Patna High Court
Baidyanath Rai And Ors. vs Sm. Jay Kumari And Ors. on 3 January, 1957
Equivalent citations: AIR1957PAT706, 1957(5)BLJR109, AIR 1957 PATNA 706
JUDGMENT Kanhaiya Singh, J.
1. These Second Appeals, nine in number, by defendants second-party arise out of nine rent suits brought by the plaintiffs, who are respondents first-party, against the tenants, who are defendants first-party and respondents second-party in these appeals, for recovery of arrears of rent and cess for four years from 1350 to 1353 M, S. These nine appeals have been consolidated, and this judgment will govern them all.
2. The facts culminating in this litigation may be shortly stated as follows. The plaintiffs, namely, Shrimati Jay Kumari, Shrimati Nirmal Kumari and Shrimati Bijoy Kumari are sixteen annas proprietresses of the Mahal bearing tauzi No. 8 of the Purnea Collectorate which comprises, several villages. Under this tauzi one Syed Asad Reza was the patnidar, and under him there was an under-tenure-holder, namely, Musammat Koto Dai, the holder of the Andha-sur estate, and the villages in which the rent-claimed holdings are situate are comprised in these under-tenures which have been recorded in the Survey record-of-rights under different khewats in different villages.
The defendants first-party of these rent suits, who are the tenants, are thus raiyats under the under-tenure-holder, Musammat Koto Dai. Between 1921 and 1932 Syed Asad Reza purchased the interests of the under-tenure-holder in different villages in execution of decrees for arrears of rent against the under-tenure-holder. The consequence of this purchase was that the under-tenure interests merged in the patni tenure, and thereafter the tenants, namely, defendants first-party, held their respective holdings immediately under the patnidar, who became their landlord. Syed Asad Reza started realising rent direct from the tenants.
In 1935 the plaintiffs' estate bearing tauzi No. 8 was attached by the Collector for arrears of cesses under the provisions of Section 99 of the Cess Act and Deputy Collector, styled as Cess Deputy Collector filed a certificate, being this estate. In 1937 the District Judge of Purnea appointed Syed Abdul Majid, Pleader, as the common manager of the patni estate of Syed Asad Reza and others under the provisions of Section 95 of the Bihar Tenancy Act. The rent of the patnidar had fallen in arrears, and the Cess Deputy Collector filed a certificate, being Certificate Case No. 284 of 1941-42, for recovery of the arrears. On the 11th January, 1941, a notice under Section 7 of the Public Demands Recovery Act was served on the common manager.
On the 1st March, 1943, the patni interest of Syed Asad Reza was purchased by the Col-
lector in execution of the certificate filed in the aforesaid case, No. 284 of 1941-42. The Cess Deputy Collector obtained delivery of possession on the 1st November, 1943. It appears, however, that the entire arrears of cesses were discharged by set-off against the rent realised by , the Cess Deputy Collector in cash, with the result that the acquisition of the patni interest by the Cess Deputy Collector in execution of the certificate was in excess of the arrears that had to be recovered under Section 99 of the Cess Act, and, therefore, when on the total elimination of the arrears the Government released the estate of the plaintiffs from, attachment on the 27th November, 1943, the Collector surrendered also the patni interest to the proprietresses, namely, the plaintiffs.
The result was that the under-tenures vested in the patni, and later on the patni interest also vested entirely in the superior landlords, namely, the plaintiffs, and the latter thus became the immediate landlords of the tenants, defendants first-party. Apart from this, the plaintiffs also took step for the annulment of the under-tenures held by the defendants second-party, namely, Baidyanath Rai and Deonath Rai (hereinafter referred to as the Rai brothers). On the 23rd February, 1944, they filed an application under Section 167 of the Bihar Tenancy Act for the annulment of the encumbrance, and the notices were duly served on the 2nd August, 1945, the effect of which was that the under-tenures were annulled.
3. The defendants second-party, namely, the Rai brothers, came on the scene for the first time in 1925 when they obtained from Musammat Koto Dai, the under-tenure-holder, a simple mortgage of the different khewats in different villages which constituted her under-tenures. The Rai brothers instituted a suit to enforce their mortgage and obtained a mortgaged decree. They levied execution in 1932 by sale of the mortgaged property in Execution Case No. 208 of 1932 and in due course themselves purchased the entire under-tenure interests of Musammat Koto Dai.
