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Raja Pirthvi Chand Lal v. Rani Prabhabati
Judgment Summary — Excerpted Opinion (Fazl Ali, C.J., with concurring judgments)
Factual and Procedural Background
The suit originated from the plaintiffs (proprietors of Raj Banaili) seeking to recover possession of a dar-patni tenure known as Saara Basethi. The Subordinate Judge of Purnea decreed the suit in favour of the plaintiffs; three defendants (defendants 1–3), who are the zamindars of paraganah Haveli, appealed.
Background facts (in brief, as presented in the opinion): a patni tenure called Lat Meerzapur Khoparia was created in 1854 and later held by various persons including Rani Mina Kumari and her son Maharaj Bahadur Singh. The dar-patni tenure in dispute was an under-tenure held by the Kumars of Srinagar. The Kumars had borrowed a large sum from the plaintiffs and mortgaged their dar-patni interest. The plaintiffs enforced their mortgage and purchased the dar-patni in execution of a decree (sale/purchase dates in 1931–1932 are noted). The defendants contend that earlier rent-sales of the superior patni tenure (in 1916 and 1925) extinguished the dar-patni; the plaintiffs say the dar-patni survived because the statutory procedure for annulment was not properly followed and that the plaintiffs had acquired the dar-patni by mortgage execution.
Legal Issues Presented
- Whether the sale of a patni tenure in execution of a decree for arrears of rent (when that sale is held under the Bihar/Bengal Tenancy Act) has the effect of ipso facto annulling a subordinate dar-patni tenure by virtue of the Patni Regulation (Regulation VIII of 1819), or whether the annulment must be effected in accordance with section 167 of the Tenancy Act (i.e., by following the statutory procedure laid down in that Act).
- Whether the notices issued under section 167 of the (Bihar/Bengal) Tenancy Act in respect of the 1916 sale were duly and lawfully served on the dar-patnidars (the Kumars of Srinagar).
- Whether, as a consequence of the above, the plaintiffs who purchased the dar-patni in execution of their mortgage decree were entitled to recover possession.
Arguments of the Parties
Appellants' (Defendants / Zamindars) Arguments
- The dar-patni tenure was automatically wiped out by the first rent-sale held in 1916 (and alternatively by the second sale in 1925). They rely on the Patni Regulation, particularly section 11, as declaring that a patni sold for arrears is to be sold free of encumbrances and that intermediate under-tenures are to be considered cancelled when a sale is held under the Regulation.
- Alternatively, even if not automatically annulled, the dar-patni was annulled when notices under section 167 of the Bengal Tenancy Act were issued and (they contend) served after the 1916 purchase by Rani Mina Kumari.
- The defendants also argued that because they were in possession (having acquired the patni at rent-sale), they could not now be dispossessed by the plaintiffs on technical or procedural grounds.
Plaintiffs' (Respondents / Purchasers under Mortgage Decree) Arguments
- The plaintiffs contended that the dar-patni tenure continued to subsist because the statutory procedure necessary to annul it under the Tenancy Act was not properly complied with (service of notices was insufficient and required steps under section 167 and the rules were not followed).
- The plaintiffs relied on their mortgage decree and subsequent purchase in execution to claim entitlement to possession of the dar-patni property.
- The plaintiffs also pointed to subsequent conduct and documents (compromise petition and sales deeds) to show that the dar-patni had continued to be treated as subsisting by parties who had been involved, and in any event that the notices under section 167 had not been validly served.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raja P.C. Lal Chaudhury v. Gulzar Ali | Held that sale of the patni interest in execution of a rent decree cancels the dar-patni; the Bengal Tenancy Act proceedings under s.167 do not affect the consequences of a sale under the Patni Regulation (as applied by the Court in that case). | The present Court reviewed this authority: it acknowledged the decision but expressly dissented from its broad application. The Court concluded that the reasoning in that case is not decisive here when the sale is held under the Tenancy Act without following the Patni Regulation procedure. |
| Durlav Chandra Chowdhuri v. Jamiruddin Ahamed Chowdhuri | Observation relied on: the Bengal Tenancy Act (s.195(e)) does not affect rights under the Patni Regulation and the parties' rights may have to be determined under the Regulation. | Cited by prior judges and discussed by the Court. The Court considered the decision but emphasised that context and procedure matter; it declined to adopt the view that the Patni Regulation applies automatically to sales held under the Tenancy Act. |
| Srimati Krishna Promoda Dassi v. Dwarka Nath Sen | Held that sale under the rules of the Patni Regulation cancels intermediate tenures (effect of sale under the Regulation). | The Court accepted that this authority supports the appellants only where the sale was conducted under the Patni Regulation; it limited the decision's applicability and held it does not control sales held under the Tenancy Act procedure. |
| Ananda Gopal Gossain v. Nafar Chandra Pal Chowdhuri (Privy Council) | Privy Council held that notices under s.167 had been served in the manner prescribed for service of summons under the Code of Civil Procedure (fact-specific ruling on service). | The Court used this authority to illustrate that, had dar-patni been automatically annulled by sale, the Privy Council's decision could have rested on that ground. The Court inferred from that context that automatic annulment is not the accepted law for sales under the Tenancy Act. |
| Brindabun Chunder Sircar Chowdhry v. Brindabun Chunder Dey Chowdhury | Held that where a patni tenure was sold for arrears under Act X of 1859 (s.105), the sale destroyed encumbrances created by the patnidar because s.105 referred sales to the rules of the Patni Regulation. | The Court distinguished this case: it noted the decision depended on a provision in Act X of 1859 (s.105) that incorporated Patni Regulation rules; by contrast s.195 of the Tenancy Act does not have the same effect. |
| Turner Morrison v. Monmohan Chaudhury (Privy Council) | Explained that section 11 of the Patni Regulation differentiates between “under-tenure” and “encumbrance” (interpretation of terms in s.11). | The Court relied on this distinction to show that an under-lease (dar-patni) is not necessarily the same as an encumbrance under the Tenancy Act and that textual differences matter when construing the Regulation alongside the Act. |
| Krista Das Laha v. Jotindra Nath Basu | Related to mortgagees of a patni tenure and whether their mortgage was a protected interest under the Tenancy Act; High Court relied in part on s.195(e). | The Court described the High Court's reasoning and expressed reservations: it noted the decision assumed application of s.11 of the Regulation to override Tenancy Act provisions without clear reasoning and did not treat that decision as controlling here. |
| Forbes v. Bahadur Singh (Privy Council reference) | Described the Patni Regulation as a self-contained enactment (characterisation of the Regulation's nature). | The Court cited this as authority for the view that the Patni Regulation contains its own procedure and that procedure must be followed when the zamindar elects to proceed under it. |
| Bhomshetti v. Umabai | Held that a serving officer must exercise due and reasonable diligence before resorting to substituted service (interpretation of Rule 17, Order V, CPC, on service). | The Court applied this principle to find that the peon's report did not show due diligence or proper service; the Court relied on the authority to uphold the Subordinate Judge's finding that service under s.167 was insufficient. |
| Brindaban Chunder Sarkar Chowdhry v. Brindaban Chunder Dey Chowdhry (Privy Council) | Considered effect of sale under s.105 of Act X of 1859 and held Regulation VIII of 1819 applied to such sales (consequence: encumbrances destroyed where those sales were conducted under that statutory reference). | The Court distinguished the present case from that authority because the present Tenancy Act s.195(e) is not equivalent to s.105 of Act X of 1859; therefore the Privy Council's reasoning there was not controlling here. |
Court's Reasoning and Analysis
The Court conducted a careful textual and contextual analysis of the Patni Regulation (Regulation VIII of 1819) and the Bengal/Bihar Tenancy Act (including section 167 and section 195(e)). The central analytical points made by the Court are summarized below in the sequence in which they were applied:
- Coexistence of statutes: The Court held that the Patni Regulation remains in force (s.195(e) confirms that nothing in the Tenancy Act affects enactments relating to patni tenures). Consequently the two enactments coexist and each prescribes its own procedure for realizing rent and for annulling encumbrances or subordinate tenures.
- Scope of section 11 of the Patni Regulation: Section 11 clearly provides that when a taluq is disposed of "at a public sale under the rules of the Regulation" it shall be sold free from encumbrances and that under-tenures must be considered cancelled. The Court emphasised that the operative words refer expressly to sales conducted under the Regulation's rules; the automatic annulling effect flows only when the sale occurs under the Regulation.
