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Brosmanand Nath Deb Sircar v. Hem Chandra Mitra

Calcutta High Court

Jan 30, 1914

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The Petitioner is a usufructuary mortgagee who holds an interest of one-fourth in the relevant property; the Opposite Parties (co-sharers) are entitled to the remaining three-fourths. The Petitioner sued the tenant for rent and joined the proprietors of the three-fourths share and the mortgagor as defendants. In the plaint the Petitioner stated that the total annual rent payable to all landlords was Rs. 42 and that his share was Rs. 10-8. He alleged that the co-sharers refused to join as co-plaintiffs and declined to state whether any arrears were due to them. He therefore instituted the suit under section 148A of the Bengal Tenancy Act and sought transfer of the co-sharers to the category of co-plaintiffs if they so desired, with an undertaking to amend his claim and pay additional court-fees if they stated rent was due to them.

The co-sharers did not appear at first; the Petitioner obtained a decree in the suit. He then applied for execution under sub-section (1) of section 158B of the Bengal Tenancy Act. Notice under sub-section (2) was given to the co-sharers, who appeared and contended that the suit had not been properly framed under section 148A and that execution could not proceed under section 158B. The trial Court overruled that objection. On appeal the District Judge reversed the trial Court's decision and directed that the sale be conducted under the Code of Civil Procedure (CPC) rather than under sub-section (2) of section 158B of the Bengal Tenancy Act, on the ground that the decree was a decree for money and not capable of execution as a decree for rent under the Bengal Tenancy Act.

The Petitioner challenged the District Judge's order by invoking the revisional jurisdiction of this Court, since a second appeal was barred by section 153 of the Bengal Tenancy Act (the amount claimed was less than Rs. 100), and hence the remedy lay by way of revision under section 115 of the Code of Civil Procedure or section 15 of the Indian High Courts Act.

Legal Issues Presented

Whether the Bengal Tenancy Act (in particular sections 148A and 158B) applies so as to permit execution of the decree for rent by a usufructuary mortgagee who sued the tenant (i.e., whether a usufructuary mortgagee stands in the position of a landlord for the purposes of the Act).
Whether a usufructuary mortgagee is to be treated as a co-sharer landlord within the meaning of section 158B(1)(c) of the Bengal Tenancy Act and whether the suit as framed complied with section 148A (i.e., whether the claim constituted a suit for "rent due" to all co-sharers).
Whether execution of the decree is barred by Order 34, Rule 14 of the Code of Civil Procedure, which restricts a mortgagee who has obtained a decree for payment of money from selling the mortgaged property otherwise than by instituting a suit for sale in enforcement of the mortgage.
Whether this Court could exercise revisional jurisdiction to set aside the District Judge's order directing execution under the CPC rather than under section 158B of the Bengal Tenancy Act.

Arguments of the Parties

Petitioner's Position

The Petitioner (usufructuary mortgagee) sued under section 148A claiming what he believed to be the whole arrear due, sought transfer of co-sharers to co-plaintiffs if they desired, and offered to amend and pay additional court fees if they asserted arrears due to them.
He applied for execution under sub-section (1) of section 158B of the Bengal Tenancy Act and maintained that execution should proceed under that provision.

Opposite Party's Arguments (in support of the District Judge's order)

That the Bengal Tenancy Act does not apply because the decree was obtained by a person other than a landlord — the contention being that a usufructuary mortgagee is not in the position of a landlord vis-à-vis the tenant.
That a usufructuary mortgagee is not a co-sharer landlord within the meaning of section 158B(1)(c) because he is a mortgagee from one proprietor whereas the co-sharers are the proprietors themselves; and relatedly that the suit was not within the scope of section 148A because it did not claim the entire rent payable to all co-sharers (an argument asking that "rent due" be construed as "rent payable under the contract of tenancy" without deduction).
That execution proceedings were barred by Order 34, Rule 14 of the Civil Procedure Code (i.e., that a mortgagee who has obtained a decree for payment of money in satisfaction of a claim arising under the mortgage cannot sell the mortgaged property otherwise than by a suit for sale in enforcement of the mortgage).
That insofar as the District Judge may have erred, he acted within his appellate jurisdiction and committed, at most, an error of law which he had jurisdiction to commit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shama Charan v. Debendra Nath	Illustration that second appeal is barred under section 153 of the Bengal Tenancy Act where the amount claimed is less than Rs. 100.	Used to show that a second appeal did not lie in this case, leaving revision under section 115 CPC or section 15 Indian High Courts Act as the remedy.
Nanda Lal v. Kala Chand	Authority that plaintiffs may substantially comply with the requirements of section 148A of the Bengal Tenancy Act.	Cited to support the conclusion that the Petitioner had substantially complied with section 148A in framing the suit.
Malkarjan v. Narhan	Statement that an appellate court may commit an error of law in the exercise of its jurisdiction (used to argue that the District Judge had jurisdiction even if he erred).	Relied on by the Opposite Party to contend that the District Judge's error, if any, was within his jurisdiction; the Court considered this but concluded it did not bar revision when the appellate order had the practical effect of requiring the trial Court to exercise a jurisdiction it did not possess.
Jugodanand v. Amritalal	Authority supporting the exercise of revisional powers where an appellate order erroneously affects jurisdictional exercise by the trial court.	Cited as precedent for the proposition that an erroneous appellate direction which forces the trial Court to decline a jurisdiction it possesses (and exercise one it does not) can be corrected in revision.
Sheo Prosad v. Ramchunder	Similar authority to Jugodanand v. Amritalal on the availability of revisional interference despite an erroneous interpretation at appellate level.	Reinforced the Court's view that revisional jurisdiction could be exercised to set aside the District Judge's order.
Mathura v. Umesh	Referenced as a case in which the particular aspect (that an appellate direction might force a lower Court to exercise a jurisdiction it did not possess) was not suggested to the Court.	Noted by the Court to distinguish the present case and to support the conclusion that the present circumstances justify revisional interference.