On the 12th March, 1934, they obtained delivery of possession. By virtue of this purchase they became the under-tenure-holders of the different khewats under which the rent-claimed holdings lay. It will be seen that before their purchase the under-tenure interest had already been acquired by the patnidar. By the purchase, therefore, they got practically nothing. The Rai brothers approached the common manager, and, with the constent of the District Judge, obtained from him a release of under-tenures on the 10th June, 1942 on payment of Rs. 1700/- towards the satisfaction of the arrears of rent in respect of the said under-tenures. By virtue of this release they claimed to be the under-tenure-holders entitled in law to recover rent from the tenants.
4. There is thus a sharp conflict between the plaintiffs and the Rai brothers as to their respective rights to the rent from the tenants, the plaintiffs claiming rent on the strength of their being the immediate landlords by virtue of the eventual merger of the under-tenures and patni interests in their estate and also on the strength of the annulment of the encumbrance; namely, the under-tenures, under Section 167 of the Bihar Tenancy Act, and the Rai brothers asserting claim on the ground of both the release by the common manager and the invalidity of the annulment.
In this state of affairs, the plaintiffs instituted the present suits on the 15th April, 1946, for recovery of the rent, as stated above, impleading both the tenants and the Rai brothers, who are, respectively, the defendants first-party and the second-party. Both the sets of defendant's challenged the right of the plaintiffs to recover rent on the ground that there was no valid acquisition of the patni interest by the landlords and that the under-tenure interest had not been annulled legally and alleged that there was no relationship of landlord and tenant. The tenants-defendants further pleaded that they had paid rent for the years in suit to the Rai brothers.
5. The learned Munsif, on most flimsy grounds, left the question of title between the plaintiffs nd the defendants second-party to the khewats in suit open and, by a process of reasoning which is not quite intelligible, held that there was no relationship of landlord and tenant during the years in suit. On these findings, all the suits were dismissed with costs. On appeal, the learned Subordinate Judge in a well-reasoned and exhaustive judgment deprecated the evasion by the learned Munsif to decide the vital question involved in the case, namely, the question of relationship of landlord and tenant between the plaintiffs and the defendants first-party and on a careful consideration of the evidence, oral and documentary, upset the findings of the learned Munsif.
He held that the patnidars had purchased all the under-tenures in question at auction sales held in execution of the rent decree and obtained delivery of possession that the Cess Deputy Collector had purchased the patni interest in execution of the certificate, that the entire arrears of cess were paid off in cash and, therefore, the Collector released the entire estate in favour of the plaintiffs along with the patni tenure, that the plaintiffs annulled the encumbrance of the Rai brothers under Section 167 of the Bihar Tenancy Act and that the release of the under tenures in favour of the Rai brothers by the common manager of the patni was legally invalid.
The conclusion reached by him on these findings was that by virtue of the acquisition of both the under-tenures and the patni tenure, the proprietresses, namely, the plaintiffs, had become the immediate landlords of these tenants, that, therefore, there was a relationship of landlord and tenant between them, and that the plaintiffs were entitled to recover rent from the tenants.
He further held that except in Rent Suit No. 891 of 1943 giving rise to Second Appeal 1712 of 1949, the tenants in all other suits had paid rent to the defendants second-party in respect of the years in suit. He, therefore, set aside the judgments and decrees of the learned Munsif and gave the plaintiffs a decree for rent against the defendants first-party in Rent Suit No. 891 of 1946 and against the defendants second-party in the other suits.
6. The findings of fact arrived at by the learned Subordinate Judge have not been questioned before us. The contentions put forward by Mr. Baidya Nath Jha on behalf of the appellants are of three-fold character. He urged that the release of the under-tenures by the common manager of the patnidars in favour of the Rai brothers operated to revive them which had been lost by the auction sales. This arguments is not well-founded. The release suffers from two serious infirmities, first, it is invalid for want of registration, and secondly, the common manager had not the authority to make the release.
It is well settled that no valid title can be created by relinquishment or release. The re lease presupposes the existence of title in a third person and does not purport to re-convey that title to him. It is tantamount to an admission of existing fact by the ostensible owner.
This is not the case here. The under-tenures had passed absolutely to the patnidars and had merged in the patni tenure. After the auction sales the under-tenure-holder had no right left in the under-tenures. The auction sales completely divested the under-tenure-holder of her interests therein. The patnidarg were thua not the ostensible but real holders of the under-tenures, and the only process known to law by which the under-tenures could have been re-
conveyed to the under-tenure-holder, or for the matter of that, the Rai brothers, was by means of a registered instrument.