- Procedural importance: Because each enactment contains a prescribed procedure for annulment (Patni Regulation: sections 8, 11, 13, 15, etc.; Tenancy Act: section 167 and related rules), the Court concluded that the zamindar's election to proceed under one statute requires compliance with that statute's procedure. The Court rejected the idea that a zamindar could mix or import the substantive benefits of the Patni Regulation while following the Tenancy Act's procedure — procedural compliance is necessary to effect the extinction of an under-tenure.
- Distinctions by reference to precedent and statute: The Court distinguished authorities that reached annulment results where sales were held under statutes or provisions that expressly incorporated the Patni Regulation (for example, s.105 of Act X of 1859). The present case involved sales conducted under the Tenancy Act procedure; the Court held that s.195(e) does not operate in the same manner as s.105 of Act X of 1859 and therefore does not automatically import Regulation VIII's procedural consequences into every Tenancy Act sale.
- Construction of ambiguous phrases in s.11: The Court considered arguments that the general language of s.11 (references to "encumbrances", "mortgage", "other limited assignment", and "on sale of a taluq for arrears") should be read to apply to all sales regardless of procedure. The Court rejected that out-of-context reading and reiterated the canon that the clause must be read in the context of the Regulation; the first clause's clear reference to a sale "under the rules of this Regulation" limits its operation.
- Requirement under Tenancy Act: Where the zamindar proceeds under the Tenancy Act, the purchaser's power to annul encumbrances (and under-tenures) is exercisable only in the manner directed by that statute (section 159/167 and Chapter provisions). The Court relied on previous decisions interpreting s.167 to show that non-compliance with the procedural requirements saves the under-tenure from annulment.
- Factual application to service under s.167: The Court examined the peon's report and the Collector's order-sheet entries concerning issuance and alleged posting of notices in March 1917. It found deficiencies: the peon's report did not name or establish that a named servant was authorised to accept service; there was no verification by affidavit of the serving peon; the Collector made only a short note and did not record a finding of sufficient service or conduct the enquiries contemplated by Order V rules. The Court applied judicially recognised standards (including Bhomshetti v. Umabai) on the degree of diligence required for substituted service and concluded the s.167 notices were not lawfully served.
- Conduct of parties and documentary material: The Court reviewed subsequent compromise petitions and a sale deed executed pursuant to compromise and noted apparent inconsistencies in parties' conduct (some documents treated the dar-patni as subsisting; other deeds recited annulment). The Court found these matters raised suspicion but ultimately relied on the legal insufficiency of service rather than on these equivocal documents to decide that the dar-patni was not legally terminated.
- Conclusion drawn from analysis: Given the statutory text, the distinct procedural regimes, and the deficient service of the s.167 notices, the Court concluded that the dar-patni had not been legally annulled by the 1916 or 1925 sales and that the plaintiffs' mortgage-based purchase entitled them to succeed in recovering possession.
Holding and Implications
APPEAL DISMISSED.
Holding (core ruling): The Full Court held that a sale of a patni tenure held under the procedure of the (Bengal/Bihar) Tenancy Act does not ipso facto annul a subordinate dar-patni tenure by reason of the Patni Regulation unless the specific procedural requirements of the Patni Regulation (i.e., a sale held under the rules of that Regulation) have been complied with. Where the zamindar elects to proceed under the Tenancy Act, annulment of an encumbrance or under-tenure must be effected in the manner prescribed by that Act (not automatically by reference to the Patni Regulation). Further, the notices issued under section 167 in 1917 were not validly served according to the statutory rules; therefore the dar-patni subsisted and the plaintiffs were entitled to recover possession.
Immediate consequences for the parties: The Subordinate Judge's decree in favour of the plaintiffs is upheld; the defendants' appeal is dismissed with costs. The plaintiffs, having acquired the dar-patni by execution of their mortgage decree, retain their right to possession because the subordinate tenure was not lawfully terminated.
Broader legal implication (as reflected in the opinion): The judgment emphasises the primacy of statutory procedure: where two statutes deal with the same subject-matter (Patni Regulation and the Tenancy Act) and provide different procedural routes to annul subordinate interests, a purchaser must follow the procedural route applicable to the statute under which the sale was conducted. The Court limited the reach of prior authorities that had applied the Patni Regulation to sales referenced by other statutes and distinguished those cases on textual and contextual grounds.
Note: This summary is based exclusively on the contents of the provided opinion. No new facts, outside authorities, or inferences beyond the text of the opinion have been introduced.
Fazl Ali, C.J:— This is an appeal from the judgment and decree of the Subordinate Judge of Purnea in a suit instituted by the plaintiff-respondents (who for the sake of brevity may be described as proprietors of Raj Banaili) to recover possession of a dar-patni tenure known as Saara Basethi. The suit has been decreed in favour of the plaintiffs by the learned Subordinate Judge and three of the defendants (defendants 1 to 3) have preferred this appeal.
The facts of the case are somewhat complicated, but I shall state them very shortly in order to elucidate the main points which arise for decision in this appeal. The disputed properties are situated within paraganah Haveli of which the appellants are admittedly the zamindars. It appears that some time in 1854 one of their predecessors in interest Raja Pratap Singh, created within this paraganah a patni tenure consisting of several mauzas known as Lat Meerzapur Khoparia. This patni tenure in course of time came to be owned and possessed by one Chhatrapat Singh and afterwards by one Rani Mina Kumari and lastly by her son Maharaj Bahadur Singh. The dar-patni tenure with which we are concerned in this case was held under the above patnidars by certain persons who may be described as the Kumars of Srinagar and was purchased by the plaintiffs in the following circumstances.
The Kumar of Srinagar (dar-patnidars) had borrowed a sum of Rs. 6,57,000 from the proprietors of Banaili Rai and to secure the said loan had mortgaged among other properties their interest, in this dar-patni tenure. A part of this debt was paid off by the dar-patnidars by executing two subsequent mortarage bends in 1912 and 1915 respectively in favour of defendant no. 1: but as the outer debt was not paid off the proprietors of Banaili (the plaintiffs) brought a, suit to enforce their mortgage and in execution of the decree which they obtained ??? the dar-patni on the 24th March, 1931, and obtained??? through Court on the 1st March, 1932. The pontiffs' case is that after the ??? the defendants without any justification ??? to interfere with their ??? and inasmuch as in the dispute which followed the Criminal Court made certain orders against them they were compelled to institute the present suit to establish their title in and recover possession of the dar-patni property which according to them had been wrongfully taken possession of by the defendants.
The defendants, as I have already stated, are the zamindars of paraganah Haveli and their main defence is that the dar-patni tenure no longer subsists because the dar-patni interest came to an end upon the sale of the patni tenure (to which the dar-patni tenure was subordinate) for arrears of rent. They refer to two such sales to which reference will be made presently and rely upon certain provisions of the Patni Regulation (VITI of 1819) under which they say the under-tenues are automatically annulled upon the sale of the superior tenure for arrears of rent.
Regulation VIII of 1819, otherwise known as Patni Regulation, purports (1) to declare the validity of certain tenures, (2) to define the relative rights of zamindars and patni talukdars and (3) to establish a process for the sale of patni taluks in satisfaction of the zamindar's demand of rent. This Regulation describes in its preamble what a patni tenure is and then proceeds to say
“it has been a common practice of the holders of them to underlet on precisely similar terms to other persons, who on taking such leases went by the name of dar-patni talukdars”.
Section 8 of the Regulation declares the right of the zamindars to apply in the manner stated in the Regulation for periodical sales of
“any tenures upon which the right of selling or bringing to sale for an arrear of rent may have been specially reserved by stipulation in the engagements interchanged on the creation of the tenure”.
The procedure for the sale is set out in the second and third clauses of this section and briefly amounts to this that the zamindars on the first day of Bysakh or on the first day of Kartik may present a petition to the Collector containing a specification of his dues from the patnidar and thereupon the petition is to be stuck up in some conspicuous part of the cutchery with a notice that if the amount claimed is not paid before the first day of Jeth Or Asin following, as the case may be, the tenure of the defaulter would on that day be sold by public sale in liquidation of the arrears. Sections 9 and 10 contain certain provisions as to the mode in which the sale is to be conducted and section 11, which is the most important section for the purpose of this appeal, provides, firstly, that when any taluq is disposed of at a public sale under the rules of the Regulation for arrears of rent due on account of it, it shall be sold free of all encumbrances that may have accrued upon it by act of the defaulting proprietor or his representatives and no transfer by sale, gift or otherwise and no mortgage or limited assignment shall ordinarily be permitted to bar the right of the zamindar to hold the tenure answerable, in the state in which he created it, for the rent; and, secondly, that in like manner on sale of a taluk for arrears, all leases originating with the holder of the former tenure, if creative of a middle interest between the resident cultivators and the late proprietor, must be considered to be cancelled. These provisions clearly contemplate that when a patni tenure is sold by the zamindar under the Regulation for arrears of rent, the sale has the effect of wiping off the encumbrances as well as an under-tenure such as dar-patni, and the zamindar is entitled to purchase the property in the state in which it was when he created the patni. The first clause clearly states that the consequences set out therein are to follow upon a sale under the Regulation for arrears of rent and though the words which occur in that clause are not repeated in the second clause, I have no doubt that clause also was intended to apply only to a sale under the Regulation.
