Patna High Court
Mahant Gobind Ramanuj Das vs Rani Debendrabala Dasi on 11 April, 1919
Equivalent citations: 52IND. CAS.231, AIR 1919 PATNA 507
JUDGMENT
1. This is an appeal, from a decision of the Sub-Deputy Collector of Puri, dated the 4th June 1918, decreeing the suit of the plaintiff, who represents the Paikpara Estate, against the defendant-appellant, Mahant Gobind Ramanuj Das, for a sum of Rs. 14,289-3-0, being the fee payable under Section 16 of the Orissa Tenancy Act for the registration of the appellant's name in the respondent's registers, and interest on that sum at 121/2 per cent. per annum.
2. No oral evidence was adduced by either party at the trial, and the only documentary evidence put in was the deed of transfer and certain settlement papers relating to the property. The facts, therefore, must be taken from the admission in the pleadings. The plaint, in so far as it is material, alleges that the property in question constitutes the Zemindari of the plaintiff; that the defendant purchased the property in suit under a registered kobala from certain persons who were miadi sarbarakars under the plaintiff, and on the 5th October 1917 applied for mutation of names in the plaintiff's sherista, praying also for exemption of mutation fees; that the plaintiff's officers in Puri asked the defendant and his officers to pay the mutation fee of Rs. 14,289-3-0 and that the defendant has not yet paid the same and is in possession of the property; that the defendant is liable to pay this sum to the plaintiff according to law and that the plaintiff is entitled to have it. It then alleges that the proportionate rent of the miadi sarbarakari tenure payable by the defendant is Rs. 2,381- 8-6, the mutation fee claimed being six times that sum. It further alleges that the cause of action arose on the 12th July 1916 when the plaintiff came to know of the defendant's purchase.
3. The material part of the written statement alleges that the suit should be dismissed for want of cause of action; that the plaintiff is not entitled to the mutation fees claimed and the defendant is not liable to pay any mutation fee or any portion thereof. It denies that the defendant applied for exemption of mutation fees, but does not deny that he applied for mutation of names or that the plaintiff's officers in Puri asked the defendant and his officers to pay the mutation fee, nor does it deny that the property is in possession of the defendant. Upon these pleadings the following issues were framed:
(1) Is the suit maintainable?
(2) Has the plaintiff any cause of action to bring the suit?
(3) Is plaintiff entitled to the fees claimed?
(4) Can plaintiff recover any amount from the defendant by suit?
(5) Is plaintiff entitled to any and what relief?
4. The learned Sub-Deputy Collector found on the first issue that the suit was maintainable under Section 250 of the Orissa Tenancy Act. On the second and fourth issues he found that the landlord's offer to register the transferee's name, if the latter pays the requisite fee, is sufficient to give rise to a cause of action. On the third, that the fee payable was under Section 16, Clause (b), six times the annual rental, and on the fifth issue that interest at 121/2 per cent might be allowed.
5. Sir Rash Behari Ghosh for the appellant urged, in the first instance, that the Sub-Deputy Collector bad no jurisdiction to try the suit; secondly, that Section 16 of the Orissa Tenancy Act does not apply to the transfer of a tenure which is not transferable without the consent of the landlord or, at all events, not until that consent has been obtained and the transfer thereby completed. On this point he argued that even if the section is applicable to a case in which the tenure is not transferable without the consent of the landlord, the plaintiff cannot bring a suit to recover the registration fee because when the Statute imposes an obligation on any person and prescribes the mode in which that obligation is to be discharged, the discharge of the obligation can only be enforced in the manner prescribed by the Statute. He next contended that the landlord cannot maintain a suit to recover a fee unless there has been an application for registration in his sherista. He further argued that the suit is premature for the reason that until a reasonable time had been given for the application for registration, it could not be said that the transferee of a tenure was liable for the fees leviable under Section 16; and lastly, that the plaintiff is not entitled to claim interest. We may deal first with the contention that Section 16 does not apply to a transfer of a tenure which is not transferable without the consent of the landlord, for if this ground succeeds the suit must be dismissed upon this issue, and it will be unnecessary to discuss the remaining points covered by the argument on behalf of the appellant. Section 16 runs as follows: (1). In cases other than those covered by Section 15, when any tenure or portion of a tenure is transferred by sale, gift or exchange, the transferee or his successor-in interest shall apply to the landlord to whom the rent of the tenure or portion thereof is payable for registration of the transfer, and the landlord shall, in the absence of good and sufficient reason to the contrary, allow the registration of the transfer. The fee payable on such transfer shall be--
(a) In the case of a sale, Rs. 25 per centum of the consideration money, or the fee specified in Clause (b), whichever is greater, and (b) in the case of gift or exchange, a fee six times the annual rental of the tenure or portion thereof, as the case may be, or, if rent be not payable in respect of the tenure or portion, then a fee of Rs. 10.
6. We must accept, on the pleadings before us, the fact that an application for registration has been made by the defendant in respect to the tenure, which is a sarbarakari tenure. A sarbarakari is a sub-proprietor, and as such is by Section 6 (iii) deemed to be a tenure-holder for the purposes of Sections 14 to 20 of the Act. This class of tenure is excluded from the operation of Section 15. On a transfer of a sarbarakari tenure the transferee is, therefore, required by Section 16 to apply to the landlord to whom the rent of the tenure or a portion thereof is payable for registration of the transfer. We have no doubt that that section would be applicable in cases in which a transfer is complete and valid as against the landlord, but a transfer of such a tenure as that under consideration is not complete and valid as against the landlord until the landlord has given his consent to it.
