Khetra Pal Singh Roy And Others v. Kritarthamoyi Dasi And Anr. Opposite Party.

Rampini and Pratt, JJ.:— This is a rule calling upon the other side to show cause why an order of the Subordinate Judge of Hughly, dated 22nd August 1901, should not be set aside. The order is to this effect: “I am of opinion chat this application for claim is not maintainable under sec. 170 of the Bengal Tenancy Act, as the property to which the claim relates is admittedly a tenure attached by the landlord decree-holder for its own arrears.”

The applicant contends that this order should be set aside on the authority of the case of Hem Chunder Bhtmjo v. Mon Mohini Dassi. The landlord decree-holder in this case, it is alleged and not denied, parted with his interest in the property before applying for execution of his decree for arrears of rent, and therefore, under the above cited ruling, when executing his decree he was not executing it as a landlord—he had no first charge for the arrears of rent decreed to him and the provisions of sec. 170 of the Bengal Tenancy Act did not apply, and did not bar a claim to the tenure as held by the Subordinate Judge.

The ruling cited on behalf of the applicant does support this contention. But in the later case of Chhatraput Singh v. Gopi Chand Bothra(2) a contrary view has been expressed. At p. 757 of the report in this case Mr. Justice Ameer Ali, who was one of the Judges who decided the case of Hem Chunder Bhunjo v. Mon Mohini Dissi, says:— “There remains then only one question to consider, namely, whether, in view of the fact that the putni mehal had been sold in execution of a money decree and purchased by one Bibi Jarao Kumari, the applicants are entitled to proceed against the tenures for the satisfaction of their rent decrees. As the learned Judge points out certain rents had become due from the Appellant whilst he held the tenure. After Dhanput transferred the property to Mussummat Bhagwanbutl Chowdhrani he obtained decrees for these rents. The sale of these tenures in execution of money decrees could not release the tenures from the lien which had already attached to them.” Again at p. 760 of the same report, Mr. Justice Macpherson says:— “Dhanput Singh, it may be observed, had parted with his interest in the land before the decrees were obtained, but it cannot on that ground be successfully contended that he could not have executed the decrees under the provisions of the Tenancy Act, by the sale of the tenures in respect of which they were obtained. The relationship of landlord and tenant existed during the period for which the rent was claimed, the rent was due to him as landlord, was decreed to him as such, and it was a charge on the tenures.”

It appears that the opinions expressed in these two cases are directly opposed to each other. In the former case it has been ruled that a landlord who has parted with his interest in the land cannot execute a decree obtained by him for arrears of rent under the provisions of the Tenancy Act against the tenure on which the rent accrued. In the latter case both of the learned Judges who decided it have held that there is no reason why he should not do so.

In these circumstances we think we must refer the question, as to which of these views is right, to a Full Bench, and in doing so we would express an opinion that the view taken by the Judges who decided the case of Ghhatraput Singh v. Gopi Ghand Bothra, is to be preferred and that this rule should accordingly be discharged.

It will be observed that the Judges who decided the case of Hem Ghunder Bhunjo v. Mon Mohini Dassi give two reasons for their decision, viz., (1) if it be held that the right to sell a tenure in execution of a decree for arrears of rent did not cease when the relation of landlord and tenant ceased, then under sec. 65 there might be two first charges for different rents, one by the previous landlord, who had lost his possession and the other by the person who succeeded him and (2) that sec. 66 does not apply to a case in which the person seeking to execute the decree is not a landlord at the time of execution.

But in our opinion the expression first charge in sec. 65 means a charge on the tenure which is to prevail against third parties having claims against it. It does not imply a charge which is absolutely first in numerical order. There may, in our opinion, very well be two or more charges on the tenure in consequence of the same or different landlords obtaining decrees for arrears of rent of a tenure, which are all first charges as against third parties and which will take rank as against each other in order of time or in such other order as may be deemed equitable. As for the second reason assigned by the learned Judges it may be quite right that a landlord who has lost possession should be debarred from ejecting a tenant from the land but it does not necessarily follow that he should lose his security for the rent, which he had when the rent accrued due simply because he has subsequently parted with or lost his interest in the property. The purchaser of the property must know when he purchases it that he takes it with its liabilities for rent previously accrued due in the same way as the purchaser of a mortgaged property buys it and knows that he does so subject to all mortgages attaching to it.

The questions we would propound for the decision of the Full Bench accordingly are:—

Firs.—Does a landlord who parts with his interest in a tenure thereby lose his first charge on the tenure for rent previously accrued due, and is he in such circumstances debarred from bringing the tenure to sale in execution of a decree for arrears of rent under the provisions of the Bengal Tenancy Act?