There are also provisions for the sale of a patni tenure in the Bengal Tenancy Act but there are the following essential points of difference in the procedure laid down respectively in the Patni Regulation and the Bengal Tenancy Act: (1) Under the Bengal Tenancy Act a zamindar need not confine his claim to one year's rent only but may sue for the rent of four years, whereas under the Patni Regulation he must apply to the Collector either on the first day of Bysakh or on the first day of Kartik and his application is to be confined only to the dues of the previous year or part of the current year only. (2) The procedure for the sale of the tenure provided in the two enactments is different and (3) whereas under the Patni Regulation the under-tenures and encumbrances are wiped out automatically when a sale is held under that Regulation, under the Bengal Tenancy Act the purchaser at the sale has to move the Collector to serve on the encumbrancer a notice declaring that the encumbrance is annulled. The same procedure is to be followed for avoiding an under-tenure because section 161 of the Act defines the term “encumbrance” so comprehensively, as to include an under-tenure also.
I will now set out the circumstances under which the two rent sales relied upon by the defendants took place. The first sale took place in execution of a decree obtained by the defendants against the patnidars in Rent Suit no. 32 of 1915. The decree was passed on the 3rd December, 1915, and the Patni mahal was purchased by one Rani Mina Kumari in execution of that decree on the 27th March, 1916. After the sale was confirmed on the 15th February, 1917, the Rani moved the Collector for issuing notices under section 167 of the Bengal Tenancy Act for the annulment of the dar-patni tenure in dispute and such notices were directed to be issued on the 20th March, 1917, to Kumar Kalikanand Singh and two minor sons of Kumar Kamlanand. The defendants' case is that towards the end of 1917 a peon went with these notices to the residence of the Kumars and hung them up there. On the 11th March, 1917, the Collector noted in his order-sheet—
“Notices hung up on 9th March, 1917. Note in the register and file.”
The other suit (no. 9 of 1920) was brought by defendant no. 1 against the patnidar in 1920 and it ended with a compromise decree being passed in his favour on the 30th March, 1922. In 1924 the defendant no. 1 started execution proceedings and purchased the patni mahal at the execution sale on the 4th June, 1925. In May 1929 he obtained delivery of possession in respect of this mahal.
Now the appellants have put forward two alternative contentions on the basis of these sales. Their first contention is that the dar-patni tenure was automatically wiped out by the first rent sale which was held in 1916 and even if for some reason or other it is supposed to have survived that sale, it should be deemed to have been wiped out by the second sale which was held in 1925. They contend that the true effect of the provisions of the Patni Regulation is that whenever a patni tenure is sold for arrears of rent, the under-tenure is ipso facto annulled, whether the zamindar proceeds under the Regulation or under the Bengal Tenancy Act, because if it is the indefeasible right of the zamindar to get the patni tenure free from all encumbrances or under-tenures as declared by sections 11 and 12 of the Patni Regulation such a right cannot be held to be dependent on any particular procedure provided for the sale of the tenure. The appellants also alternatively contend that in any case the dar-patni came to an end upon the notices under section 167 of the Bengal Tenancy Act being served by Rani Mina Kumari on the Kumars of Srinagar after she had purchased the patni in 1916.
It appears that the point which is raised on behalf of the appellants directly arose in Raja P.C Lal Chaudhury v. Gulzar Ali which decides that the effect of a sale of the patni interest in execution of a decree for rent payable by the patnidar is to cancel the dar-patni tenure, if any, and whether the landlord took proceedings successfully or unsuccessfully for the annulment of the dar-patni tenure under section 167 of the Bengal Tenancy Act does not affect the consequences of the sale of the patni tenure enacted by the Patni Regulation. In that case which also related to Lat Meerzapur the zamindar had sued the patnidar for arrears of his rent and had in execution of his decree which he subsequently obtained put to sale and purchased the tenure. As the suit had been brought under the Bengal Tenancy Act and the execution proceedings had also been taken under the provisions of the same Act he applied to the Collector under section 167 of the Act for a notice annulling a dar-patni, but it was not disputed that the proceedings were void because they were not taken in time. The landlord, however, fell back on the Patni Regulation and contended that the dar-patni was cancelled when he took the unequivocal step of applying for cancellation. Sir Courtney Terrell, C.J who delivered the judgment in that case referred with approval in the course of that judgment to the following observation made by a Bench of the Calcutta High Court in Durlav Chandra Chowdhuri v. Jamiruddin Ahamed Chowdhuri.
“The Bengal Tenancy Act does not, in view of the provisions in section 195(e) affect the rights of patnidars under the Patni Regulation and so the rights of the parties have to be determined under it. The plaintiff has doubtless in the present case based his cause of action on the Bengal Tenancy Act, but if his right to recover possession is found to exist under some other provision of law it would be sacrificing substance to form to deny his such right.”
He then proceeded to observe as follows:—
“It is argued that proceedings under the Patni Regulation could only be taken for one year's rent and that there was a difference between annulment under that enactment and annulment under the Bengal Tenancy Act. At the date of the Patni Regulation all proceedings against patnidars were governed by it. It is true that by the Rent Act of 1859 a further process was introduced for proceedings for rent and for annulment of intermediate tenures but these were in addition to and not in substitution for the proceedings under the Patni Regulation in relation to patni tenures. The Bengal Tenancy Act again developed and expanded such proceedings and by Section 195 of the Bengal Tenancy Act.
“Nothing in this Act shall affect any enactment relating to patni tenures, in so far as it relates to those tenures.”
The effect on a darpatni interest of a sale of the patni interest in execution of a decree for the rent payable by the patnidar has been the subject of discussion in many cases which were finally reviewed in the authoritative decision of Sir Lawrence Jenkins, C.J in Srimati Krishna Promoda Dassi v. Dwarka Nath Sen and it was held that the effect of the sale was to cancel the intermediate tenures if any.”
The case of Krishna Promoda Dassi as well as the case of Durlav Chandra Chowdhuri to which reference was made by Courtney Terrell, C.J, in his judgment undoubtedly support the appellants' contention but the learned Judges who heard the present appeal in the first instance were of the opinion that the point involved in it is not free from difficulty and accordingly referred the whole case to a Full Bench. In my opinion also the point is of great difficulty and requires careful consideration.
Now, it is beyond controversy that when a zamindar purchases a patni tenure in execution of a decree for arrears of rent due in respect of that tenure, he is entitled to get it free from all encumbrances and such under-tenures as may have been created by the holder of the tenure. On this point there is no difference between the Patni Regulation and the Bengal Tenancy Act. It is, however, to be remembered that the Patni Regulation (VIII of 1819) is a self-contained enactment and contains clear provisions relating to the procedure which the zamindar has to adopt for the purpose of realising his rent. In the first placa there is, as I have already stated, no provision the Regulation for recovery of arrears of rent for more than a year; secondly, section 8 lays down a distinct procedure which requires the zamindar to stick up his petition claiming arrears in a conspicuous part of the cutchery along with a notice drawn up in the manner provided in the Regulation; thirdly, section 13 enables the holder of a taluq of the second degree (such as a dar-patnidar) to save his tenure from
“the ruin that must attend the sale of the superior tenures”.
Sub-section (2) of this section provides—
“Whenever the tenure of a taluqdar of the first degree may be advertised for sale in the manner required by the second and third clauses of section 8 of this Regulation, for arrears of rent due to the zamindar, the taluqdars of the second degree, or any number of them, shall be entitled to stay the final sale, by paying into court the amount of balance that may be declared due by the person attending on the part of the zamindar on the day appointed for sale; in like manner they shall be entitled to lodge money antecedently, for the purpose of eventually answering any demand that may remain due on the day fixed for the sale, and, should the amount lodged be insufficient, the sale shall not proceed, but, after making good to the zamindar the amount of his demand, any excess shall be paid back to the person or persons who may have lodged it.”
