Patna High Court
Jugeshar Misra And Ors. vs Nath Koeri on 16 January, 1922
Equivalent citations: 65IND. CAS.335, AIR 1922 PATNA 19, AIR 1922 PATNA 114
JUDGMENT Dawson Miller, C.J.
1. These two appeals were referred to the Full Bench for final determination and were ordered to be heard together.
2. The questions for determination are similar, though not precisely the same, in each case.
3. Miscellaneous Appeal No. 97of 1921 arises out of an order of the District Judge of Muzaffarpur affirming an order of the Munsif passed in execution proceedings and allowing the judgment-debtor's objection to the sale of a portion of his non-transferable occupancy holding in execution of a money decree passed in favour of the appellant who is not his landlord.
4. The Munsif and the District Judge who considered that the case was governed by the decision of this Court in MacPherson v. Debi Bhushan Lal 42 Ind. Cas. 36 : 2 P.L.J. 580 allowed the objection and dismissed the execution proceeding.
5. On appeal a Division Bench of this Court referred the case to the Full Bench for determination and ordered it to be heard together with Miscellaneous Appeal No. 3 of 1921 which had previously been referred.
6. The point which arises for determination in Miscellaneous Appeal No. 97 of 1921 is, whether the decree holder, not being the landlord of the holding, can, against the will of the judgment-debtor and without the express consent of the landlord, of which there is no evidence, cause a portion of the judgment-debtor's occupancy holding to be sold in execution of a money decree, there being no local custom of transferability.
7. The case of MacPherson v. Debi Bhushan Lal 42 Ind. Cas. 36 : 2 P.L.J. 580 does not directly determine the question arising in this appeal. The question there was between landlord and tenant, the landlord seeking to execute the money-decree against his tenant's holding and not against a portion only. The precise point, however, arose and was decided against the decree-holder in the earlier case of Sadari Kunwari v. Palknath Rai 33 Ind. Cas 937 : 1 P.L.J. 257 : 3 P.L.W. 101. So far as I am aware, it has never been directly decided that an occupancy holder cannot transfer an interest in a part of his holding to another even without his landlord's consent, provided he does not abandon or relinquish the whole holding. Such a transaction does not create a new tenancy between the purchaser and the landlord without recognition but it is binding between the tenant and the purchaser and the latter has a subsisting right notwithstanding the absence of recognition by the landlord. It may be a precarious right dependent largely on the good will of the tenant but the transaction affords no ground for ejectment under Section 25 of the Bengal Tenancy Act. Moreover, the case of Dayamoyi v. Anandi Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 20 C.L.J. 52 upon which the respondent relies, lays down in clear terms that the transfer of the whole or part of the holding is operative against the tenant where it is made voluntarily and that where the transfer is of a part only of the holding the landlord, though he has not consented, is not ordinarily entitled to recover possession of the holding unless there has been (a) an abandonment within the meaning of Section 87 of the Bengal Tenancy Act, or (6) a relinquishment of the holding, or (c) a repudiation of the tenancy.
8. The question, therefore, arises whether the tenant can be made to do involuntarily at the instance of his creditor that which he can do voluntarily. In Agaran Bibi v. Panaulla 6 Ind. Cas. 452 : 37 C. 687 at p. 693 : 14 C.W.N. 779, 12 C.L.J. 169, which was also relied on by the respondent, the power of voluntary transfer was said to be the measure of the power of involuntary alienation, Exactly the same view had been expressed some 30 years earlier is Dwarka Nath Misser v. Hurrish Chunder 4 C. 925 : 4 C.L.R. 130 : 2 Ind. Dec. (N.S.) 585 where it was laid down that there was no ground, for distinguishing a voluntary sale from a sale in execution, In Agarjan Bibi's case 6 Ind. Cas. 452 : 37 C. 687 at p. 693 : 14 C.W.N. 779, 12 C.L.J. 169 it was, however, held that the purchaser of a portion of a non-transferable raiyati jote could not obtain joint possession without the landlord's consent and that the tenants other than the vendor in possession of a portion of the jote could question the validity of the transfer. The interests of the co-sharers of the jote were involved in that case which should not be lost sight of. Assuming, however, that Dayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 20 C.L.J. 52 is good law in so far as it denies the landlord's right to question a voluntary transfer of a portion of the holding except under special circumstances not arising here it is difficult to see why that which the tenant can alienate at his will cannot be the subject of a sale in execution of a decree against him. But Dayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 20 C.L.J. 52 further laid down with regard to involuntary transfers of whole or a part of the holding that they are valid an against the raiyat only where the raiyat with knowledge fails or omits to have the sale set aside. IN so deciding the Full Bench was merely applying to sales of a whole or a part of the holding the principle embodied in Bhiram Ali v. Gopi Kanth Shaha 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 905 which was to the effect that an occupancy holding was not saleable at the instance of the occupancy raiyat or of any creditor of his other than his landlord seeking to obtain satisfaction of his decree for arrears of rent. Bhiram Ali's case 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 905 was decided in 1897 and for the first time laid down the proposition there broadly stated. It excluded