7. It must, therefore, be determined whether such consent was given because if it was not, it follows that in our view there was no transfer of the tenure within Section 16 (1). On a reference to the plaint it will be observed that it is not suggested that such consent has been given. All that is said is that the plaintiff's officers in Puri, upon the application for registration, asked the defendant and his officers to pay the larger mutation fee, which was refused. There is in this no suggestion that they, the officers in Puri, had authority to give consent, much less that they gave such consent.
8. The sequence of events contemplated by Section 16(1) seems to be that first the transferee shall apply to the landlord for registration, and that the ' landlord shall then allow the registration, and that upon his allowing the registration a fee shall become payable. The landlord is within his rights in refusing his consent in the case of a non-transferable tenure. If he should refuse no registration can be enforced by the transferee, and Sub-section (3) of Section 16 will not avail him. It should be inferred from the pleadings that registration was asked for and refused, which is tantamount to refusal of consent. How then can it be said that the landlord who has refused to consent to the transfer can claim that which is only payable on a transfer taking place? In the argument before us the learned Vakil for the appellant has intimated that he is quite willing to pay the fee prescribed in Section 16 (1) (a) viz., 25 per cent. of the purchase price, amounting to Rs. 3,000, contending that the alternative fee prescribed by Sub-clause (b), viz., six times the annual rental does not apply as no rent is payable to the landlord by a sarbarakar but only revenue. This is, no doubt, the real dispute between the parties. The respondent, however, refused to accept this and contends that the matter is concluded by the pleadings. No doubt, the plaint alleges that rent is payable by the defendant, and there is no specific denial of this in the written statement. The appellant, therefore, takes his stand upon the position that there has bean no transfer within the meaning of the section. There are many cogent reasons for holding that until the landlord's consent to registration has been obtained no fee is payable. Dr. Mitter, however, contends that registration being compulsory the landlord may, as soon as the transfer becomes known to him, although incomplete until his consent is obtained, call upon the transferee to apply for registration and deposit a fee. That does not seem to be the meaning of the section, for there may be many oases in which a transferee might have good reasons for not making such an application, as, for instance, he might know that his application would be rejected, and in that case the making of an application would merely put the tenants of the estate upon notice that the transferee's position was a precarious position, and result in their taking advantage of the fourth clause of Section 16 to refuse all payment of rent; or again, it might be that the fee known to be payable would be so large that it would be better to risk the consequences of failure to make an application rather than to pay the requisite fee. It might turn out that the transferee had made a bad bargain and did not wish to complete his title by paying a large registration fee to the landlord, and it would be unreasonable to hold that in such a case he should be obliged to apply for the landlord's consent and thereby complete his title against his will, rendering himself liable to a further outlay for registration fees. It has been held in the case of Mritunjoy Praharaj v. Sree Jugannath Jeu 47 Ind. Cas. 34 : 3 P.L.J. 351 that a landlord is entitled to sue for the fee leviable upon an application for the registration of the transfer of an occupancy holding, even when the transferee has failed to make any application for such registration.
9. It should be noted, however, that the procedure to be followed in cases of the transfer of occupancy rights under Section 31 is somewhat different from that prescribed by Section 16. Under Section 31 the ultimate arbiter upon the application of the transferee is not the landlord as in the case of a non transferable tenure, but the Collector, who shall decide whether the transfer shall be registered or not even in oases where the landlord objects; but, assuming that the decision given in that case in respect to the payment of registration fees under Section 31 applies equally to the landlord's rights under Section 16, it was there held that the landlord's right to levy a fee was contingent upon his consent to the transfer. This appears clear from the following passage from the judgment: "It is the duty of the tenant to apply to the landlord for his consent, and once the landlord has given his consent the tenant is clearly liable to pay the fee prescribed by the Act. In this case the landlord has voluntarily consented to a transfer of the tenancy to the defendant, and once he has done this his right to sue arises, even though the tenant may not have expressly applied for registration."
10. In the case now under consideration it does not appear that the landlord ever consented to the transfer. It seems clear on the sequence of even's contemplated by the section that until the consent has been given no cause of action will arise. We are asked by Dr. Mitter to hold that the filing of the suit is in itself an indication of the landlord's consent; and it is suggested by him that if it is necessary definitely to state in the plaint that the landlord had given his consent to the transfer, he was prepared to make an amendment to his plaint to the effect that the landlord was willing to acknowledge the transfer as valid against himself. But he was not in a position to add to the plaint a statement to the effect that before the filing of the suit any intimation had been given to the defendant of the plaintiff's consent to the transfer. It is well settled that a cause of action must be antecedent to the institution of the suit and cannot arise from the pleadings themselves. It follows that the landlord's consent not having been given before the institution of the suit there was at the time of the institution of the suit no cause of action, and that the plaintiff's suit must be dismissed. It is not necessary, therefore, to consider the, remaining issues. The objection to jurisdiction was not pressed, and we would note only that our attention has been drawn to a Notification in the Bihar and Orissa Gazette, vesting Babu Raghabananda Das by the Local Government with powers to discharge any of the functions of a Deputy Collector under the Act. He is, therefore, a Deputy Collector within the meaning of Section 3 (4) and (6) and is, therefore, a Collector within the meaning of that section and, therefore had jurisdiction to try this suit. We note further that upon the question of interest Dr. Mitter admits that he is unable to support the judgment of the Sub-Deputy Collector.
11. The result of our findings is that the suit must be dismissed as disclosing no cause of action The appeal will be allowed, the judgment and decree of the Sub-Deputy Collector will be set aside, and in lieu thereof judgment will be entered for the defendant with costs here and in the Court below.