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Rajani Kanta Ghose v. Sheikh Rahaman Gazi
Factual and Procedural Background
This is an appeal by the plaintiffs in a suit for recovery of arrears of rent. The defendants denied the existence of a landlord-tenant relationship during the years in claim and asserted that the plaintiffs' title had been extinguished by a sale held in execution of a decree obtained in a suit instituted under Section 148-A of the Bengal Tenancy Act.
The Court of first instance accepted the defendants' contention and dismissed the plaintiffs' suit. The District Judge affirmed that decree on appeal. On second appeal the plaintiffs argued that their title was res judicata by reason of a decree dated 29 April 1915 in a previous suit; both lower courts rejected that contention. The appellate court concluded the earlier suit did not directly and substantially decide the question now in controversy.
The primary factual focus is a sale held on 11 September 1913 in execution of a decree for arrears of rent in a suit under Section 148-A. The plaintiffs' claimed interest had originally been held under two landlords (Dighapatia and Tagore). Various executions and purchases by third parties (including Amarendra Nath Ghose, Asutosh Ghose, Arunoday Ghose, Behary Lal Roy and finally Kishori Mohan Srimany) are described in the opinion. Notably, a decree obtained by Dighapatia under Section 148-A was executed without notice having been served on Tagore as required by Section 158-B(2), and the subsequent sale resulted in Kishori Mohan Srimany becoming purchaser on 11 September 1913.
Legal Issues Presented
- Whether the question of the plaintiffs' title is res judicata by reason of an earlier decree (29 April 1915) between the parties.
- What is the legal effect of the sale held on 11 September 1913 in execution of a decree obtained in a suit under Section 148-A of the Bengal Tenancy Act?
- Specifically, what is the effect of the failure to serve the notice required by Sub-section (2) of Section 158-B of the Bengal Tenancy Act: does that omission nullify the sale (or render it invalid as a sale under the Bengal Tenancy Act), or does it restrict the sale to the interest of the judgment-debtor only (i.e., make it equivalent to a sale under a money-decree)?
- Whether, in circumstances where a co-sharer landlord has knowledge of and acquiesces in the sale (including withdrawing purchase monies and granting mutation), the co-sharer can be held to have waived the protection intended by Section 158-B(2) and thus cannot later challenge the sale as void.
Arguments of the Parties
Appellants' (Plaintiffs') Arguments
- The plaintiffs contended that their question of title was res judicata by reason of a prior decree dated 29 April 1915; they relied on that prior decree to assert finality of title.
- The plaintiffs argued that the decree obtained by Dighapatia in the suit under Section 148-A could not operate as a decree for the entire rent under the Bengal Tenancy Act because the notice required by Section 158-B was not served on Tagore; therefore, the sale should not have the operation of a sale under the Bengal Tenancy Act and could not extinguish the plaintiffs' title.
- In support of their view that the sale was invalid or ineffective to extinguish co-sharers' rights, reliance was placed on earlier cases including Nanda Lal v. Kula Chand, Sarif v. Tilattama and Ahamad Biswas v. Benoy Bhusan Gupta which were cited as authority that failure to comply with Section 158-B(2) renders the sale invalid.
Respondents' (Defendants') Arguments
- The defendants denied the existence of a landlord-tenant relationship during the years in claim and urged that the plaintiffs' title had been extinguished by the sale held in execution of the decree obtained under Section 148-A.
