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Petitioner: SM. ISLAM KHATUN VS Respondent: AHMADUR RAHMAM KARANI
PLD 1952 Dacca 170
PLD 1952 Dacca 170
Before Muhammad Shahabuddin, C. d, and Ellis, J.
Sm. ISLAM KHATUN‑Appellant
Versus
AHMADUR RAHMAM KARANI and another Respondents
Appeal under section 15 of the Letter Patent No. 2 o1 1947, decided on 21st March, 1951, against the judgment of Akram, J.; Calcutta High Court, dated the 4th ‑ March, 1947, in SJ A. No. 210 of 1943.
Bengal Tenancy Act (VIII of 1885), S. 26‑E‑Know ledge of the landlord through notice under section 26‑E or other wise‑Transfer binding on landlord.
Non‑compliance with the provisions of section 26‑E would not by itself invalidate the sale in cases where the landlord had knowledge of the transfer.
Analogy of the transfer of permanent tenure does not apply.
Case law discussed.
Imam Hossain Chowdhury and K. M. Hasan, for Appellant.
A. S. M. Mofakhar and M. H. Khondkar, for Respondents.
JUDGMENT
SHAHABUDDIN, C. J.‑---This appeal, which is under the Letters Patent from the judgment and decree, dated the 4th March, 1947, passed by Akram, J. as a judge of the Calcutta High Court, stands transferred to this High Court in virtue of the Bengal High Courts Order. The suit, out of which this appeal arose, was brought by the Mohaluxmi Bank of Chitta gong for a declaration of title to and the recovery of khas pos session of the suit lands in the Noabad taluq, which had been mortgaged to one Mohini Mohan.Dutta on 28th August, 1922. There was an etman tenure in the taluq comprising the suit and other lands and on 12th February 1927 Mohini Mohan Dutta purchased the etman at a sale in execution of a rent decree he had obtained against the etmandar. Under the etman there was a raiyati of Akmal Ali and others, and Mohini Mohan Dutta, the mortgagee, thus became the immediate landlord of that raiyati interest. He then sold to the plaintiff‑Bank the mortgagee's right on 29th June 1931 and the etman right on 10th July 1931 reserving for himself the right of collecting the rent due from the raiyats up to the date of that sale. Sub sequently the plaintiff‑Bank purchased the right of redemption on 10th June 1932, obtained a rent decree in respect of the raiyati interest on 24th June 1935 and in execution of that decree purchased the holding on 9th March, 1937. In the meantime, Mohini Mohan Dutta, in respect of the right to collect the rent, which he has reserved while selling the etman right to the plaintiff‑Bank, had filed a suit against the tenants, Akmal Ali and others, in 1933 describing himself as a landlord and obtained a decree in the execution of which the holding was purchased on 10th June 1935 by the first defendant, who gifted it to his wife, the second defendant. This sale was confirmed only on 30th November, 1935. No notice of transfer or landlord's fee was given to the plaintiff while confirming the sale in favour of the first defendant apparently because the decree was in a suit described as one for rent. The result was that the plaintiff‑Bank, which has obtained the rent decree against the original tenant, did not implead the first defendant in the execution of that decree and proceeded against the holding in the name of the original tenants.
The case of the plaintiff was that the decree obtained by Mohini Mohan Dutta, as well as the sale in pursuance of it, were fraudulent, collusive and illegal ; that the plaintiff‑Bank after purchasing the holding on 9th, March, 1937 obtained sale certificates as well as delivery of possession of the raiyati on 6th March 1938 evicting the under raiyats and got actual khas possession. It also let out the lands to Eksana tenants but those tenants could not cultivate the lands owing to the inter vention of the other defendants who are men of the first defendant. Then followed proceedings under section 145 of the Code of Criminal Procedure in which the land was attached. It was also the case of the Bank that it did not recognise the first defendant as the tenant in respect of the raiyati interests or realise rent from him.
The defence was that the plaintiff‑Bank never got khas possession of the land but that on the other hand it was a benamidar for M4ini Mohan Dutta ; that .the plaintiff‑Bank was aware of the rent decree obtained by Mohini Mohan Dutta against the original tenants as well as the purchase by the first defendant at the sale held in execution of that decree ; that neither the decree' nor the sale was fraudulent or collusive ; and that the purchase of the holding in 1937 by the plaintiff‑Bank was of no legal effect as the first defendant was not made a party to the execution proceedings, although his purchase had been confirmed before the plaintiff‑Bank executed its rent decree. The other defendants contended that they had effected improvements on the suit land ; that they were bona fide tenants in possession; and that they were there fore not liable to be ejected by the plaintiff‑Bank.