Second.—Has the case of Hem Chunder Bhunjo v. Mon Mohini Dassi been rightly decided?

Babu Mohendra Nath Roy in support of the rule.—In this case, the decree for rent was obtained on 27th February 1897; on the 15th August 1900 the decree-holder sold her interest in the tenure. On the 25th July 1901 she put the decree in execution. The question is whether there could be sale in execution of the decree under the provisions of the Bengal Tenancy Act. Reads sec. 65, Bengal Tenancy Act.

[Ghose, J.—In this case, the landlord obtained the decree when she was still the landlord.]

Yes.

[Rampini, J.—Do you rely on sec. 148, Bengal Tenancy Act?]

I may have to refer to it by way of analogy, but that section is inapplicable to the facts of the present case.

Reads judgment in Hem, Chunder Bhunjo v. Mon Mohini Dassi on which he says he would rely. That judgment points out the anomaly of two simultaneous first charges.

Reads from Ameer Ali, J.'s judgment in Chhatraput Singh v. Gopi Chand Bothra first; 3 paras Reads from p. 757, bottom, and points out that in that case the judgment debtor's interest and not the decree-holder's was sold.

[The Chief Justice.—How does the puinidar loose the first charge, once he has acquired it?]

By reason of a preferential charge accruing in favour of the new landlord.

[The Chief Justice—Where do you get the “preferential charge” in the statute.]

[Ghose, J.—The question of the right of the new landlord does not arise in this case.]

But it is involved in the principle which must govern the decision in this case.

Sec. 65 contemplates only one charge, Refers to Srimanta Roy v. Mahadeo Mahata(3).

[Ghose, J. points out that the facts of that case are distinguishable.]

[The Chief Justice.—The ticcadar did not obtain the decree as a landlord.]

Submits there was no real difference: Sec. 65, Bengal Tenancy Act, makes no reference to the time when the decree is obtained. It refers to the period for which the rent becomes due.

The new landlord will be without remedy if the charges are allowed rank according to priority, because after sale by the first landlord the purchaser will get the tenure free from incumbrances.

[Rampini, J., points out that the second landlord will have a lien on the balance of the purchase-money.]

That will in many cases yield only nominal compensation.

Refers to Nagendra Nath Bose v. Bhuban Mohan Chakravarti(4).

[The Chief Justice.—In that case the landlord ceased to be the landlord when he obtained the decree.]

But the rent, when it fell due, did fall due to him as landlord; and sec. 65 does not require anything more than that.

[Ghose, J., refers to sec. 170.]

Submits in answer that Ch. XIV, in which that section occurs, does not apply if the decree is not a rent-decree.

Refers to Sheikh Naimuddin v. Srimanta Ghose(5), Banerjee, J., at p. 126 approves of the decision in Hem Chunder Bhunjo v. Mon Mohini Dassi.

Babu Nil Madhub Bose for the Opposit Party was not called upon.

The following Judgments were delivered.—

Maclean, C.J:— For my own part, I think this rule ought to have been discharged and might have been discharged on a very short and simple ground and that is this. At the date of the suit and the date of the decree the Plaintiff was undoubtedly the landlord. It was, therefore, clearly a suit and a decree under the Bengal Tenancy Act and, that being so, when we look at sec. 170 of that Act, it is clear that sec. 278 of the Code of Civil Procedure does not apply. That, to my mind, is sufficient to dispose of the rule.

But, upon the questions submitted, I think the first question is a little too wide in its terms. In my opinion if, at the time when a suit is instituted and a decree is made, the Plaintiff is still the landlord, the fact that subsequently he sells his landlord's interest does not prevent him from obtaining the benefit of sec. 65 of the Act and if the decision in the case of Hem Chunder Bhunjo v. Mon Mohini Dassi is, as apparently it is, opposed to this view, then I respectfully dissent from it.

The result is that this rule must be discharged with costs including the costs of this reference. We allow five gold mohurs as costs for the two hearings.

Ghose, J.—I agree in the judgment which my Lord has delivered.

Rampini, J.—I agree. It may be that the first question which has been propounded for our decision has been couched in too wide terms. But it certainly appears to me for the reasons given in my order of reference, that the case of Hem Chunder Bhunjo v. Mon Mohini Dassi has been wrongly decided; and I dissent from it.

Sale, J. I agree it, the judgment delivered by the Chief Justice.

Pratt, J.— I agree in the judgment of my Lord the Chief Justice.

N.G

Rule discharged.