It was not a case of admission of the existing facts but, in effect and in essence, the release operated to create a fresh under-tenure in favour of the Rai brothers, and, therefore, in so far as it was done by an unregistered document, it was inoperative to confer upon the Rai brothers any valid title. The second ground of attack is equally tenable. The common manager had not the requisite authority to release the under-tenures in favour of the Rai brothers.
The power-of-attorney has not been produced, and there is nothing in the evidence to show that the common manager had been empowered to make such relinquishment of rights. It is in evidence that before making the release the consent of the District Judge had been obtained. This consent is of little consequence. It is purely a question of authorisation, and in absence of authority the release was beyond the competence of the common manager. Thus, on this ground also the release is legally invalid.
7. Apart from this, release could not affect the khewats that had already been purchased by the patnidars before the mortgage was created by the under-tenure-holder. It will be recalled that the Rai brothers took the mortgage in 1925. The khewats (under-tenuree) involved in the six out of the nine rent suits, namely, Nos. 885, 886, 887, 889, 890 and 893 of 1946, respectively, giving rise to Second Appeals Nos. 1709, 1708, 1707, 1711, 1715 and 1713 of 1949, had been acquired between 1922 and 1923, that is, before the mortgage in favour of the Rai brothers which was made in 1925.
By the mortgage, therefore, the Rai brothers could not acquire any interest in these under-tenures for the simple reason that on the date of the mortgage these under-tenures did not exist. Even assuming that there was a valid release, it could not endow the Rai brothers with a right in the property which did not belong to the mortgagor. Therefore, the acquisition, by the patnidars of the said khewats was unassailable and unaffected by the mortgage and the release. Then, there is a further consideration. This release was effected while the certificate proceeding initiated by the Collector in respect of the patni tenure for recovery of the arrears of patni rent was pending.
The notices under Section 7 of the Public Demands Recovery Act were served on the common manager on the 11th January, 1941. The release by the common manager was made on the 10th June, 1942, that is to say, after the service of the notices under Section 7. The effect of the service of notice of the certificate is contained in Section 8 of the Act. It provides that from and after the service of notice of any certificate under Section 7 upon a certificate-debtor, any private transfer or delivery of any of his immovable property situated in the district in which the certificate is filed, or of any interest in any such property, shall be void against any claim enforceable in execution: of the certificate. The release of the under-tenure by the common manager was, therefore, void under the provisions of Section 8 of the Public Demands Recovery Act.
The contention put forward on behalf of the appellants was that the service of notice under Section 7 was illegal and invalid, because it was not accompanied by a copy of the certificate. No doubt Section 7 provides for service upon the certificate-debtor of a notice in the prescribed form and a copy of the certificate. There is however, a finding of fact in this regard. The final Court of fact has held that both the notice and the copy of the certificate were served upon the common manager and that the service was valid. That being MO, the release was void, and the Rai brothers did not acquire any interest in the under-tenures by the virtue of the said release.
8. Secondly, Mr. Jha contended that the under-tenures constituted protected interests under Section 160 of the Bihar Tenancy Act and were not liable to annulment, and, therefore, the proceedings taken under Section 167 of the Bihar Tenancy Act for annulment were incompetent. The only provision which may possibly apply to the present under-tenures is that contained in Clause (a) of Section 160 of the Act. Other clauses have no application. According to this clause any under-tenure recognised by the settlement proceeding of any current temporary settlement as a tenure at a fixed rent for the period of that settlement is a protected interest. Therefore, the appellants are not protected under Section 160, unless the tenures are held at a fixed rent.
This contention arises only in connection with the tenures involved in Rent Suits Nos. 888, 891 and 892 of" 1946 giving rise, respectively, to Second Appeals Nos. 1710, 1712 and 1714 of 1949, because the tenures in these suits were purchased by the patnidars in 1932, that is, after the mortgage in favour of the Rai brothers. As stated earlier, the khewats to which the other rent suits appertained, had already been acquired by the patnidars before the mortgage, and, therefore, the question of annulment of the tenures as against the Rai brothers did not appropriately arise. Rent Suit No. 888 relates to khewat No. 7 in village Andhasur, Rent Suit No. 891 to khewat No. 6 in village Dugharai and Rent Suit No. 892 to khewats Nos. 20 and 24 in village Pachara. Khewat No. 7 in village Andhasur and khewat No. 6 in village Dugharia are belagan, that is, rent-free khewats.
