Patna High Court
Hakgouri Prasad vs Raghunath Singh And Ors. on 11 December, 1936
Equivalent citations: 169IND. CAS.350, AIR 1937 PATNA 314
JUDGMENT Fazl Ali, J.
1. This appeal arises out of a suit instituted by the plaintiff who is the transferee of a portion of a holding situated in village Matwalwa in the District of Monghyr, to recover possession of the lands sold to him from defendant No. 1 who is admittedly the landlord of the village. The lands in question were sold to the plaintiff by two sale deeds dated February 29, 1928 End September 19, 1929. The plaintiff's allegation was that he got possession of the lands upon the execution of the sale deeds, but he was dispossessed by the landlord some time about May 30, 1930. The suit was contested by defendant No. 1 on the allegation that the holding was not transferable, that as a matter of fact the original' tenants had made a gift of the entire holding in favour of his sons and the latter had surrendered it to the landlord and that the suit was barred by limitation. It was further pointed out on behalf of defendant No. 1 that at the date of the institution of the suit the entire holding had passed out of the possession of the original tenant, a portion of the holding having been sold to one Lakhi Singh on October 15, 1928.
2. The principal point which appears to have been in dispute in the Courts below' was whether the holding was by custom transferable or not and on this point the Courts below came to two different conclusions. The first Court held that the holding was not transferable and accordingly dismissed the plaintiff's suit. The lower Appellate-Court, on the otter hand, has held that the holding was transferable and passed a decree in favour of the plaintiff.1 The first point which has been raised on; behalf of the appellant (defendant No. 1) in this second appeal is that the finding of the lower Appellate Court that the holding is transferable is not conclusive because the Court has, in coming to this conclusion, taken into consideration evidence which was not relevant to the point in issue. It appears that the learned Subordinate Judge in coming to the conclusion that the holding was transferable relied upon the village1 note which contained a definite entry to that effect and upon certain sale deeds coupled with the evidence of the fact that the sales had been recognized by the landlord without any salami having been paid to him. The point which has now been raised is that these sale deeds relate only to portions of' holdings and, therefore, have no bearing on the question in issue. It has, however, been pointed out by the learned Advocate appearing for the respondents that there is nothing in the judgments of either of the Courts below to show that these sale deeds related only to portions of holdings and in fact no such contention was raised even in the memorandum of appeal filed in this Court. It is, therefore, clear that the finding of the learned Subordinate Judge cannot be challenged in second appeal.
3. The next contention put forward en behalf of the appellant is that this case is governed by Section 26 (O), Bihar Tenancy (Amendment) Act of 1934 and that the title of the plaintiff is not perfected until he pays to the landlord, or deposits with the Collector, a certain percentage of the consideration paid for the transfer, as specified in that section. The learned Advocate for the appellant tried to support this contention by relying on certain observations made by their Lordships of the Judicial Committee in K.G. Mukherjee v. Ramratan Kuer 17 P.L.T. 25 : 160 Ind. Cas. 105 : A.I.R. 1936 PO 49: 631 A. 47 : 15 Pat. 268 : 1936 C.W.N. 69 : 1936 A.L.R. 101 : 8 R.P.C. 142 : 40 C.W.N. 263 : (1936) M.W.N. 35 : 1 B.R. 225 : 70 M.L.J. 105 : 62 C.L.J. 419 : 43 W.L. 336 (P.C.). That was a case in which a question arose whether the transfer of an occupancy holding made before 1923, would be affected by the provisions of Section 26 (N) of the Act. Section 26 (N), provides that every person claiming en interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion thereof by sale, exchange, gift or will made before the first day of January 1923. Accordingly it was held in that case that as the transfer in question had been made before 1923 the landlord must be deemed under this provision to have given his consent to it. Their Lordships also incidentally referred to Section 26 (O) and observed as follows:
Again if Section 26 (O) is looked at, it will be seen that in the case of a transfer made after January 1, 1923, but before June 10, 1935, the provision is that the transferee may pay or deposit the landlord's transfer fee and thus perfect his title. There is no suggestion that a transferee shall be incompetent to make the payment or that the Collector shall refuse to receive the money in any case in which the transfer is impugned in a pending suit.
4. The inference which is sought to be drawn from this observation is that Section 26 (O) applies to every pending suit and whether the holding transferred is transferable by custom or not, the title of the transferee is not perfected until the transfer fee prescribed in this section is paid. It appears to me, however, that the argument involves a confusion of thought. Section 26 (A) clearly states that the provisions of Section 26 (B) to Section 26 (M) shall apply to all transfers of occupancy holdings or portions thereof made after the date of the Bihar Tenancy (Amendment) Act of 1934. For the present purpose it will be sufficient to refer to Section 26 (B) and Section 26 (F). Section 26 (B) provides that an occupancy raiyat shall have power to transfer his occupancy holding or any portion thereof, but except in certain eases no such transfer shall be valid against the landlord unless he has given or is deemed under Section 26 (F) to have given his consent thereto. Section 26 (F) provides that if the landlord's transfer fee is paid in accordance with the provisions made in the Act, the landlord shall be deemed to have given his consent to the transfer. Now, as I have already stated, both these provisions apply to transfers made after the passing of the Bihar Tenancy (Amendment) Act. These sections have obviously no application where the holdings are transferable by custom and have been transferred before the commencement of the Act. In such cases the title of the transferee will be deemed to be perfect even though the landlord may not have consented to the transfer. If the title of the transferee is already perfect, it is obvious that it will not be necessary to have recourse to the provisions made about the payment of transfer fee in Section 26 (O). These considerations make it clear that Section 26 (O) is intended to apply only to those cases where the title of the transferee has not been perfected or, in other words, to those transfers only which relate to non-transferable holdings.
5. The only other point which was raised in this appeal was that the suit was barred by limitation because it was not brought within two years of the date of the first sale deed executed in favour of the plaintiff. The answer to this contention is, however, provided in the written statement of the landlord who has stated that he entered into the possession of the disputed land en June 21, 1929. The suit was brought within two years of this date and is clearly within time. In these circumstances I would dismiss the appeal with costs.
Madan, J.
6. I agree.