Ramaswami, J.:— The question to be examined in this appeal is whether the plaintiff obtained a valid title to the property in dispute as soon as the husband of defendant 2nd party executed a registered kebala in his favour, though the fee prescribed to the landlord was not paid to the registering officer at the time.
The leading facts of the case are as follows. The plaintiff brought the suit alleging that on 19th December 1938 the husband of defendant 2nd party executed a registered kebala with respect to 9 kathas and 13 dhurs of plot no. 244, khata no. 115, village Madhepura. The plaintiff asserted that he paid landlord's fee but defendants first party did not accept rent since salami was not paid by the plaintiff. In 1941 defendants first party instituted a rent suit against the original tenant and having obtained an ex parte decree purchased the holding in execution case and obtained delivery of possession in due course. The plaintiff; claimed that the decree in the rent suit had only the effect of a money decree since the holding was not properly represented. The plaintiff hence brought the suit for a declaration of title and recovery of possession of the land. Defendants first party contested the suit on the ground that the landlord's fee was not paid at the time when the kebala was registered and in consequence the plaintiff acquired no title and was not a necessary party in the rent suit. Defendants first party maintained that the decree obtained in the rent suit had the effect of a rent decree and the plaintiff was not entitled to any relief. After examining the evidence the learned Munsif held that the landlord's fee had not been paid, but the plaintiff was nevertheless entitled to a decree. His decision has been reversed by the. Additional District Judge of Monghyr in appeal.
In support of this appeal Mr. K.K Sinha addressed the argument that the lower appellate court was erroneous to hold that the decree obtained in the rent suit had the effect of a rent decree and that the defendants first party obtained a valid title to the land by sale in execution case. Learned counsel did not properly impeach the finding of the lower appellate court that the landlord's fee was not paid since this finding was upon a question of fact. But the learned counsel maintained that upon proper construction of section 26A, sub-section (2) read with sections 11 and 12 of the Bihar Tenancy Act the lower appellate court ought to have held that though the landlord's fee was not paid the plaintiff acquired a valid title to the land as soon as the sale deed was registered. In my opinion the argument addressed by the learned counsel is well founded and must succeed. The new section 26A of the Bihar Tenancy Act was substituted in place of the former section 26A by Bihar Act II of 1938 which came in force on 10th December 1938. The amended section 26A, clause (2) is to the following effect:
“Every transfer of an occupancy holding or a portion thereof, together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion, together with the right of occupancy therein, shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord's registration fee.”
The material sections with respect to transfer of a permanent tenure are sections 11 and 12 of the Bihar Tenancy Act. Section 11 enacts:
“Every permanent tenure shall, subject to the provisions of this Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property.”
Section 12(1) states:
“A transfer of a permanent tenure by sale, gift, exchange or mortgage (other than a transfer by a sale in execution of a decree or by summary sale under any law relating to patni or other tenures) can be made by a registered instrument.”
Section 12(2) is to the following effect:
“A registering officer shall not register any instrument purporting or operating to transfer by sale, gift, exchange or usufructuary mortgage a permanent tenure unless there is paid to him, in addition to any fee payable under the law for the time being in force for the registration of document, a process-fee of the prescribed amount and a fee (hereinafter called the landlord's registration fee) together with the costs necessary for the transmission of the landlord's registration fee to the landlord.”
On behalf of the respondents Mr. J.M Ghosh argued that the payment of the landlord's fee was a condition precedent to the registration of the kebala and since it has been found in fact that the landlord's fee has not been paid it ought to be held that the plaintiff acquired no title upon registration of the kebala. In my opinion this argument is untenable and cannot succeed. For it is an established rule that if a statute imposes a public duty and requires that it should be performed in a certain manner or within certain time or on certain conditions such cases will be regarded as intended to be directory otherwise injustice or inconvenience will result to persons who have no control over those exercising their duty without promoting the essential aim of the legislature. It has been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time [Smith v. Jones(1)]. In another case Bellamy v. Saull(2) the Queen's Bench had to construe section 34 of the Revenue Act, 1861, which enacted that no copy of a bill of sale should be filed in any court unless the original was produced to the officer duly stamped and it was held that the section did not invalidate the registration if the bill was not duly stamped when so produced since the object of the enactment was to protect the revenue, and this was thought sufficiently attained if the deed was afterwards duly stamped, without going to the extreme of holding the registration void.