the case of a landlord seeking to sell in execution of a money-decree but up to that time there had been no decision to the effect that the holding could not be transferred in execution where the landlord was a consenting party. Indeed, from 1834, when the Saddar Diwany Adaulat in the case of Neelkanth Roy v. Casheenauth Ghose (1834) Sudder Dewany 268 issued" Construction No. 890, up to 1897 the power of transfer with the landlord's consent appears not to have been questioned. Bhiram Ali's case 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 905 was generally, though not consistently, followed by the Calcutta High Court until 1920 when the whole Question of the transfer ability of occupancy holdings was elaborately discussed and the authorities from the earliest times, as well as the Statutes relating to the subject, were considered by the Special Bench of the Calcutta High Court in Chanira Benode Kundu v. Ala Bux Dewan 58 Ind. Cas. 863 : 48 C. 184 : 31 C.L.J. 530 : 24 C.W.N. 518 (S.B.), The view presented on behalf of the tenant in that case was, that the right of occupancy was a personal right or privilege and not an interest in land capable of transfer, and that the only incidents attaching to the right ware those conferred by the Rent Acts of 1859 and 1869 and the Bengal Tenancy Act of 1835 as subsequently amended. It was sought to explain the cases where a voluntary transfer of the whole or a part of the holding had been upheld as against the tenant, of which many instances might be cited, as founded on the doctrine of estoppel or the rule that the transferor cannot derogate from the grant, and it was argued that involuntary transfers might be explained on the ground of waiver. It is difficult, however, to see how these doctrines could apply so as to validate a transfer in a case where, ex hypothesi, there was nothing that could be transferred. The Special Bench, consisting of the Acting Chief Justice and six other Judges, unanimously decided that the case of Bhiram Ali v. Gopi Kanth Shaha 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 905 was wrongly decided and overruled that and subsequent decisions based upon it. It further decided that the proposition laid down in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 20 C.L.J. 52, which related to the transfer of occupancy holdings apart from local usage, required modification, and that the first proposition there laid down should be stated thus: "The transfer of the whole or a part is operative as against the raiyat whether it is made voluntarily or involuntarily." This decision, by establishing the validity as against the raiyat of all cases of transfer of a whale or a part of the holding, recognised the test formulated by Jackson, J., in Dwarka Nath Misser v. Hurrish Chunder 4 C. 925 : 4 C.L.R. 130 : 2 Ind. Dec. (N.S.) 585 in 1879, that the measure of the liability to involuntary alienation is the power of voluntary alienation, and removed all difficulty which might arise in the application of Section (6) of the Civil Procedure Code which renders saleable in execution all property of the judgment debtor over which he has a disposing power. It farther decided that the right of an occupancy holder is an interest in land and not merely a personal right.
9. We have been asked by the learned Vakil for the respondent to dissent from the views expressed by the Special Bench is Chandra Benode Kundu's case 58 Ind. Cas. 863 : 48 C. 184 : 31 C.L.J. 530 : 24 C.W.N. 518 (S.B.), and the arguments addressed to us have been along the name lines as those there advanced. In my opinion, that case correctly expresses the law and the contrary view expressed by this Court in Sadari Kunwari v. Palknath Rai 33 Ind. Cas 937 : 1 P.L.J. 257 : 3 P.L.W. 101, which followed that part of Dayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 20 C.L.J. 52 which was dissented from by the Special Bench, should no longer be followed. I would answer the point of law above formulated in the affirmative. The appeal is accordingly decreed and the application for execution allowed with costs in all Courts including the costs of this reference.
Miscellaneous Appeal No. 3 OF 1921.
10. This appeal raises nearly the same question but the facts are somewhat different. In this case the landlord is the decree holder and his tenant is the judgment debtor. The decree is a money-decree. The landlord sought to execute his decree by attachment and sale of his tenant's occupancy holding It mast be conceded in such a case that the landlord consents to the transfer. The Munsif and the District Judge dismissed the application for execution being bound by the decision of this Court in MacPherson v. Debi Bhushan Lal 42 Ind. Cas. 36 : 2 P.L.J. 580. In view of the recent decision of the Special Bench of the Calcutta High Court in Chandra Benode Kundu v. Ala Bux Dewan 58 Ind. Cas. 863 : 48 C. 184 : 31 C.L.J. 530 : 24 C.W.N. 518 (S.B.) the case was referred on appeal to this Court for decision by a Full Bench. The question for determination is, whether a landlord who has sued his tenant and obtained against him a money-decree can in execution thereof sell the non-transferable occupancy holding of his tenant without the latter's consent.
11. This question is precisely that which arose for determination in Chandra Benode Kundu's case 8) and with which I have already expressed my concurrence in the above judgment. I would, therefore, answer the question in the affirmative and hold that MacPherson v. Debi Bhushan Lal 42 Ind. Cas. 36 : 2 P.L.J. 580 was wrongly decided. The appeal should be decreed and the application for execution allowed with costs in all the lower Courts including the costs of the appeal to the High Court but not of this reference in which the parties did not appear.
Das, J.
12. I agree.
Adami, J.
13. I agree.