- The defendants (and the lower courts) maintained that the sale in execution of the Section 148-A decree operated to transfer the tenure to the purchaser and extinguish the plaintiffs' interest, notwithstanding the procedural omission to serve Section 158-B(2) notice, particularly in light of the co-sharer's conduct (acquiescence and withdrawal of money).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nanda Lal v. Kula Chand [1910] 15 C.W.N. 820 | Authority relied upon by appellants to support the contention that omission of Section 158-B(2) notice invalidates the sale. | The Court noted it was relied upon by appellants but did not adopt it as controlling here because of differing factual circumstances (notably co-sharer acquiescence). |
| Sarif v. Tilattama [1917] 43 I.C. 3 | Held that the provisions of Sub-section 2 of Section 158-B are mandatory and that failure to serve the notice rendered the sale invalid. | The Court acknowledged the precedent but distinguished it on the facts: in Sarif the sale was challenged by the co-sharer; in the present case the co-sharer adopted the sale and withdrew his share of the purchase money, indicating acquiescence. |
| Ahamad Biswas v. Benoy Bhusan Gupta [1919] 23 C.W.N. 931 | Also held that Sub-section 2 of Section 158-B is mandatory and failure to serve the notice renders the sale invalid. | The Court considered this authority but treated it as distinguishable because the co-sharer in the present case approved and adopted the sale. |
| Raghunath Das v. Sundar Das Khetri, A.I.R. 1914 P.C. 129 | Decision of the Judicial Committee on the true construction of Section 248 Civil Procedure Code (now Order 21, Rule 22 of the Code of 1908) used in prior reasoning about sales and notice requirements. | The Court referenced this decision as one of the authorities relied upon in the cases that found a mandatory requirement; it was part of the prior line of reasoning in cases like Sarif and Ahamad Biswas. |
| Ashutosh Sikdar v. Beharilal Kiritania [1907] 35 Cal. 61 | Held that a sale held contrary to a legislative enactment is not necessarily a sale absolutely without jurisdiction; violations of statutory provisions may produce either irregularity or nullity depending on the nature, scope and object of the provision. | The Court relied on this principle to adopt a contextual approach: whether the omission of notice vitiates the sale depends on whether the provision is for public policy (non-waivable) or for the benefit of an individual (waivable). This principle guided the Court's conclusion that Section 158-B(2) could be waived by the co-sharer. |
| Tassaduk Rasul Khan v. Ahmad Husain [1893] 21 Cal. 66 | Example where a sale held in violation of provisions of Section 290 Civil Procedure Code did not necessarily nullify proceedings. | Used as an illustration (with other cases) that contravention of a statutory provision may not automatically render proceedings null; the Court relied on such authorities to support a nuanced approach. |
| Gobind Lal Roy v. Ram Janam Misser [1893] 21 Cal. 70 | Instance where a sale for arrears of revenue was held in contravention of sections 5 and 17 of Act XI of 1859 but did not necessarily produce a nullity. | Included among authorities demonstrating circumstances where statutory violation did not entirely vitiate a sale; the Court treated such cases as part of the comparative jurisprudence. |
| Malkarjun v. Narhari [1900] 25 Bom. 337 | Example where a sale held contrary to Section 248 of the Code did not necessarily nullify the proceedings. | Referenced as supporting the proposition that not every breach of a statutory provision produces a nullity; the Court used the aggregate of these cases to adopt the test-based approach. |
| Nusserwanjee Festonjee v. Meer Mynoodeen [1855] 6 M.I.A. 134 | An instance where arbitration proceedings conducted contrary to statute (Bombay Regulation VII of 1827) were held to vitiate the proceedings. | Used as a contrasting authority to show there are cases where statutory non-compliance does vitiate proceedings; the Court cited it to show the spectrum between irregularity and nullity. |
| Subrahwania Ayyar v. King-Emperor [1901] 25 Mad. 61 | Case where trial held in contravention of joinder rules in Section 234 CrPC produced proceedings that were vitiated. | Again cited as an example where non-compliance produces nullity; the Court used such precedents to demonstrate that the effect of statutory breach depends on the nature and object of the provision. |
| Holmes v. Russell, 9 Dow. 28 (quoted) | Articulated a practical test distinguishing irregularity from nullity: whether the party can waive the objection; if waivable -> irregularity, if not -> nullity. | The Court quoted this test as a guiding principle in assessing whether Section 158-B(2) could be waived by the co-sharer; it formed part of the analytical framework adopted by the Court. |
Court's Reasoning and Analysis
The Court proceeded through a sequential analysis:
- On res judicata: The Court did not accept that the prior decree of 29 April 1915 conclusively decided the present question because the issue now in controversy was not directly and substantially in issue in the previous litigation and was not finally decided there. Thus, res judicata did not dispose of the present controversy.