The Munsif did not accept the plaintiff's case that the decree obtained by Mohini Mohan Dutta, or the sale of which the first defendant purchased the holding, was fraudulent or collusive, but he came to the conclusion that the plaintiff Bank was not a benamidar for Mohini Mohan Dutta and was not aware that Mohini Mohan Dutta had obtained a decree or the first defendant had purchased the holding at Court auction. He held that in the circumstances the decree obtained by Mohini Mohan Dutta was of no effect, and that, had the first defendant inquired, he would have come to know that the plaintiff‑Bank had become the landlord and that therefore it was his duty to have complied with the provisions of section 26‑E (1) of the Bengal Tenancy Act under which landlord's transfer fees and notice of transfer should be deposited into Court for service and payment to the landlord. He further held that it was only after the legal formalities of the transfer prescribed in the Act had been observed that the landlord could not ignore the purchaser in any proceedings in regard to the rent of tenancies. Findings on other points raised in the suit were also recorded, but we are not concerned with them here.
On appeal, the Additional District Judge of Chittagong modified the first Court's decree. He confirmed the declara tion of title of the plaintiff‑Bank to the Noabad talug as well as to the etman, but he rejected its claim to khas possession of the raiyati. He agreed with the Munsif that the decree obtained by Mohini Mohan Dutta, or the sale at which first defendant purchased for holding, was not collusive or fraudulent ; but he held that neither the Bank nor the first defendant was aware of the purchase by the other. He also held that, for a decree to be executable as a rent decree, the relationship of the landlord and the tenant should be subsis ting during the execution stage; that in the present case, it was not so subsisting when the rent decree of the plaintiff‑Bank was put into execution ; and that, therefore, the rights of the first defendant, who was not impleaded by the plaintiff, were not affected. As regards the requisites under section 26‑E of the Bengal Tenancy Act, the Additional District judge took the view that it was the duty of the Court to insist on their being furnished, and that if the Court confirmed the sale without them, that did not affect the position of the auction‑purchaser as there was no reason to think that failure of the Court to enforce section 26E in this case was due to fraud on the part of the first defendant. For this view, reliance was placed on the decision in Maharaj Bahadur Singh, v. Nari Mollani and another 40 C W N 683.
The plaintiff Bank thereupon took the matter to the High Court in second appeal and during the pendency of the appeal it transferred its interest to the, present respondents. In second appeal, in support of the contention advanced in the Courts below on behalf of the plaintiff‑Bank reliance was placed on the decision in Atul Chandra Bhaduri and others v. Mohini Mohan Mazumdar Chowdhury and others A I R 1939 Cal. 28, while for the defendants it was argued that confirmation of sale passed the title irrespective of notice to the landlord and the decision in Maharaj Bahadur Singh v. Nari Mollani and another (supra) was relied on. It was also contended for them that, just as in the case of permanent tenures, transfer becomes binding on the landlord, even though no notice under section 13 of the Act is given, so also in the case of a transfer of an occupancy holding, the fact that no notice of it was given to the landlord does not affect the validity of the transfer of the tenant's interest.
In Atul Chandra Bhaduri and others v. Mohini Mohan Mazumdar Chowdhury and others (Supra) all the co‑sharers except one filed a suit for rent impleading along with the tenants the remaining co‑sharers landlord whose share had by the time the suit was filed been purchased in execution by his mortgagee, but that mortgagee‑purchaser was not impleaded. Subsequent ly, the co‑sharer decree‑holders themselves purchased the holding and when the mortgagee auction‑purchaser filed a suit for rent impleading the other co‑sharers as well as the original tenants, it was contended that the other co‑sharers had pur chased the holding and that they should therefore be recognised as tenants. This defence was rejected and it was held that in view of the fact that the provisions of section 26‑E were not complied with, the plaintiff could proceed against the holding in the name of the original tenants ignoring the sale.