Court's Reasoning and Analysis

The Court examined each ground on which the District Judge's order was supported and tested whether the appellate direction to execute under the Code of Civil Procedure could be sustained.

1. On whether a usufructuary mortgagee is in the position of a landlord:

The Court rejected the contention that the Bengal Tenancy Act did not apply because the decree was obtained by a person other than the landlord. It emphasized the statutory meaning of "usufructuary mortgage" (clause (d) of section 58 of the Transfer of Property Act) showing that a usufructuary mortgagee is entitled to receive the rent.
The Court noted that the definitional provisions in sections 3(3) and 3(4) of the Bengal Tenancy Act were not helpful to the Opposite Party's argument. The terms "landlord" and "tenant" in the Bengal Tenancy Act mean a person immediately under whom a tenant holds and a person who holds land under another and is liable to pay rent. On that basis the usufructuary mortgagee is a person immediately under whom a tenant holds.
The Court further relied on section 78 of the Land Registration Act, which contemplates that a usufructuary mortgagee in possession is entitled to sue for rent in his character as landlord. On these bases the Court held the first contention to fail.

2. On whether a usufructuary mortgagee is a co-sharer landlord and whether the suit complied with section 148A:

The Court held that being a co-sharer landlord does not require identical degrees of interest; the co-sharer landlords constitute the entire body of persons entitled to collect rent. The mortgagee's different degree of interest does not exclude him from that body.
The Court referred to Nanda Lal v. Kala Chand to conclude that the Plaintiff had substantially complied with the requirements of section 148A. The Court rejected the Opposite Party's proposed restrictive construction of "rent due" (i.e., that it must mean the rent payable under the contract without regard to amounts actually paid); that construction was called "entirely untenable."
The Court observed that it was never suggested that there was at the commencement of litigation an arrear due to the co-sharer landlords; the Plaintiff sued for what to his information was the whole arrear due and thus his suit constituted a suit for rent due to all co-sharers within the meaning of section 148 of the Bengal Tenancy Act. On that basis the second contention failed.

3. On the applicability of Order 34, Rule 14 CPC:

The Court analysed Rule 14 and found it inapplicable for three stated reasons drawn from the facts and nature of the decree: (a) the mortgagee had not obtained a decree for payment of money in satisfaction of a claim arising under the usufructuary mortgage; (b) the Petitioner did not seek to bring the mortgaged property itself to sale but sought to bring to sale a tenancy subordinate to the mortgagor's interest; and (c) the decree was not made for money in satisfaction of a claim arising under the mortgage.
Because of these three factual and legal points, the Court concluded that Order 34, Rule 14 did not bar the present execution proceedings.

4. On the competence of this Court to exercise revisional jurisdiction:

The Court acknowledged the Opposite Party's submission that the District Judge acted within his appellate jurisdiction and that an appellate court may commit an error of law. It considered the authority Malkarjan v. Narhan supporting that proposition.
However, the Court analysed the true effect of the District Judge's order: by directing that execution proceed under the Code of Civil Procedure rather than under section 158B, the District Judge effectively replaced the trial Court's order and compelled the trial Court to perform an act (selling the tenure under the CPC) which it had no jurisdiction to do while simultaneously denying it the jurisdiction to sell under section 158B which the trial Court did possess.
The Court held that this practical result — compelling the trial Court to exercise a jurisdiction it does not have and to refuse to exercise one it does — justified the exercise of revisional jurisdiction even if the error originated as a misinterpretation of sections 148A and 158B. The Court relied on Jugodanand v. Amritalal and Sheo Prosad v. Ramchunder for the proposition that such circumstances permit revisional interference. The Court distinguished Mathura v. Umesh as a case where the point was not raised.