- On the facts of title and execution history: The opinion recounts that the plaintiffs' claimed interest came through a chain of sales and purchases, some of which were not recorded in the landlord's office. Dighapatia instituted and obtained a decree under Section 148-A, executed without the notice under Section 158-B(2) being served on Tagore, and a sale followed in which Kishori Mohan Srimany became purchaser on 11 September 1913.
- On the legal effect of omission to serve notice under Section 158-B(2): The Court examined the precise language of Sub-section 2 and observed that it does not expressly state the result of non-compliance. The Court reviewed prior authorities (including Sarif and Ahamad Biswas) which had held the provision mandatory and had invalidated sales where the co-sharer challenged them. However, the Court emphasized that in those precedents the co-sharer did challenge the sale.
- On the nature of statutory violations and the test of nullity versus irregularity: Relying on Ashutosh Sikdar and other authorities, the Court adopted the principle that the consequence of violating a statutory provision depends on the nature, scope and object of that provision. It quoted an established test: whether the affected party can waive the objection — if waiver is possible, the defect amounts to an irregularity; if waiver is impossible, it is a nullity.
- On the legislative purpose of Section 158-B(2): The Court reasoned that the section was enacted to protect co-sharer landlords by ensuring they had notice of execution proceedings, because once a sale under the relevant sections took place, the purchaser's tenure could not be pursued by the co-sharer for his dues; the co-sharer would be confined to the sale proceeds. Therefore, the protection is for the benefit of the co-sharer landlord.
- On the possibility and effect of waiver: Because the protection is intended for the co-sharer (an individual), the co-sharer is entitled to waive the benefit of Section 158-B(2). In the present case the co-sharer (Tagore) did not challenge the sale; he adopted it, withdrew his share of the purchase money and granted mutation to the purchaser. On these facts the Court concluded that the omission to serve the notice did not nullify the sale nor alter its character into a mere money-decree sale.
- Conclusion of analysis: Applying this reasoning, the Court held that the purchase by Kishori Mohan Srimany on 11 September 1913 extinguished the interest of the plaintiffs and therefore the relationship of landlord and tenant did not exist between the parties during the years in claim.
Holding and Implications
Holding:
DISMISSED. The appeal is dismissed. The Court held that the purchase by Kishori Mohan Srimany at the sale held in execution of the decree obtained by Dighapatia extinguished the plaintiffs' interest, and therefore no landlord-tenant relationship existed between the parties during the years in claim.
Implications:
- Direct effect on the parties: The plaintiffs' suit for recovery of arrears of rent fails because their title was held to have been extinguished by the execution sale. The appeals (Nos. 2249, 2252 and 2280 of 1920) were dismissed. Costs were allowed in each appeal where the respondent had entered appearance.
- On precedent and broader law: The Court applied and distinguished prior authorities concerning the effect of failure to comply with statutory notice requirements. It adopted a contextual rule — whether a statutory provision is intended for public policy (non-waivable) or for the benefit of an individual (waivable) — and applied that principle to Section 158-B(2). The opinion did not state that it was establishing a novel principle beyond applying that test to the facts; the decision rests on the direct effect on the parties given the co-sharer's conduct in this case.
1. This is an appeal by the plaintiffs in a suit for recovery of arrears of rent. The defendants denied the relationship of landlord and tenant during the years in claim. They urged in substance that the title of the plaintiffs had been extinguished as the result of a sale held in execution of a decree passed in a suit instituted under Section 148-A of the Bengal Tenancy Act.
2. The Court of first instance gave effect to this contention and dismissed the suit. Upon appeal the decree of the primary Court has been affirmed by the District Judge. On second appeal it has been argued that the question of title of the plaintiffs is res judicata in view of a decree made on the 29th April, 1915, in a previous suit between the parties. This view has been rejected by both the Courts below. It is not necessary to examine in detail the scope of the earlier suit because we have arrived at the conclusion that the question now in controversy was not directly and substantially in issue in the previous litigation and was not finally decided therein. Consequently we have to consider the effect of the sale held on the 11th September, 1913, in execution of a decree for arrears of rent in a suit instituted under Section 148-A of the Bengal Tenancy Act.