Then sub-section (4) declares that—
“Such deposit shall not be carried to credit in, or set against, future demands for rent, but shall be considered as a loan made to the proprietor of the tenure preserved from sale by such means, and the taluq so preserved shall be the security to the person or persons making the advance, who shall be considered to have a lien thereupon, in the same manner as if the loan had been made upon mortgage; and he or they shall be entitled, on applying for the same, to obtain immediate possession of the tenure of the defaulter in order to recover the amount so advanced from any profit belonging thereto.”
The special privilege which has been conferred by sub-section (4) has been described by the Privy Council “statutory salvage lien” created by the Regulations in favour of the holder of an under-tenure and it is apparent that none of the above provisions can be availed of by him unless a sale is held under the Regulation. Fourthly, section 14 gives the right to have the sale reversed by means of a suit to any party desirous of contesting the right of the zamindar to make the sale and fifthly, section 15 deals with the manner in which possession is to be delivered to the purchaser and provides among other things that.
“a proclamation shall issue under the seal of the court and signature of the Judge declaring that the new incumbent having, by purchase at a sale for arrears of rent due to the zamindar, acquired the entire rights and privileges attaching to the tenure of the late taluqdar, in the state in which it was originally derived by him from the zamindar and that he alone will be recognised as entitled to make the zamindari collections in the Mufassil and no payments made to any other individual will on any account be credited to the raiyats or others in any suit for rent.”
It further provides that should the late incumbent or his ??? under-tenant continue to oppose the entry of the new purchaser notwithstanding the issuing of such a proclamation, or should there be reason to apprehend a breach of the peace on the part of any one, the aid of the police officers who may be at hand and capable of affording assistance shall be given to the new purchaser on his presenting a written application for the same; and in the event of any affray or breach of the peace occurring, the entire responsibility shall rest with the party opposing the lawful attempt of the purchaser to assume his rights.
The points to be noted so far as this last section is concerned are (1) that it provides that the fact that an under tenure stands annulled is to be duly notified by proclamation issued under the seal of the court and the signature of the judge and (2) that the proclamation to be made under this section virtually takes the place of a document of title so far as the purchaser is concerned, as it has to state among other things that the purchaser will take the patni-tenure free of all encumbrances and under-tenures These provisions are important, because while they give on the one hand to the zamindar the right to have a patni tenure sold free of encumbrances and under-tenures, they also on the other hand protect the holders of the subordinate taluqs (such as a dar-patnidar) by insisting on due publication of the terms of the sale and thereby enabling such holders to take steps to stay and prevent the sale and to obtain “a salvage lien” upon the superior tenure itself by the payment of the arrear which in no case, if the zamindar proceeds under the Regulation, is allowed to accumulate for more than a year. The last provision was probably intended to protect such holders of the under-tenures as might not be able to pay more than a year's rent of the superior tenure to save their under-tenure.
The Bengal Tenancy Act is an equally self-contained statute and has its own procedure for the recovery of arrears of rent and for holding sales for the purpose of realising the decrees obtained for such arrears. One of the essential provisions in that Act is that if the purchaser of a tenure at a rent sale wants to avoid an encumbrance or under-tenure, he must make an application to the Collector as provided under section 167 within a certain time. The importance of this procedure has been emphasised in a number of cases in which it has been held that if such an application is not made, or if it is made more than a year after the point of time specified in the section, then the encumbrance or under-tenure is not annulled but continues to subsist. The Bengal Tenancy Act further does not limit the zamindar to one year's arrears, but makes it possible for him to sue for several years' arrears at the same time.
Now, the Patni Regulations is still in force and section 195(e) of the Bengal Tenancy Act lays down that
“nothing in this Act shall affect any enactment relating to patni tenures in so far as it relates to those tenures”.
In my opinion this provision simply means that the Patni Regulation is still in force and that notwithstanding the enactment of the Bengal Tenancy Act it is open to any zamindar to proceed to realise his rent according to the provisions of that Regulation. It follows therefore that both these enactments—the Patni Regulation and the Bengal Tenancy Act—exist side by side; that each of them has its own provisions relating to the realisation of rent in respect of patni tenures and that a zamindar is at liberty to proceed either under the one or the other for the purpose of recovering arrears of rent from the defaulting patnidar. This being so, it must in my opinion follow as a logical consequence that if the zamindar elects to proceed under the Bengal Tenancy Act, “then in order to cancel a dar-patni, he must proceed” under section 167 of the Act; but if on the other hand he wishes to proceed under the Patni Regulation, then he must conform to the provisions of sections 8, 11 and 15, etc., of that Regulation in order to put an end to the dar-patni tenure. Each of these enactments contains a special procedure for annulling the under-tenures which would have been wholly unnecessary if the under-tenures were annulled automatically upon the sale of the superior tenure. As I have already pointed out, it has been held in a number of cases that non-compliance with section 167 of the Bengal Tenancy Act saves the under-tenure from annulment. If these cases have been correctly decided then non-compliance with sections 8, 11 and 15, etc., of the Patni Regulation must have the same effect because for some reason or other the two enactments not only “affirm the zamindar's right of annulment but also contain distinct provisions as to how that right is to be enforced. Section 195 of the Bengal Tenancy Act was never meant to lay down that section 167 is not applicable to a patni tenure even where proceedings are taken under the Bengal Tenancy Act, nor was it meant to lay down that a zamindar can claim, the full benefit of the Patni Regulations without following the procedure laid down in that Regulation. As the procedures laid down in the two enactments are quite distinct, it will in my opinion be wrong to hold that section 195 sanctions a hybrid course or that it makes the procedures respectively laid down in the two enactments inter-changeable. As to why so much importance should be given to procedure only, one possible answer seems to be that there is nothing wrong in principle in insisting on a strict compliance with a procedure which results in the effacement of a valuable right.
The view which I have taken is supported indirectly, by the decision of the Privy Council in Ananda Gopal Gossain v. Nafar Chandra Pal Chowdhuri(1). In that case the Subordinate Judge had dismissed a suit by a plaintiff who, having purchased certain patni tenures which had been sold in execution of rent decrees, claimed to recover khas possession on the ground that the dar-patni tenures created by the patnidar had been annulled by the service of notices under section 167 of the Bengal Tenancy Act upon them. The suit was dismissed by the Subordinate Judge on the ground that the notices had not been properly served but the Privy Council held that “notices had been served in the manner prescribed for the service of summons on a defendant under the Code of Civil Procedure.” Now it seems to me that if under the law a darpatni tenure is automatically annulled upon the sale of a patni tenure for its own arrears, whether held under the Bengal Tenancy Act or the Patni Regulation, and recourse to section 167 is immaterial, that should have, been the main ground of decision in the case and it was not necessary either for the High Court or the Privy Council to decide whether the notices under section 167 had been duly served.
The learned Advocate for the appellants drew our attention to Brindabun Chunder Sircar Chowdhry v. Brindabun Chunder Dey Chowdhury. In that case a patni tenure was old for arrears of rent under Act X of 1859, and yet it was held that the effect of the sale of such a taluq for arrears of rent was to destroy al], encumbrances which had been created by the patnidar including the dar-patni tenure. That case, however, was decided with reference to section 105 of Act X of 1859 which was to the following effect:—
“If the decree be for an arrear of rent due in respect of an under-tenure, which, by the title deeds or the custom of the country, is transferable by sale, the judgment-creditor may make application for the sale of the tenure, and the tenure may thereupon be brought to sale in execution of the decree, according to the rules for the sale of under tenures for the recovery of arrears of rent due in respect thereof, contained in any law for the time being in force”.
As the Patni Regulation was one of the laws in force, therefore, their Lordships held that the effect of the above provision and also probably of Regulation I of 1820 was that the dar-patni was destroyed. If there had been any provision in the Bengal Tenancy Act similar to and as comprehensive in terms as section 105 of Act X of 1859, the same result would have followed. But Section 195 of the Bengal Tenancy Act dose not go so far as section 105 of Act X. of 1859. Regulation I of 1820 also does not apply to this case, because it merely provides that certain sales which could not be held under the Patni Regulation might be conducted in the mode prescribed by that Regulation. In the present case the sale was not held according to the mode prescribed by Regulation VIII of 1819. As to the decision of Lawrence Jenkins, C.J in Srimati Krishna Promoda Bassi v. Dwarka Nath Sen, to which Courtney Terrell, C.J has referred, it is enough to point out that the sale was held in that case also under the rules laid down in the Patni Regulations. The question which we have to consider is whether the rules laid down in the Patni Regulations would apply even though the sale was not conducted under these rules but was conducted under the Bengal Tenancy Act. With great respect I dissent from the view taken in Raja P.C Lal Chaudhury v. Gulzar Ali and the appellants' contention that the dar-patni was automatically annulled by the sales held in 1916 and 1920 must be negatived.
