 28‑1‑56. Thus, the patta being subsequent to the publication of the relevant notification under subsection (3) of section 17 falls within the mischief of section 75‑A of the Act. Hence, the lease of the defendant No. 11 as per Exh. B cannot be invoked to resist the plaintiff's prayer for specific performance of his contract of lease. Thus, the defendant-- appellant's second ground of attack against the plaintiff's prayer for specific performance falls through.
10. In this connection, there has arisen another question whether the plaintiff's contract of lease as per bainanama (Exh. 1) does not similarly fall within the mischief of the said section 75‑A or is not restricted by section 9 of the Act. This question was not considered by the trial Court. As, however, this is a question of law and does not require any further investigation into facts, the same can and should be considered and decided by u9 in this appeal. Section 9 forbids, with effect from the date of publication of a Notification under section 3 (1) of the Act, all kinds of transfers of the rent‑receivers khas lands, except with the previous permission of the prescribed authority. A proviso, however, was subsequently added to this section permitting only sale and mortgage of agricultural lands not exceeding ten bighas, Thus lease of rent‑receivers khas lands, other than agricultural lands not exceeding ten bighas, is not permissible under section 9, except with the previous permission of the prescribed authority. Section 75‑A, on the other hand, totally prohibits the sub‑letting of khas lands of any person, whether he is rent‑receiver or not. Thus, section 9, so far as concerns demise of khas lands of rent‑receivers, is in conflict with section 75‑A. These two sections cannot stand together and apply simultaneously so far as the demise of khas lands is concerned. Of them, section 9 which deals with transfers in general is in the statute book from the very inception, but section 75‑A dealing with sub‑letting alone was subsequently incorporated in the Act by an amending legislation, namely, the East Bengal Act XII of 1954. Now, the rules of inter pretation in such a case appear to be as follows :‑
(i) "If two sections are repugnant, the known rule is that the last must prevail." Vide Maxwell's Interpretation of Statutes 9th edition, page 165.
(ii) "Again, if the co‑existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later," vide ibid, page 171.
(iii) "The rule is that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply", vide (raies on Statute Law, fifth edition, page 205.
11. On these rules of interpretation, section 75‑A, so far as demise of khas lands is concerned, whether such lands 1'elong to rent‑receivers or not, shall prevail over section 9, but with regard to the other matters covered by section 9, that section shall continue to apply. As the suit lands are khas land add as the bainanama of the plaintiff relates to the demise of those lands, section 75‑A (and not section 9) calls for consideration here
12. It is an admitted fact that all interests of all rent receivers were summarily acquired on the 14th April, 1956 by notifi cations issued under subsection (1) of section 3 of the Act. It is also admitted that the defendants 2 to 10 to whom the suit properties belonged were rent‑receivers. Thus, the interests of the defendants 2 to 10 as rent‑receivers were also acquired by the said notifications. Now, clause (a) of subsection (4) of section 3 provides that on and from the date specified in a notification under subsection (1) of that section, all interests of the rent‑receivers including their khas lands and interest in sub‑soil etc. shall vest absolutely in the provincial Government, free from all incumbrances. Simultaneously, clause (of subsection (4) of the said section 3 provides that all such rent‑receivers shall be entitled to hold as…
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