In the present case I think that the condition as regards payment of the landlord's fee enacted in section 12(2) of the Bihar. Tenancy Act is merely directory and not absolute and in consequence the failure to deposit landlord's fee at the time of registration of the kebala did not affect the title of the plaintiff. It follows that the plaintiff obtained valid title to the land as soon registration was effected irrespective of the question whether the landlord's fee was paid or not.
This opinion is supported by Rani Prabhabati v. Lalji Mahto* in which a Division Bench of this court held that under section 13, Bihar Tenancy Act, when a permanent tenure was sold in execution of a mortgage I decree, the title of the auction-purchaser became complete on the sale being confirmed, even though the landlord's fee may not have been deposited and that the landlord, therefore, could not proceed to sell the tenure in execution of a decree for rent obtained by him against the original tenure-holder in a suit instituted after the confirmation of the sale. The same principle was enunciated in Chandrasekhar v. Jagarnath in which a transferee of a portion of a permanent tenure was not impleaded in the rent suit subsequently brought by the landlord and it was held that the decree for rent obtained by the landlord against the recorded tenant will not affect the transferee and the plea that the landlord had no notice of the transfer was of no avail. Mr. J.M Ghosh who appeared for the respondents pointed out that this case ought to be distinguished on the ground that under section 1 of the Bengal Act 1 of 1903 no transfer of a tenure made under section 12 or section 13 “shall he deemed to be invalid merely on the ground that the landlord's fee prescribed by the said sections 12 and 13 has not been paid.” But it is important to notice that the transferee had not paid the fee for service of notice on the landlord and on this point Fazl Ali, C.J states at page 151 of the report:
“It is true that these cases were cases relating to section 12 of the Bengal Tenancy Act, but it seems to me that on principle no distinction can be drawn between cases which come under section 12 and those which come under section 13. Section 11 of the Bihar Tenancy Act which has already been quoted, provides that a permanent tenure is capable of being transferred in the same manner as other immovable property. There is nothing in the Act to suggest that the title of the transferee is not complete until the landlord receives notice of the transfer. It is true that provisions are made for the payment of the landlord's registration fee and also for the service of notice upon the landlord, but it is nowhere suggested that non-compliance with the provisions will affect the title of the transferee. Where the sale takes place under section 12, notice is to be issued by the officer who registers the instrument of transfer, and where the sale takes place under section 13, the notice is to be issued by the Court confirming the sale. The mere fact that the Registrar or the Court does not carry out the directions contained in sections 12 and 13 cannot affect the title of the transferee, and if the failure of the payment of the landlord's fee by the transferee cannot affect his title as provided by section 1 of Act I of the Bengal Act (No. I of 1903), I do not see why his failure to deposit the fee for serving notice on the landlord should have any other effect.”
It is of importance to observe that in I.L.R 24 Patna 148 the plaintiff had failed to pay not merely the landlord's fee but also the fee prescribed for the service of notice and it was held by the Bench that neither failure to deposit the landlord's fee nor failure to deposit the fee to serve notice can effect the title of the transferee. In other words the decision was that the provision as regards payment of process fee and costs of transmission was merely directory and not imperative and cannot affect the title of the vendee under the registered kebala. I see no reason in principle why the provision with respect to the payment of the landlord's fee in section 12(2) should be construed in a different manner even assuming that section 1 of Bengal Act I of 1903 is non-existent.
Upon these grounds I would set aside the decree of the lower appellate court and order that the plaintiff should be granted a decree for declaration of title and recovery of possession of the land in dispute. There will be no decree as regards mesne profits in the circumstances proved in the case. The appeal is accordingly allowed with costs throughout.
Rai, J.:— I agree.
Appeal allowed.
K.D