The next question to be considered is whether the notices under section 167 which were issued at the instance of Rani Mina Kumari in 1917 were duly served upon the dar-patnidars. It appears that in March 1917 Rani Mina Kumari applied to the Collector for a notice regarding the annulment of the darpatni interest (vide exhibit H) and the order-sheet of the Collector shows that notices were ordered to be issued. These notices were addressed to Kumar Kalikanand Singh and the two minor sons of one Kamlanand Singh, deceased, under the guardianship of their uncle Kumar Kalikanand Singh. Both these notices were said to have been served by a peon named Kallu Khan who has not been examined in this case. His service report, however, runs to the following effect:—
“I beg to submit that I went with a lot of processes. When I showed them to his servant he took the processes but did not take this notice and asked me to hang it up. Therefore I hung this up in presence of the two witnesses. To this effect I submit my report to your honour. It may be noted that I hung up a copy of this notice at the Srinagar Kothi”.
His report relating to the notice to the minor is also to the same effect.
Now, it is noteworthy that the name of the servant who is alleged to have refused to accept the notice is not mentioned in the report nor has it been revealed in the evidence whether he was authorised to receive the notice or not. The rules which have been framed under the Bengal Tenancy Act and which are applicable to this case are to the following effect:—
“Where no other mode of service of notice is provided by the Act or by these rules, service shall be effected in the manner provided for the service of summons on a defendant under the Code of Civil Procedure, 1908, if the notice is addressed to one or more persons occupying or owning the same holding or tenure; and if it is addressed to a number of persons occupying or owning different holdings or tenures in the same village, the notice shall be served in the manner provided for the service of summons on a defendant under the Code of Civil Procedure, 1908, or by proclamation and beat of drum and by posting it, in the presence of not less than two persons, on some conspicuous place in the village and also by fixing it up in the village office, if any, where the rent is usually paid. In the case of uninhabited villages, the posting of the notice shall be made in the nearest inhabited village.
Provided that where the person to be served is a minor, notice shall be served on the minor and also either on his or her legal guardian or on his or her guardian ad litem appointed by the court for purposes of service on an application by the person asking for service of notice.”
It was admitted on both sides that the service of notice in this case will be governed by the relevant provisions of Order V of the Code of Civil Procedure which relates to the service of summons. Under this Order service can be effected by affixing, the summons upon the house where the defendant resides either under rule 17 or rule 20. Rule 20 does not clearly apply to the present case and therefore we have to see whether the requirements of rule 17 were complied with. Rule 17 runs as follows:—
“Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom the service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so fixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”
In this case it is admitted that the persons who were to be served with notice did not themselves refuse to sign the acknowledgment. The peon has stated nowhere that he was refused access to these persons. All that he says is that “one of his servants refused to take the notice”, but as I have already pointed out it is not stated that servant had been authorised by the persons, upon whom the notice was to be served, to receive such notice. The servant, therefore, cannot be properly described as their agent. Again it is difficult to say that the peon had used all due and reasonable diligence to find these persons and yet he was unable to find them. It was open to the defendants to have adduced reliable evidence as to the circumstances under which the notice was affixed to the house of the Kumars of Srinagar, but the only witness who was examined on their behalf has been found to be unreliable by the learned Subordinate Judge and no serious attempt was made to question the finding of the learned Subordinate Judge with regard to this witness in appeal. In Bhomshetti v. Umabai it was held that “if a serving officer goes to a defendant's house, but does not find him there, and the defendant's adult son, who is in the house, refuses to accept service on behalf of the father, these facts by themselves do not justify the officer in resorting to the notice of service prescribed by rule 17. He must, before effecting such service, inquire of the son as to where the defendant is and otherwise exercise due and reasonable diligence in finding the defendant”. The facts of that well as certain other cases on the same point are not easily distinguishable from those of the present case.
Rule 19 provides that where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court touching his proceedings and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. In the present case there was no verification of the service by the serving peon or any one else and there was no enquiry by the Collector. The Collector merely noted in the order-sheet upon receiving the peon's report—
“Notice hung up on 9th March, 1917. Note in the register and file.”.
He did not state in so many words that the notice had been duly served or that the service was in his view sufficient. In these circumstances I find it difficult, to hold that the learned Subordinate Judge was wrong in holding the service of the notices in question to be insufficient.
The plaintiffs have also referred us to certain events which according to them afford a clear proof of the fact that even after the alleged service of notice Rani Mina Kumari continued to recognise the dar-patni tenure as still subsisting. In order to appreciate this argument a reference to the following events will be material.
After Rani Mina Kumari purchased the patni, she failed to pay the rent for the Aswin kist of 1323 and defendant no. 1, the zamindar, brought the patni to sale by taking proceedings under the Patni Regulation. On the 16th October, 1916, Rani Jograma, mother of Kalikanand, one of the dar-patnidars purchased the patni in the name of one of her servants Mauji Lal for a sum of Rs. 10,000. On the 30th March, 1917, Rani Mina Kumari brought a suit for setting aside the sale. That suit was filed after the alleged service of notice under section 167 and it was ultimately compromised as between Rani Mina Kumari on the one hand and Rani Jograma and the dar-patnidar defendants on the other. The terms of the compromise are to be found in a petition (exhibit 5) which was filed on the 6th April, 1918, on behalf of the above parties. In this petition it was stated that the parties had agreed that the sale of the patni be set aside and Rani Mina Kumari had agreed that she would execute a sale deed in respect of her patni interest in three items of properties including Saara Basethi in favour of Rani Jograma for consideration of Rs. 10,000. There was also a provision to the following effect:—
“As Rs. 13,129-7-9 in respect of darpatni rent of the aforesaid mahals and besides this the decretal dues are due by Kumar Kalikanand Singh to this plaintiff and for which pressing demands are being made by this plaintiff and which Kumar Kalikanand Singh cannot repay by any means other than by taking loan, at present therefore Kumar Kalikanand Singh having executed hadnote for Rs. 10,000 in favour of Rani Jograma, requested that Rs. 10,000 the sale money aforesaid may be set off against Rs. 13,129-7-9 the darpatni rent due to the plaintiff. Therefore in accordance with the consent of Rani Jograma aforesaid, Kumar Kalikanand Singh and others, the defendants dar-patnidars having withdrawn the said amount of Rs. 10,000 from the Collectorate shall get it set off again Rs. 13,129-7-9 the darpatni rent of the mahals Saara Basethi, Jhuni Balua and Mirzapur Khopariya, original with dependencies for the years 1324 and 1325 by this plaintiff and this plaintiff shall grant receipt thereof to Kumar Kalikanand Singh and others”.
Further paragraph 5 of this petition proceeds as follows:—
“That Kumar Kalikanand Singh and others have filed a Misc. Appeal no. 161 of 1917 in the Hon'ble High Court of Judicature at Patna being aggrieved at the orders passed by this Court against Rani Mina Kumari and others for setting aside the sale of the patni mahal lot Mirzapur Khopariya, Saara Basethi and Jhuni Balua. That appeal is pending decision. Kumar Kalikanand Singh and others shall withdraw the aforesaid appeal within three months, i.e, after the execution of the patni sale deed mentioned in paragraph no. 2 of this petition and the parties shall bear their own costs incurred in the previous suit aforesaid”.
The effect of this compromise was that Rani Mina Kumari sold her patni interest in certain villages including the villages which were the subject of dar-patni to the mother of the dar-patnidars. There was no reference in the compromise petition to the alleged service of notice under section 167 upon the Kumars of Srinagar nor was it stated that their dar-patni interest had come to an end. On the other hand, there were provisions for realising certain arrears of rent from them and in fact they continued to remain in possession as before even after the alleged service of the notice under section 167 of the Bengal Tenancy Act. It was contended on behalf of the plaintiffs that this compromise petition virtually amounted to the recognition of the subsistence of the dar-patni interest by Rani Mina Kumari after the service of the notice and therefore the service of the notice had no effect upon the dar-patni. Reference, however, must be made to a deed of sale which was executed on the 20th May, 1919, in pursuance of the compromise by Maharaja Bahadur Singh (son of Rani Mina Kumari) in favour of Rani Jograma. Maharaj Bahadur Singh states in this deed that Rani Mina Kumari, his mother, was his benamidar and the deed also recites among other facts that the dar-patni of Kumar Kalikanand Singh and others had been annulled and a notice under section 167 had been issued and duly served upon the darpatnidars. If the sale deed is read along with the compromise petition, then it goes to the root of the argument that Rani Mina Kumari had recognised the existence of the dar-patni tenure even after the service of notice under section 167. It is, however, contended on behalf of the plaintiffs that the statement made by Maharaj Bahadur in the sale deed cannot be used as evidence as none of the parties to the deed has been examined in this case and that in any event it is a dishonest statement which was made with the object of destroying the rights which the plaintiffs had acquired under their mortgage decree and restoring the dar-patni property in which the dar-patnidars had lost their interest to them through their mother Rani Jograma.