Of the two khewats involved in Rent Suit No. 892, one, namely, khewat No. 20, is belagan. Khewat No. 24 is no doubt rent-paying khewat. The rent-free khewats do not constitute protected interest under Section 160 of the Bihar Tenancy Act, and, therefore, their annulment under Section 167 is legal and operative. Any way, the position of the plaintiffs with respect to khewat No. 24 is not at all affected, because, as held above, the release was inoperative. The question of annulment arises only on the assumption of the validity of the release.
9. Lastly, Mr. Jha contended that the patni tenure had been acquired by the Cess Deputy Collector, and the surrender of this tenure in favour of the plaintiffs after their estate was released from attachment under Section 99 of the Cess Act did not confer upon them a valid title, as the surrender was not effected by a registered instrument. This involves the consideration of the legal position of the Collector under this section.
The power conferred upon the Collector by this section, is limited only to the realisation of the rent due from any occupier, tenure-holder, under-tenant or raiyati on the estate or tenure in respect of which the notification has been issued, and this power continues only so long as the arrears of cess remained unliquidated. The moment the amount due to the Collector together with all costs is satisfied by the realisation of rent, the notification will be immediately revoked. The holder of the estate or tenure is thus divested of the power to recover rent from the tenants. In all other respect their rights remain intact, and they remain in possession of the estate. There is no interference at all with the cultivation of their bakasht lands or with the power to develop their estate.
Thus, as a result of the attachment the Collector does not become the assignee of any interest in the estate or tenure. He does not represent the proprietary interest or in fact any other kind of interest. All that he can do is to exercise the statutory powers of realising rent from any person who holds land in any capacity within the estate or tenure no matter to whom the rent might be payable. This view finds ample support from a decision of the Division Bench of the Calcutta High Court in Haji Hafizuddin Ahmed v. Natabar Chandra, AIR 1944 Cal. 445 (A). If in fact there is no assignment of any interest in the estate or tenure in favour of the Collector, the only position that emerges is the position of a trustee.
To all intents and purposes, the Collector is a trustee of the owner of the estate or tenure so far as the collection of rent is concerned. The rent which he realises by virtue of the power under Section 99 is the rent belonging to the holder of the estate or tenure. In other words, the title in the rent realised by the Collector always remains with the proprietor or the tenure-holder, as the case may be. The only power possessed by the Collector is to set off that rent against the arrears of cess. Subject to this limited power, he has not the freedom under the law to dispose of the rent so realised by him in whatever way he likes.
He has no power of disposal over the rent realised. If the rent so realised exceeds, the amount of cess clue by the proprietor or the tenure-holder, the surplus amount always belongs to the proprietor or tenure-holder and is refundable to him. The Collector cannot retain with him the surplus amount. This is quite obvious. There is no reason why a different principle should govern the purchase of holdings or tenures by the Collector in execution of certificate for arrears of cess. It is quite plain that he holds the acquired tenure or holding or, for the matter of that, any cash rent realised by him, for or on behalf of the proprietor or tenure-holder for the limited purpose of realising the arrear cess and if, like cash collections, the holding or tenure so purchased becomes surplus in the hand of the Collector by reason of the entire arrears of cess having been recovered by cash collections, that surplus property does not become, in law the property of the Collector but remains always the property of the proprietor or the tenure-holder, as the case may be, and is returnable to him after the arrears of cess have been paid off.
The argument that by the purchase the Collector becomes ipso facto the owner of the, tenure or holding has no support cither in law or in principle. So long as it is not set off against the arrears of cess, the Collector holds) the tenure or holding so acquired for and on behalf of the tenure-holder or the proprietor. In this view of the matter, the surrender of the patni interest to the plaintiffs did not require any registered instrument, because the same always belonged to the proprietor or the tenure-holder, and the Collector was holding the same on his behalf as a trustee. In my opinion, this argument is also unsubstantial and must fail.
10. With respect to Kent Suit No. 890 of 1946 a different consideration arises. This suit relates to khata No. 8 under khewat No. 7 in village Judhail. This knewat does not find place in the sale certificate of the Rai brothers. Obviously, they have acquired no title to it by the auction purchase. Consequently, the release by the common manager was o£ no avail, because the Rai brothers never had any title to this khewat.
11. It follows that there is no merit in these appeals. They are accordingly dismissed with costs.
Rai, J.
I agree.