3. It is not disputed that the interest claimed by the plaintiffs was originally held under two landlords Dighapatia and Tagore. On the 13th July, 1897, one Amarendra Nath Ghose purchased the tenancy at a sale held in execution of a decree obtained by Dighapatia against Panch Couri Ghose who was the recorded tenant. The right, title and interest of Panch Couri Ghose was subsequently purchased by Asutosh Ghose, the pro forma defendant in the present suit, and Arunoday Ghose, the predecessor-in-interest of the plaintiffs at a sale held in execution of a money-decree. The names of Asutosh Ghose and Arunoday Ghose do not appear however to have been recorded in the office of the landlord. The consequence was that Dighapatia brought a suit against One Behary Lal Roy who had purchased the tenancy at a sale in execution of a decree for arrears of rent on the 9th September, 1902. This suit was instituted under Section 148-A of the Bengal Tenancy Act. A decree was obtained in due course in the presence of Tagore who was made a party defendant. No notice, however, was served upon Tagore under Section 158-B of the Bengal Tenancy Act and yet the decree was executed. At the sale which followed Kishori Mohan Srimany under whom the contesting defendants claim, became the purchaser on the 11th September, 1913. We are invited to hold that the effect of this purchase by Kishori Mohan Srimany was to extinguigh the interest acquired by Asutosh Ghose and Arunoday Ghose on the 10th March, 1902. The plaintiffs contended in the Courts below that the decree obtained by Dighapatia in the suit instituted under Section 148-A could not operate as a decree for the entire rent according to the provisions of the Bengal Tenancy Act, inasmuch as the notice contemplated by Section 158-B was not served on Tagore. This contention has been negatived by the Courts below. The point consequently reduces to this : what is the effect of the omission of the co-sharer landlord who has instituted a suit under Section 148-A of the Bengal Tenancy Act to serve the notice contemplated by Sub-section 2 of Section 158-B. The appellants contend that the result is to destroy the character of the decree as a decree for arrears of the rent and to make it operative only as a decree for money so that at the sale which follows the right, title and interest of the person named as the judgment-debtor alone passes. In support of this view reliance has been placed upon the cases of Nanda Lal v. Kula Chand [1910] 15 C.W.N. 820, Sarif v. Tilattama [1917] 43 I.C. 3 and Ahamad Biswas v. Benoy Bhusan Gupta [1919] 23 C.W.N. 931.
4. To determine the question raised before us it is necessary to investigate the scope and object of Sub-section 2 of Section 158-B. That sub-section is in these terms: When one or more co-sharer landlord having obtained a decree in a suit framed under Sub-section (1) or under Section 148-A applies or apply for the execution of the decree by the sale of the tenure or holding; the Court shall, before proceeding to sell the tenure or holding, give notice of the application for execution to the other co-sharers. It will be observed that the section does not in express terms state the result of the failure to comply with this direction. The cases of Sarif v. Tilattama [1917] 43 I.C. 3 and Ahamad Biswas v. Benoy Bhusan Gupta [1919] 23 C.W.N. 931 laid down that the provisions contained in Sub-section 2 of Section 158-B is mandatory and not directory, and the failure of the Court to serve the notice rendered the sale invalid. In support of this view reliance was placed upon the decision of the Judicial Committee in Raghunath Das v. Sundar Das Khetri A.I.R. 1914 P.C. 129, which turned on the true construction of Section 248, Civil Procedure Code of 1882, now replaced by Order 21, Rule 22 of the Code of 1908. It must be remembered in this connection that the validity of the sale in the two cases mentioned was challenged by the co-sharer concerned and it may be conceded that the co-sharer who has not received the notice required to be served under Sub-section 2 of Section 158-B is entitled to contest the legality of the sale on that ground. In the case before us the legality of the sale has not been questioned by the co-sharer. On the other hand, as pointed out by the District Judge, that co-sharer has adopted the sale, withdrawn his share of the purchase money and granted mutation of name to the purchaser. It may consequently be inferred that he knew of the sale and acquiesced therein. Can it be maintained, then, in such circumstances, that the sale was either a nullity or a sale inoperative as a sale under the Bengal Tenancy Act. The answer depends upon the scope and purpose of Section 158-B.