To understand the true situation it is necessary to recall that Rani Mina Kumari had applied for the service of the notice under section 167 of the Bengal Tenancy Act in March 1917; but before that date her patni interest had been sold and purchased by Rani Jograma in a sale held under the Patni Regulation for arrears of rent. In the compromise petition to which she was a party it was stated that the arrears for which the sale had taken place were in fact due from her and so it cannot be denied that it was a sale for genuine arrears of rent. Now, if she had ceased to be a patnidar as a result of the sale, she had no locus standi to apply for a notice under section 167 and if the sale in favour of Jograma had stood, the proceeding under section 167 would have been wholly in fructuous. The question as to whether the sale was a good one or not was never decided by the Court, but even on the terms of the compromise when they are properly analysed and understood the sale was virtually allowed to stand in respect of some of the patni villages and it is a fact that in the petition of compromise nothing was stated to suggest that the dar-patni tenure had ceased to exist. On the other hand paragraph 2 of the petition after referring to the Saara. Basethi dar-patni states
“the dar-patnidars whereof are Kumar Kalikanand Singh and others”.
Again paragraph 3 contains provisions for the realisation of rent for 1324 and 1325 from the dar-patnidars. These statements do suggest that Mina Kumari was dealing with the dar-patnidars as if their tenure still subsisted and in any event none of the parties seem to have attached any importance to the proceeding for the annulment of the dar-patni because substantially the same property was going back to the family of the dar-patnidars. The appellants also seem to have acted for some time as if the dar-patni tenure was still subsisting. In December 1916 defendant no. 1 (father of defendants 2 to 5) brought a mortgage suit to enforce a mortgage bond held by him against ‘the dar-patnidars and after having obtained a preliminary mortgage decree on 21st February, 1918, (after the service of section 167 notices) he got the dar-patni interest sold but afterwards did not apply for the confirmation of sale. It was only on the 20th May, 1919, when the sale deed was executed by the son of Rani Mina Kumari in favour of Rani Jograma that it was alleged for the first time that the dar-patni tenure had been annulled. The dar-patnidars were not in the least affected by the statement because their interest in the darpatni tenure having already been purchased by the plaintiffs it was of greatest advantage to the family, if the patni right in those very villages were acquired by their mother free from all encumbrances and under-tenures. The Kumars of Srinagar had owed the plaintiffs a very large sum of money amounting to over six lakhs of rupees and the latter had obtained a mortgage decree against the dar-patni property and certain other properties for their dues. The result of the arrangement which was entered into between Rani Mina Kumari and Rani Jograma was that the whole of the plaintiffs' encumbrance was wiped out and Rani Jograma, the mother of the Kumars, got a superior interest (patni interest) in the very property. Such a transaction, to say the least, does not appear at the first sight to be above suspicion and I am on the whole inclined to agree with the learned Subordinate Judge that both Rani Mina Kumari and the defendants had treated the dar-patni tenure as subsisting notwithstanding the proceedings under section 167 of the Bengal Tenancy Act. But in any event whether that view be correct or not the plaintiffs are entitled to succeed in this litigation on the ground that the notices under section 167 were not served in accordance with law on the dar-patnidars.
The last argument which was but forward on behalf of the appellants was that inasmuch as the Patni Regulation entitled them to take possession of the property free from all under-tenures they could not, now that they were in possession of the disputed property, be dispossessed at the instance of the plaintiffs merely on the ground that they had acquired possession without observing certain rules of procedure. The contention amounts to this that if the appellants had not been in possession of the property and had sued as plaintiffs they might have been defeated on the ground that they had not followed the proper procedure laid down in section 167; but the position must be different when they are defendants in the suit and found to be in possession, because they were entitled to possession and they have got possession and they cannot be ejected at the instance of a person whose interest in the property was liable to be extinguished upon a sale of the superior tenure for arrears of rent. In my opinion this argument has already been answered. A dar-patni interest is an interest recognised by law and cannot be held to have come to an end until and unless it was legally terminated. I have held that it has not been legally terminated in this case and therefore it is an interest which still subsists and the plaintiffs are entitled to recover possession thereof.
As no other points were raised in this appeal I must hold that the plaintiffs' suit has been rightly decreed by the Subordinate Judge and I would accordingly dismiss the appeal with costs.
Manohar Lall, J.:— I entirely agree with the reasons and the conclusions in the judgment of my Lord the Chief Justice and think it unnecessary to express the same views in words of my own.
Chatterji, J.:— The substantial question for consideration in this appeal is whether, when a patni tenure is sold in execution of a decree for arrears of rent under the provisions of the Bihar Tenancy Act, the sale has the effect of ipso facto annulling a subordinate dar-patni tenure by reason of the provisions of the Patni Regulation VIII of 1819, or the dar-patni requires to be annulled in accordance with the provisions of section 167 of the Bihar Tenancy Act.
The plaintiffs in this case claim title to the dar-patni tenure, which is the subject matter of dispute, by virtue of a purchase made on the 23rd April, 1931, in execution of a mortgage decree of their own. The defendants who are the zamindars had purchased the patni tenure, to which the disputed dar-patni appertains, on the 4th June, 1925, in execution of a decree for arrears of its rent against the patnidar, and they claim that by their purchase they acquired the patni free from the dar-patni. Admittedly they did not take any steps under section 167 of the Bihar Tenancy Act for annulling the dar-patni. They, however, allege that the patni had previously been sold in 1916 and that on that occasion the purchaser annulled the dar-patni under section 167 of the Bihar Tenancy Act.
The learned Subordinate Judge decreed the claim of the plaintiffs, holding that the dar-patni, not having been annulled in accordance with the provisions of section 167 of the Bihar Tenancy Act remained unaffected by the sale of the patni tenure.
It has been argued by Dr. D.N Mitter on behalf of the defendants who are the appellants that though the sale of the patni was held in execution of a decree for arrears of rent under the Bihar Tenancy Act, the provisions of the Patni Regulation VIII of 1819 will still apply by reason of section 195(e) of the Bihar Tenancy Act which provides:
“Nothing in this Act shall affect any enactment relating to these tenues in so far as it relates to those tenures”.
The Patni Regulation VIII of 1819, as its preamble shows, is
“A Regulation to declare the validity of certain tenures, and to define the relative rights of zamindars and patni-taluqdars, also to establish a process for the sale of such taluks in satisfaction of the zamindar's demand of rent”.
Section 3 of the Regulation, by its first clause, declares that the patni tenures are permanent, heritable and transferable. Its second clause declares, in particular, that patnidars have the right of under letting, but subject to the following proviso:
“Second.—Putnee talookdars are hereby declared to possess the right of letting out the lands composing their talooks in any manner they may deem most conducive to their interest, and any engagements so entered into by such talookdars with others shall be legal and binding between the parties to the same, their heirs and assignees: provided, however, that no such engagements shall operate to the prejudice of the right of the zemindar to hold the superior tenure answerable for any arrear of his rent, in the state in which he granted it, and free of all encumbrance resulting from the act of his tenant.”
Section 8 provides that the zamindars shall be entitled to apply to the Collector for “periodical sale” of the patni tenure once on the 1st Baisakh, that is at the commencement of the year, and again on the 1st Kartick, the claim in the first case, being limited to the preceding year's rent, and in the second, to the rent for the first half of the current year (Baisakh to Asin). The section also provides how notices are to be served. Section 9 provides that all sales under the Regulation shall be held in the Collector's cutchery and also prescribes the procedure as to how the sales are to be conducted. Section 10 prescribes the “forms to be observed in selling”. Section 11 which is most important in this case provides as follows:
Tenure to be sold free of encumbrance by act of defaulter. “First.—It is hereby declared, that any talook or saleable tenure that may be disposed of at a public sale, under the rules of this Regulation, for arrears of rent due on account of it, is sold free of all encumbrances that may have accrued upon it by act of the defaulting proprietor, his representatives or assignees, unless the right of making such encumbrances shall have been expressly vested, in the bolder by a stipulation to the effect in the written engagements under which the said talook may have been held.
No transfer by sale, gift, or otherwise; no mortgage or other limited assignment, shall be permitted to bar the indefeasible right of the zamindar to hold the tenure of his creation answerable in the state in which he created it, for the rent, which is in fact his reserved property in the tenure, except the transfer or assignment should have been made with a condition to that effect, under express authority obtained from such zamindar.