In Maharaj Bahadur Singh v. Nari Mnllani and another (Supra), during the pendency of a rent suit, the tenant had transferred the entire holding by a registered instrument and in her written statement she mentioned the fact of the transfer. Nevertheless, the transferee, was not made a party to the suit. The notice of the transfer prescribed under section 26 C of the Act and the landlord's fee fixed therein did not however reach the landlord before the document was registered, and the question was whether in a case where after the institution of a suit for rent but before the decree a tenant transfers the holding and the transferee is not added as a party to the rent suit, the decree is a rent decree and its special procedure is available for its execution. It was held that the decree in such a suit is not a rent decree and, in the course of the judgment, it was observed that as soon as a document was registered the title to the holding passed from the transferor to the tranferee and the question whether the landlord was served with a notice of transfer or not was not material, and that it could not be said that the transfer was complete as regards the landlord only when he received notice of transfer and his fees from the Collector. ‑In the judgment, however, notice was taken of the fact that in that case the landlord had knowledge of the transfer and it is clear from the observations occurring at the end of the judgment that it was on the facts of that case that the learned Judge took the view that the claim of the transferee was admissible.
Akram J., who heard the second appeal, considered that Maharaj Bahadur Singh v. Nari Mollani and an other (Supra), was not applicable to the present case but that Atul Chandra Bhaduri and others v. Mohini Mohan Mazumdar Chowdhury and others (Supra), was in point. As regards the transfer of permanent. tenures being binding on the landlord even where landlord's fee or notice has not reached him, the learned judge observed that Act 1 of 1903 validated such transfers and therefore that analogy did not, apply to a case of an occupancy holding. In this view, he set aside the decision of the First Appellate Court and restored that of the First Court, but he gave leave to appeal 4ider clause 15 of the Letters Patent.
The contention advanced on behalf of the appellant before us are to the following effect:‑‑
The decree obtained in 1934 by Mohini Mohan Dutta was no doubt in effect only a money decree but the right of the raiyati passed on the first defendant when the sale in his favour was confirmed on 30th November 1935. The plaintiff Bank executed its rent decree only in 1937 after the interest of the original, tenant had passed on to the first defendant. So the plaintiff‑Bank's subsequent purchase, though at a rent sale, does not affect the first defendant as he was not implead ed in the execution proceedings. The fact that the formalities prescribed under section 26‑E were not observed does not affect the position of the first defendant, as that section did not require him to give notice to the plaintiff‑Bank. It is immaterial whether or not the landlord had knowledge of the transfer as he had no option but to accept the transferee. For a rent decree to be executable as such, there should be according to the Privy Council decision in Arthus Henry Forbes v. Maharaj Bahadur Singh and others 18 C. W. N. 747, the relationship of landlord and tenant subsisting at the time of the decree as well in the execution stage. In this case that relationship ceased when the sale to the first defendant was confirmed and as the first defendant was not impleaded in that execution of the plaintiff's rent decree, the sale in that execution was not binding on him. The observations in the case of Atul Chandra Bhaduri and others v. Mohini Mohan Mazumdar Chowdhury and others (Supra), are not good law as there was nothing in section 26‑E to the effect that its con travention invalidated the sale. On the other hand, the observations in Maharaj Bahadur Singh v. Nari Mollani and another (Supra), referred to above, are supported by Sreemati Binapani Debi v. Banku Behari Mondal 47 C. W. N. 651 ; Atul Chandra Bhaduti and others v. Sheikh Akhtar Ali and others 48 C. W. N. 309 ; Menajuddin and another v. Heronuddin Mullick and others 51 C W N 914 ; and Nrisingha Prasad Bose and others v. Nil Ratan Singha Roy and others 54 C. W. N. 683.
We have been through these decisions and in our opinion the suit was rightly decreed in full.