5. It was pointed out in the case of Ashutosh Sikdar v. Beharilal Kiritania [1907] 35 Cal. 61, that a sale held contrary to legislative enactment is not necessarily a sale absolutely without jurisdiction. It cannot be maintained on principle that because a sale has been held in contravention of a statutory provision, it must, irrespective of the nature and purposes of the provisions, be deemed to be null and void. Reference may be made to five decisions of the Judicial Committee in illustration of this principle. The cases of Tassaduk Rasul Khan v. Ahmad Husain [1893] 21 Cal. 66, where a sale was held in violation of the provisions of Sections 290, Civil Procedure Code, Gobind Lal Roy v. Ram Janam Misser [1893] 21 Cal. 70, (whore a sale for arrears of revenue was held in contravention of the provisions of sections 5 and 17 of Act XI of 1859) and Malkarjun v. Narhari [1900] 25 Bom. 337, (where a sale was held contrary to the provisions of Section 248 of the Code) amply show that there may be cases where the violation of an express provision of a statute may not nullify the proceedings. On the other hand, the cases of Nusserwanjee Festonjee v. Meer Mynoodeen [1855] 6 M.I.A. 134, (where an arbitration proceeding was carried on contrary to the provisions of the Bombay Regulation VII of 1827) and Subrahwania Ayyar v. King-Emperor [1901] 25 Mad. 61, (where a trial was held in contravention of the rule of joinder of charges embodied in Section 234 of the Criminal Procedure Code) are instances where failure to comply with the provisions of a statute completely vitiated the proceedings. The only rule that may be adopted is that, when the provisions of a statute have been contravened, if a question arises as to how far the proceedings are affected by such contravention the matter must be determined with regard to the nature, scope and object of the particular provision which has been violated. No hard and fast line can be drawn between a nullity and an irregularity. But this much is clear that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding or apply to its whole operation whereas a nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated. One test is well-established and is often useful as was observed by Coleridge, J., in Holmes v. Russell 9 Dow. 28
"it is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if ho can waive it, it amounts to an irregularity; if he cannot, it is a nullity."
6. Now if the provision has been enacted on grounds of public policy, an individual cannot be permitted to waive it. On the other hand if the provision has been enacted for the benefit of an individual he is entitled to waive it. Tested from this point of view, what is the obvious purpose of Section 158-B, Sub-section 2? The object which the Legislature had in view was to protect the co-sharer landlord. The sale in execution of the decree made in the suit framed under Sub-section 1 of Section 158-B or under Section 148-A has the effect of a sale under the provisions of the Bengal Tenancy Act; in other words, the tenure or holding in the hands of the purchaser can no longer be pursued by the co-sharer landlord for the realization of his dues, if any. The co-sharer landlord who has been made a party to the suit is restricted to the sale proceeds for the satisfaction of his dues. It is consequently necessary for his protection that ho should have notice of the execution proceedings in time to ensure their legality or regularity. From this point of view, it is open to the co-sharer landlord to waive the benefit of Sub-section 2 of Section 158-B. This is precisely what has happened in this case. Here the co-sharer landlord was satisfied with the regularity of the execution proceedings. He withdrew the money which was in Court in satisfaction of his dues. In such circumstances, it is impossible for us to hold that the omission to serve upon the co-sharer landlord the notice contemplated by Sub-section 2 of Section 158-B either nullified the sale or altered its character to that of a sale held in execution of a money decree. The conclusion follows that the Courts below have correctly held that the purchase by Kishori Mohan Srimany on the 11th September, 1913, at the sale held in execution of the decree obtained by Deghapatia was to extinguish the interest of the plaintiffs, and the relationship of landlord and tenant was not in existence between the parties to this suit during the years in claim.
7. The result is that this appeal is dismissed.
8. Nos. 2249, 2252 and 2280 of 1920.
9. In the view we take it is not necessary to consider whether these appeals are or are not competent. They are all dismissed.
10. Costs will be allowed in each of the appeals where the respondent has entered appearance.
Section 158-B.Alert