No under lease to stand after sale. Second.— In like manner, on sale of a talook for arrears, all leases originating with the holder of the former tenure, if creative of a middle interest between the resident cultivators and the late proprietor, must be considered to be cancelled, except the authority to grant them should have been specially transferred; the possessors of such interest must consequently lose the right to hold possession of the land, and to collect the rents of the ryots; this having been enjoyed merely in consequence of the defaulter's assignment of a certain portion of his own interest, the whole of which was liable for the rent.
Exception in favour of bona fide engagements ryots. Third.— Provided nevertheless, that nothing herein contained shall be construed to entitle the purchaser of a talook or other saleable tenure intermediate between the zamindar and actual cultivators, to eject a khoodkasht ryot, or resident and hereditary cultivators, nor to cancel bona fide engagements made with such tenants by the late incumbent or his representative, except it he proved in a regular suit, to be brought by such purchaser, for the adjustment of his rent, that a higher rate would have been demandable at the time such engagements were contracted by his predecessor.”
Section 12 runs as follows:
Above rules to takes effect retrospectively. “The rules of the preceding section being declaratory of the principle to be observed on all occasions wherein saleable tenures are made responsible for the zamindar's reserved tent spill equally apply to the case of talooks heretofore sold, as to those that may be sold henceforward, if the sale shall have been fair, and the process observed in conducting it shall have been that recognized and in use in the district at the time of selling.
Proviso. Nothing, however, herein contained shall operate to the prejudice of any agreement, express or implied, now subsisting between the purchaser, of a talook and the lessees of his predecessor.
But not to apply to private transfers. Neither shall the rule for the fall of under-tenures be considered to apply to any private transfer by a talookdar in his own interest, nor to a public sale in execution of a decree, nor to the case of a relinquishment by the talookdar in favour of the zemindar, nor to any act originating with the former holder, other than default as aforesaid: all such operations involve only a transfer of the tenure in the state in which it may be held at the time, and the new incumbent succeeds to no more than the reserved rights of the former tenant, such as they may be, and is of course subject to any restriction put upon the tenure by his act.”
Section 13 provides how under-tenants may stay sale, that is, by depositing the amount of rent due. Section 14 provides that a suit will lie to obtain a reversal of the sale, that may have taken place,
“upon establishing a sufficient plea”.
Section 15 provides for delivery of possession to the purchaser. The noticeable part of this section is the second clause which provides that if the purchaser, when he proceeds to take possession, is resisted by
“the late incumbent himself, or the holder of tenures or assignments derived from the late incumbent, and intermediate between him and the actual cultivators”
He will be at liberty to apply immediately to the Civil Court for the aid of the public officers in obtaining possession of his just rights; a proclamation shall then issue under the seal of; the Court and signature of the Judge, declaring that the purchaser having
“acquired the entire rights and privileges attaching to the tenure of the late taluqdar in the state in which it, was originally derived by him from the zamindar, he alone will be recognized as entitled to make the zamindari collections in the mufassal, and no payments made to any other individual will, on any account, be credited to the raiyats or others in any suit for rent or on any other occasion whatever when the same may be pleaded.”
Section 17 which is the last section of the Regulation prescribes rules for the disposal of the sale proceeds. In the third clause of this section it is provided that the zamindar's demand to be satisfied out of the sale proceeds shall not include his
“former balances beyond those of the current year (or of that immediately expired, if the sale be at the commencement of the following year)”
and that
“Such antecedent balances, if the zamindar shall have omitted to avail himself of the process within his reach for having them satisfied at the time, will have become, in fact, mere personal debts of the individual taluqdar and must be recovered in the same way as other debts by a regular suit in the Court.”
It will thus appear that the Patni Regulation is a self-contained enactment, as observed by their Lordships of the Privy Council in Forbes v. Bahadur Singh. It is also apparent that when a patni tenure is sold under the rules of this Regulation, the purchaser acquires the patni free from all encumbrances and under-tenures created by the defaulting patnidar, without having to take any further steps to annul them. In other words, the sale under the Regulation has the effect of ipso facto annulling all encumbrances or under-tenures. But in order that this consequence may follow, the sale must be held under the rules of this Regulation. This is clear from the first paragraph of the first clause of section 11 which expressly refers to
“a public sale under the rules of this Regulation”.
Dr. Mitter's contention, however, is that the second paragraph of the first clause as well as the second clause of section 11 are of general application, irrespective of whether the sale of the patni tenure is held under the rules of the Regulation or under the provisions of the Bihar Tenancy Act. This contention, to my mind, is untenable. The second paragraph of the first clause must not be taken out of the context, but must be read as part of the clause in which it occurs. So also the second clause must be read together with the first as parts of the same section. The words
“In like manner, on sale of a taluq for arrears”
in the second clause, must be understood, with reference to the context, to mean
“similarly, when a taluq is disposed of at a public sale, under the rules of this Regulation, for arrears of rent due on account of it”.
In construing a particular provision of a statute, to take it out of the context is opposed to the well-recognised canon of construction of statutes…
It has been suggested by Dr. Mitter that the word “encumbrances” in the first paragraph of the first clause as well as the expression” other, limited assignment “in the second paragraph of the same clause of section 11 are sufficient to include under lease, and therefore, the second clause would be quite unnecessary, if it were meant to apply only to a sale under the rules of the Regulation. But strictly speaking, an under-lease is not an encumbrance. It may be so regarded under the Bihar Tenancy Act for the purposes of Chapter XIII (formerly Chapter XIV) of the Act (see section 161). In Turner Morrison v. Monmohan Chaudhury their Lordships of the Privy Council pointed out that section 11 of the Patni Regulation makes a differentiation between “under-tenure” and “encumbrance Nor does under lease” come within the expression “other limited assignment” because assignment and lease are two quite distinct modes of transfer. But assuming that “other limited assignment” does include under-lease, it by no means follows that the second clause of section 11 would be redundant. The patnidars' right of under letting being specifically recognised in section 3, the legislature may have considered it necessary to make a separate specific provision, as in the second clause of section 11, for the cancellation of under-lease on the sale of the patni tenured it will be noticed that the second paragraph of the first clause of the section includes “mortgage”, and it might as well be said that it was redundant because it was included within the word encumbrance “in the first paragraph.
Great stress has also been laid on the proviso to the second clause of section 3 of the Regulation. No doubt, it declares that the zamindar has the right to hold the patni tenure answerable for any arrear of his rent, in the state in which he granted it, and that such right will not be in any way affected by any under-tenure that may have been created by the patnidar. But it does not provide how this right of the zamindar is to be exercised. If the zamindar wants to take the benefit of the provisions of section 11 of the Regulation he must bring the patni tenure to sale under the rules of the Regulation. But if he chooses to seek his remedy under the Bihar Tenancy Act, he must enforce his right in the manner provided therein. Under section 159 of the Bihar Tenancy Act the purchaser of a tenure in execution of a decree for arrears due in respect thereof has power to annul all encumbrances, but
“the power to annul shall be exercisable only in manner by this Chapter directed”.
Section 167 prescribes the manner in which an encumbrance is to be annulled.
section 195(e) of the Bihar Tenancy Act, in my opinion, is of no avail to the appellants. Broadly speaking, the effect of this section is that the Bihar Tenancy Act does not exclude the operation of the Patni Regulation. In other words, notwithstanding the Bihar Tenancy Act, it is open to the zamindar to proceed under the Regulation. This does not mean that where proceedings have been taken under the Bihar Tenancy Act, the provisions of the Patni Regulation may still be applied. If, however, there is any specific provision of the Regulation, it will prevail, notwithstanding anything in the Bihar Tenancy Act. Now, the only specific provision in the Patni Regulation for annulment of encumbrance or under-tenure is to be found in section 11. But, as I have already shown, that section by its terms applies only to a sale held under the rules of the Regulation. Though the second paragraph of the first clause of that section defines the general right of the zamindar, it cannot, if taken out of the context, be regarded as a specific provision declaring that the purchaser of a patni tenure at a public sale, held otherwise than under the rules of the Regulation, acquires the tenure free from the interests created by the former patnidar. This paragraph declares the right, but does not prescribe the remedy. This right is also recognised in the Bihar Tenancy Act itself particularly so far as mortgage or other limited assignment is concerned. In the first place, section 65 of the Act declares that the rent shall be a first charge. In the second place, section 159 of the Act provides that the purchaser of a tenure in execution of a decree for arrears of its rent has power to annul “encumbrances”, and the term “encumbrance”, as defined in section 161 of the Act, includes mortgage or other limited assignment. How an encumbrance is to be annulled is, however, a matter of procedure which is not affected by the second paragraph of the first clause of section 11 of the Regulation, because it is silent about the procedure. This paragraph, therefore, cannot override the provisions of the Bihar Tenancy Act regarding annulment of encumbrances. Again, if this paragraph were to be considered, apart from the context in which it occurs, the result would be inconsistent, with the provision of section 17 of the Regulation which says that “antecedent balances”, that is to say, arrears of rent
“beyond, those of the current year (or of that immediately expired, if the sale be at the commencement of the following year)”
will be treated as it “mere personal debts of the individual taluqdar”, recoverable in the same way as other debts by a regular suit in the Court. What, then becomes of “the indefeasible right of the zamindar” mentioned in the said paragraph, with regard to such “antecedent balances”?