On the totality of these points the Court concluded that the District Judge's order could not be sustained and that revisional interference was appropriate.

Holding and Implications

Core Ruling: Rule made absolute; the order of the District Judge is set aside and the order of the Court of first instance is restored.

Implications and immediate consequences:

The trial Court's original direction to proceed with execution under section 158B of the Bengal Tenancy Act stands restored; the District Judge's direction to execute under the Code of Civil Procedure is vacated.
The Court assessed that costs will follow the result: costs in all the Courts to be borne (i.e., costs awarded against the Opposite Parties in all Courts involved), and the hearing fee in this Court was assessed at five gold mohurs.
The opinion does not proclaim any broader novel precedent beyond applying existing authorities; the decision operates as a correction of the appellate direction in the particular factual and statutory context of the case, restoring the trial Court's jurisdiction under the Bengal Tenancy Act.

Rule made absolute.

This summary is strictly limited to, and derived from, the content of the provided opinion. No information beyond what appears in the opinion has been added.

Show all summary ...

We are invited in this Rule to set aside an order by which the Court of appeal below has directed execution of a decree for rent to proceed, not under sec. 158B of the Bengal Tenancy Act as had been ordered by the Court of first instance, but under the provisions of the Code of Civil Procedure. The circumstances under which the order in question has been made may be briefly narrated. The Petitioner is a usufructuary mortgagee from a co-sharer landlord, who is interested in the property to the extent of one-fourth. The Opposite Parties are entitled to the remaining three-fourths share. The Petitioner as usufructuary mortgagee brought a suit for rent against the tenant and joined the proprietors of the three-fourths share as also the mortgagor as parties Defendants. He stated in the plaint that the entire rent payable to air the landlords was Rs. 42 annually, and that the rent payable in his share was Rs. 10-8. He further alleged that the co-sharers refused his invitation to join as co-Plaintiffs in the suit, and had declined to inform him whether any arrears of rent were due to them, and if so, how much. He consequently instituted the suit under sec. 148A of the Bengal Tenancy Act, and prayed that the co-sharers might be transferred to the category of co-Plaintiffs, if they so desired, and that in any event if they stated that rent was due to them, the Plaintiff would amend his claim and pay additional court-fees. The co-sharers did not enter appearance, and the Plaintiff obtained a decree ???. He next applied for execution in accordance with sub-sec. (1) of sec. 158B of the Bengal Tenancy Act. Thereupon under sub-sec. (2), notice of the application for execution was given to the co-shares. They appeared and contended that the suit had not been properly framed under sec. 148A, and that the execution could not proceed under sec. 158B. The objection was overruled by the Court of first instance. Upon appeal the District Judge has reversed that decision and has directed the Court of first instance to hold the sale not under sub-sec. (2) of sec. 158B of the Bengal Tenancy Act, but in accordance with the Code of Civil Procedure on the footing that the decree obtained by the Petitioner was a decree for money and was not capable of execution as a decree for rent under the provisions of the Bengal Tenancy Act.

The propriety of this order is now challenged before us, and we are invited to interfere in the exercise of our revisional jurisdiction, inasmuch as no second appeal lies in the present case. There is no question that the case falls within sec. 47 of the Code of Civil Procedure, because the matter arises between the parties to the suit, and the question raised obviously relates to the execution of the decree. But a second appeal is barred under sec. 153 of the Bengal Tenancy Act, because the amount claimed in the suit was less than Rs. 100 [Shama Charan v. Debendra Nath(1)]. Consequently if the order of the Court below is erroneous, the only course left open to the Petitioner to obtain relief is by way of an application under either sec. 115 of the Code of Civil Procedure or sec. 15 of the Indian High Courts Act.

The order of the Court below has been sought to be supported on behalf of the Opposite Party on three grounds. It has been argued in the first place, that the Bengal Tenancy Act does not apply, because the decree was made in a suit by a person other than the landlord. It is difficult to apprecitate the force of this argument, but the contention appears to be that a usufructuary mortgagee is not in the position of a landlord; in other words, if the relationship of landlord and tenant exists between A and B, the usufructuary mortgagee of A is not in the position of a landlord in relation to B. In our opinion, this contention is wholly fallacious. The usufructuary mortgagee is entitled to receive the rent, as is clear from the definition of the expression “usufructuary mortgage,” given in cl. (d) of sec. 58 of the Transfer of Property Act. Reference has been made to cls. (3) and (4) of sec. 3 of the Bengal Tenancy Act, but they are clearly of no assistance to the Opposite Party. The term “landlord” means a person immediately under whom a tenant holds, and the term “tenant” is defined to mean a person who holds land under another person, and is or, but for a special contract, would be liable to pay rent for that land to that person. The usufructuary mortgagee is consequently a person immediately under whom a tenant holds. But it has been argued that this view cannot be supported, because a usufructuary mortgagee is a transferee of a portion only of the interest vested in the mortgagor. This clearly does not affect the question. An intermediate lessee is entitled to collect rent from the tenant—rent which but for the lease would have been payable to his landlord. On the other hand, sec. 78 of the Land Registration Act clearly contemplates that a usufructuary mortgagee in possession is entitled to sue for rent in his character as landlord. The first contention, therefore, fails.