It is true that under section 26‑E the Court had to issue the notice but that could be done only on the purchaser furnishing the requisites. Under that section the sale was liable to be set aside if the purchaser failed to put in the requisites. In this case, however, the first defendant may with justification plead that as the decree, in the execution of which he became the purchaser, purported to be one for rent, he took it that section 26‑E did not apply ; but we are unable to accept the contention of the learned Advocate for the appellants that the moment the sale was confirmed the holding passed on to the purchaser whether or not the landlord had knowledge of the sale. This argument proceeds on the basis that in the transfer of tenancy the landlord had no option, but at the time of the sales in question that was not the position. The amending Act of 1928 introduced sections 26‑A to 16‑J with the object of making the occupancy right transferable and at the same time securing for the landlord a fixed sum as landlord's fee in the place of salami which he used to receive from the transferee tenant and also the right of avoiding an undesirable tenant by having under section 26‑F as it stood prior to 1938 the holding trans ferred to himself by payment of sale price plus 10 per cent compensation. This deposit he had no doubt to make within two months from the date of notice, but as section 26‑F did not say as to what should be done in cases where no notice was given, it is only fair to take the view that that right should be exercised within a reasonable time of the knowledge of sale See Surjyakumar Mitra v. Noabali I L R 59 Cal. 15 ; followed in Baikuntha Chandra Saha v. Shamsul Huque A I R 1934 Cal. 662. Further, as pointed out on behalf of the respondents, the landlord had the right of realising the rent. That being so, it cannot be said that knowledge of the sale on the part of the landlord was immaterial. The main objection raised by the first defendant to the claim of the landlord against him is that he was not impleaded in the execution of the landlord's rent decree, but unless the plaintiff Bank was aware of the first defendant's purchase how could it make him a party ? As mentioned already, the finding of the Courts below is that neither the plaintiff‑Bank nor the first defendant was aware of the purchase by the other. It is true that it has been held that the relationship of a landlord and tenant should be subsisting not only at the time of the decree but also during the execution stage, but the question is when does that relationship cease in the case of transfer. If knowledge on the part of the landlord of the fact that there has been a transfer is essential for that transfer to be binding on him, then it follows that that relationship does not cease until the landlord has that knowledge.
In Maharaj Bahadur Singh v. Nari Mollani and another (supra) there are no doubt observations supporting the position taken by the appellant that the knowledge of 'the landlord is immaterial, but as already stated the learned Judge at the end of his judgment has observed that he was allowing the claim of the transferee on the special facts of the case. In Raja Nagendra Nath Sinha Saha Roy v, Niranjan Patra, minor and others 41 C. W. N. 1173 cited before us by the learned Advocate for the respondent, the decision in Maharaj Bahadur Singh v. Nari Mollani and another (Supra) is explained as having been based mainly on the ground that the landlord was aware of the transfer. As regards the other decisions relied on by the appellants, all except Atul Chandra Bhaduri and others v. Sheikh Akhtar Ali and others, (Supra) relate to cases where the landlord having knowledge of the transfer did not implead the transferee. The last paragraph of the judgment in Menajuddin and another v. Heronuddin Mullick and others, (Supra) is significant. It clearly indicates that if in that case it had been established that the landlord was not aware of the sale the conclusion would have been different. If the view of the learned judges was that, irrespective of the knowledge of the landlord, the transfer became binding on him, then that observation would not have been made.
In Atul Chandra Bhaduri and others v. Sheikh Akhtar Ali and others (Supra), confirmation of sale without payment of the landlord's fee has been regarded as on the same footing as a decree passed in a suit in which deficit Court‑fee has not been paid, and it was held that as the decree in the latter case does not become void, so also the sale confirmed without the deposit of the landlord's fee. But the question of notice to or knowledge of the landlord does not appear to have been considered in that case. The learned Advocate for the appellant concedes that the decisions other than Atul Chandra Bhaduri and others‑v. Sheikk,Akhtar Ali and others (Supra), emphasize the fact tlyat the1andlord was aware of the transfer and yet he did not implead the transferee. He is unable to cite before us any decision wherein a transfer, of which the landlord had no knowledge, was accepted by Court as binding on him.
As regards the decision in Atul Chandra Bhaduri and others v. Mohini Mohan Mazumdar Chowdhury and others (Supra), if the observations contained therein were intended to lay down that non‑compliance with the provisions of section 26‑E would by itself invalidate the sale even in cases where the landlord had knowledge of the transfer, we are not prepared to agree with it. In our opinion, knowledge of the landlord through notice prescribed under section 26‑E, or otherwise is necessary for the transfer to become binding on him. We agree with Akram J. that the analogy of the transfer of permanent tenure does not apply to this case.
We, therefore, dismiss the appeal with costs.
ELLIS. J.---‑I agree.
A.H. Appeal dismissed.