It appears from section 12 of the Regulation that the rules of the preceding section are.
“declaratory of the principle to be observed on all occasions wherein saleable ??? are made responsible for the zamindar's reserved rent”.
This statement, at the first sight, seems to suggest that the principle of section 11 is to be applied to all cases of sales, whether held under the rules of the Regulation or not. But the object of section 12, which is expressed in clear terms, is merely to extend the operation of the rules of the preceding section to past sales, that is, sales held before the passing of the Patni Regulation VIII of 1819. Therefore, the above statement in section 12 cannot be said to have the effect of extending the operation of the rules of the preceding section to future sales, held otherwise than under the rules of the Regulation.
Here I shall deal with a contention which centres round the words “a public sale in execution of a decree” which occur in the third paragraph of section 12 of the Regulation. The learned Subordinate Judge has held that “decree” here includes a rent decree. Dr. Mi tier's contention is that with reference to the context, “decree” here means a money decree. Upon a careful perusal of the whole of the third paragraph, particularly of the concluding portion beginning with the words “all such operations involve”, it appears that the paragraph refers to transfers by which the transferee, acquires merely the right, title and interest of the former tenant. A sale of a tenure in execution of a rent decree under the Bihar Tenancy Act passes the tenure itself and not merely the right, title and interest of the judgment-debtor. It, therefore follows that the words “a public sale in execution of a decree” do not include a sale in execution of a rent decree under the Bihar Tenancy Act. It may be said that if the word “decree” were intended to exclude a rent decree, this might have been made clear by adding such words as “other than a decree for arrears of rent” after the word “decree”. But it must be remembered that the Patni Regulation was passed in 1819 when there was presumably no provision of law corresponding to section 1583 of the Bihar Tenancy Act.
In support of his main contention, Dr. Mitter has relied on the decisions in Raja P.C Lal Chaudhury v. Gulzar Ali. Durlav Chandra Chowdhuri v. Jamiruddin Ahmad Chowdhuri, Srimati Krishna Promoda Dassi v. Dwarka Nath Sen, Krista Das Laha v. Jotindra Nath Basu and Brindaban Chunder Sarkar Chowdhry v. Brindabun Chunder Dey Chowdhry. In the Patna case, decided by Courtney Terrell, C.J and Kulwant Sahay, J., it was held that the Bengal Tenancy Act does not in view of the provision of section 195(e), affect the provisions of the Patni Regulation and that, therefore, the mere fact that the landlord took proceedings for the annulment of the dar-patni tenure under section 167 of the Bengal Tenancy Act, whether successful or unsuccessful does not affect the consequences of the sale of the patni tenure enacted by the Patni Regulation. The is case is directly in point and fully supports the contention if Dr. Mitter. But it is because of this decision that the appeal has been referred to a Full Bench. From the judgment of Courtney Terrell, C.J with whom Kulwant Sahay, J., agreed, it appears that he relied on the second clause of section 11 of the Regulation. But with the greatest respect, I fail to see how this clause of the Regulation can be applied to a sale under the Bengal Tenancy Act. The learned Chief Justice also relied on the case of Durlav Chandra Chowdhuri v. Jamiruddin Ahmad Choudhuri and Srimati Krishna Promoda Dassi v. Dwarka Nath Sen. I shall presently deal with these cases.
In Durlav Choudhuri's case it was held that the Bengal Tenancy Act does not in view of the provision of section 195(e) affect the rights of patnidars under the Patni Regulation and that, therefore, the provisions of the Patni Regulation are applicable to a case arising from a sale under the Bengal Tenancy Act. In that particular case the provision of the second paragraph of the first clause of section 11 was held applicable. The learned Judges with reference to that clause said “The first paragraph defines the right of the zamindar as against the transferee or sub-lessee of the patnidar in case the sale of patni is held under the Regulation. The second paragraph states the general right of the zamindar as against the transferee or the sub-lessee in all cases; otherwise this sub-clause would appear redundant. With all respect, I am unable to agree with this view. As I have already stated, the second paragraph cannot be considered apart from the context. To adopt the reasoning of the learned Judges, it may be equally said that the first paragraph would appear redundant, because the second would cover all cases.
The case of Srimati Krishna Promoda Dassi v. Dwarka Nath Sen relates to a sale held under the rules of the Patni Regulation; and is therefore, of no assistance to the appellants.
In Krista Das Laha v. Jotindra Nath Basu the suit was brought by the mortgagees of a patni tenure to enforce their mortgage against the mortgagor and also the landlord who had, subsequent to the mortgage, purchased, the tenure in execution of the decree for arrears of rent. The suit was resisted by the landlord, but it is not clear from the report what his defence exactly was. The Courts below decreed the suit, holding that the mortgagees had a protected interest under section 160 clause (g) of the Bengal Tenancy Act. But the High Court held otherwise, relying mainly on the terms of the kabuliat by which the patni tenure was created and alternatively on the provision of section 195(e) of the Bengal Tenancy Act. This alternative ground was stated by the learned Judges in these words: “Even if the recitals could be regarded as an express authority within the meaning of section 160 clause (g) of the Bengal Tenancy Act, the effect of that section would certainly be subject to the saving provisions of clause (e) of section 195 of the same Act.” I confess this reasoning does not seem to me clear. Having held that the mortgage was not a protected interest, the learned Judges then proceeded to consider whether it could be enforced against the landlord. They considered that the mortgage was subject to the conditions imposed by section 11 (first clause, second paragraph) of the Patni Regulation, and held that as the mortgagees “had allowed the property to be sold in the exercise of the indefeasible right of the landlord for recovery of the rent due on the tenure”, they had no legal right to ask for a decree for sale of the tenure which had passed into the hands of the landlord and be thus released from the burden of the arrears of rent. With all respect, I must observe that the learned Judges, without giving any reason, rather assumed that section 11 (first clause, second paragraph) of the Regulation would apply to the case so as to override the provisions of the Bengal Tenancy Act regarding annulment of encumbrances.
In the case of Brindaban Chunder Sarkar Chowdhry v. Brindaban Chunder Dey Chowdhry their Lordships of the Privy Council had to consider the effect of a sale of a patni taluq held under the provisions of Act X of 1859 (which was subsequently replaced by the Bengal Tenancy Act, 1885). The decision turned on the following provision in section 105 of Act X of 1859:
“and the tenure may thereupon be brought to sale in execution of the decree, according to the rules for the sale of under-tenures for the recovery of arrears of rent due in respect thereof contained in any law for the time being in force”.
Upon the construction of the words “according to the rules for the sale of under-tenures”, their Lordships held that “the effect of Regulation VIII of 1819 and I of 1820, is applicable to cases of sales under decrees of rent made under this section 105”. It has been argued by Dr. Mitter that section 195(e) of the Bihar Tenancy Act corresponds to the aforesaid provision of section 105 of Act X of 1859. But I can find no similarity between these two provisions.
It may be mentioned that Regulation I of 1820 referred to by their Lordships of the Privy Council in the case just cited is also called Patni Regulation and provides for sales other than “periodical sales” referred to in section 8 of Regulation VIII of 1819. By this Regulation of 1820 the rules of sections 9, 11, 13, 15 and 17 of Regulation VIII of 1819 were extended to all sales held thereunder. It is unnecessary to consider the effect of this Regulation in the present case, because it has not been suggested that it will improve the position of the appellants in any way.
For the aforesaid reasons I am of opinion that the defendants by their purchase in execution of their rent decree did not acquire the patni tenure free from the dar-patni in question.
On the question whether on the previous occasion when the patni tenure was sold in 1916 the purchaser annulled the dar-patni by service of notice under section 167 of the Bihar Tenancy Act, I agree with my Lord the Chief Justice and have nothing to add.
I agree that the appeal should be dismissed, with costs.
K.D
Appeal dismissed.
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