It has been argued in the second place, that a usufructuary mortgagee is not in the position of a co-sharer landlord within the meaning of sec. 158B, sub-sec. (1), cl. (c) of the Bengal Tenancy Act, because he is the mortgagee from one of the proprietors, whereas the; co-sharers are the proprietors themselves. This argument is obviously fallacious. The co-sharer landlords are the entire body of persons who are entitled to collect rent. It is not essential that the interest of each should be of the same degree; for instance, it is conceivable that a putnidar of one-half share in the zemindary and a dar putnidar of the other half share may be jointly entitled to collect rent from tenants in actual occupation, and when they are so entitled, they clearly constitute a body of co-sharer landlords. It has been contended further that sec. 158B has no application, because the suit as framed was not within the scope of sec. 148A. We have already described the nature of the suit, and it is clear from the decision in the case of Nanda Lal v. Kala Chand(2) that the Plaintiffs substantially complied with the requirements of sec. 148A. It has been argued, however, that the suit was not brought for the entire rent due to all the co-sharers. We have been invited to construe the expression “rent due” as equivalent to “rent payable under the contract of tenancy”. The argument in substance is that to entitle a person to claim the benefit of sec. 148A he must include in the suit a claim, not for the rent actually in arrears, but the rent payable under the contract without the deduction of any amount that might have been actually paid to the landlord. This clearly is an entirely untenable contention. We may further add that it has not been suggested at any stage of present proceeding, nor was the suggestion made in the course of the original suit that at the time of the commencement of the litigation, there was an arrear of rent due to the co-sharer landlords. The Plaintiff sued for the recovery of what to his information was the whole arrear due, and that was in essence a suit for rent due to all the co-sharers, within the meaning of sec. 148 of the Bengal Tenancy Act. The second contention consequently fails.

It has been argued in the third place that the execution proceedings are barred under r. 14 of Or. 34 of the Civil Procedure Code. This contention is based obviously on a misapprehension. R. 14 provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Or. 2, r. 2. This rule is inapplicable on three grounds. In the first place, the mortgagee has not obtained a decree for the payment of money in satisfaction of a claim arising under the usufructuary mortgage. In the second place, he does not here seek to bring the mortgaged property to sale; the mortgagee seeks to bring to sale a tenancy subordinate to the interest of the mortgagor. In the third place, the decree has not been made for money in satisfaction, of a claim arising under the mortgage. Consequently the suit is not barred under Or. 34, r. 14.

It is thus plain that the order of the District Judge cannot be supported on any of the grounds suggested. The only question for consideration is as to the competency of this Court to interfere with that order. On behalf of the Opposite Patty, it has been suggested that the District Judge has acted in the exercise of his jurisdiction, as under the law an appeal did lie to him. He has, it is said, committed only an error of law, which, in the language of their Lordships of the Judicial Committee in the case of Malkarjan v. Narhan(3) he had jurisdiction to commit. This is a plausible view of the case, but upon a closer examination of the true nature of the order of the District Judge, the real position appears to be this. The order of the District Judge replaces the order of the Court of first instance. That is, in substance, the effect of the exercise of appellate jurisdiction by the Court below; if it finally disposes of the case, it makes the order which should have been passed by the Court of first instance. The result of the decision of the District Judge, consequently, is that the Court of first instance has to proceed to sell the tenure in accordance with the provisions of the Code of Civil Procedure, which it has no jurisdiction to do, and to refuse to sell the tenure in accordance with sec. 158B of the Bengal Tenancy Act, which it has jurisdiction to do. The circumstance that this result follows from an erroneous interpretation of the scope and requirements of secs. 148A and 158B of the Bengal Tenancy Act is clearly no bar to the exercise of our re visional powers: Jugodanand v. Amritalal(4), Sheo Prosad v. Ramchunder(5).

The outstanding fact remains that if the original Court proceed to carry out the direction of the lower Appellate Court, as it is bound to do, it will exercise a jurisdiction, which it does not possess and will decline a jurisdiction which it does possess, and such proceeding would obviously be liable to be set aside—an aspect of the matter which was not suggested to the Court in Mathura v. Umesh(6). We are of opinion that this is plainly a case where it is competent to this Court to set aside the order of the Court below.

The result is that this Rule is made absolute, the order of the District Judge set aside and that of the Court of first instance restored. This order will carry costs in all the Courts. We assess the hearing fee in this Court at five gold mohurs.