N.R Chatterjea, J.:— The questions involved in these Appeals relate to the apportionment of the compensation money awarded under the Land Acquisition Act, in respect of certain lands acquired under that Act. The claimants No. 1 represent the zemindary interest, while the claimants No. 2 represent the putni and mokurari interests in the land acquired.
By a petition filed in the Court below, the rival claimants agreed that if the Court found the mokurari (referred to in the proceedings as thika) had not become merged in the putni, the claimants No. 1 will pay claimants No. 2 Rs. 4,000 out of the total compensation which they will receive in full settlement of their entire claim as mokuraridar, but if the Court found that the mokurari had become merged in the putni, the claimants No. 2 will receive from the claimants No. 1 only Rs. 1,000 in settlement of the claim.
The first question therefore is whether the mokurari merged in the putni. It appears, that on the 29th July, 1855, the zemindars granted a mokurari lease in respect of 2,000 bighas of lands at a rent of Rs. 6,000 to one Nobin Chandra Ghose who got the tenure specially registered under the provisions of Act XI of 1859. Subsequently the zemindars granted a putni lease of the entire zemindary to certain persons called the Outts and these Dutts on the 15th February, 1865 purchased the mokurari interest from Nobin Chandra Ghose, so that both the putni and the mokurari interests came into the hands of the Dutt family in 1865. The Dutts however appear to have dealt with the two interests separately. Some of them mortgaged their shares both in the putni and the mokurari to one Kristo Kishore Ghose, who puichased the shares at a sale held on the 8th April, 1868 by the Official Assignee. After the death of Kristo Kishore his widow Barnomoyee Dasi (the predecessor of the claimants No. 2) brought a suit for recovery of possession of the shares so purchased, and obtained a decree for possession of a 4 annas share of the putni and the mokurari, respectively. The putni mahal was subsequently sold under Reg. VIII of 1819 and was purchased by Barnomoyee on the 13th May, 1880. This sale of the putni however did not affect the mokurari, because as already stated, the mokurari was specially registered under the provisions of Act XI of 1859. Barnomoyee therefore became the owner of the entire putni, and of a 4 annas share of the mokurari in 1880. She purchased the remaining shares in the mokurari in 1886, so that the entire putni and the entire mokurari came into the hands of Barnomoyee in 1886 and eventually passed into the hands of the claimants No. 2 by partition with their co-sharers. It has been found that the mokurari and the putni interests have been kept separate all along. The finding has not been challenged and could not be challenged on the evidence.
Now, the question is whether under these circumstances, the mokurari merged in the putni interest, and the question will have to be considered (i) apart from the provisions of the Transfer of Property Act and (ii) with reference to the provisions of the Transfer of Property Act.
The authorities on the question, how far the doctrine of merger, apart from statutory enactment on the point, is applicable to lands in the Mofussil in this country, do not seem to be uniform. In the case of Wotmesh Chander Goqpio v. Rajnarain Roy, Sir Barnes Peacock, C.J said, “My own impression is that the doctrine of merger does not apply to lands in the Mofussil in this country. …, “I believe it is the practice in this country for zemindars to purchase and keep on foot putni talooks without the necessity of adopting the practice which is followed in England of purchasing such talooks in the name of a trustee to prevent the merger of them. If the doctrine of merger applies, a zemindar could not purchase and hold a putni tenure in Khas possession”. The other learned Judges (Loch and L.V Jackson, JJ.) concurred with the Chief Justice, but the question was not decided in that case. The same view was taken in Prosunno Nath Roy…Plaintiff; v. Jogut Chunder Pundit…Defendant., however, where the putnidar of a village which formed a portion of a zemindary purchased the zemindary right in that village, and from the date of his purchase did dot pay rent as putnidar, it was held by Markby and Prinsep, JJ. that he could not set up his title as putnidar against his co-sharer zemindars in a suit brought by them for contribution. In the later case of Jibanti Nath Khan v. Gokool Chunder Chowdkury Pigot and Baneijee, JJ. said, “no authority has been shown to us for holding that the doctrine of merger applies to such cases as this in India, that is, that a putni interest must merge in the zemindari interes, if they came into the same bands, and we do not think the we should for the first time as far as we are aware apply the doc line to such a case”. So that in 1891 it was taken to be settled law that the doctrine of merger did not apply to the case of a putni interest coming into the same hands as the zemindary interest. The case of Ptosunno Nath Ray v. Jagat Chunder Pundit does not appear to have been cited before them, but the decision in that case apparenly proceeded upon the ground that the putnidar after his purchase of the zemindary did not treat the pulni as a subsisting tenure.
In a subsequent case, Surja Narain Mandal v. Nanda Lal Sinha, the learned Judges (Geidt and Ormond, JJ.) relying upon a passage in the judgment of the Judicial Committee in Kishen Dutt Ram v. Mamtaj Ali Khan(6) held that a mokurari interest merged in a superior shikmi interest. The passage relied upon runs as follows:—“Again what followed on the purchases? Had they been made by or on behalf of a talookdar holding under an absolute title, as distinguished from a mortgage title, the tenures would as a matter of course have merged in the talook”. But the decision of the Privy Council proceeded upon the respective rights of the mortgagor and the mortgagee with reference to accessions to mortgaged property. And apart from that, the tenures which were dealt with in that case were certain birt tenures which had been purchased by the mortgagee in possession of a talook taking advantage of his position as mortgagee, and who did not take any steps to keep them alive as distinct sub-tenures for his own benefit. In describing the nature of the tenures, their Lordships pointed out that “they were sometimes resumable, and when resumed, would fall into the parent estate”. The tenures therefore were in their nature entirely different from a pulni or a mokurari tenure which is not resumable. That the tenures were treated as different from pulni or mokurari tenures will be apparent from the following passage in which their Lordships observed:—“It may well be that when the estate mortgaged is a zemindari in Lower Bengal, out of which a putni tenure has been granted, or one within the ambit of which there is an ancient mokurari istemrati tenure, a mortgagee of the zemindari, though in possession, might purchase with his own funds and keep alive for his own benefit that putni or mokurari. In such cases the mortgagee can hardly, be said to have derived from his mortgagor any peculiar means or facilities for making the purchase, which would not be possessed by a stranger, and may therefore be hell entitled equally with a stranger, to make it for his own benefit. In such cases also the putni, if the putnidar failed to fulfil his obligations, would not be resumable by the zemindar, and the zemindari would always have been subject to the mokurari”. We do not think, we are pressed by the decision in Surja Narain Mandal's case, and that for several reasons, first, because the tenures to which the observations of the Privy Council were applicable were in their nature wholly different from a mokutari tenure, secondly, the mokurari does not appear to have been kept alive as a distinct sub-tenure, and, lastly, the decision might have been based solely, and was in fact ultimately based upon the ground that the mokurari interest was an accession to the mortgaged property under sec. 70 of the Transfer of Property Act, and apart from any question of merger. Surja Narain Mandal's case Was followed in the recent case of Ulfat Hossain v. Gayani Dass, by Stephen and Vincent, JJ. and the same observations (except the last) apply to that case also. In the present case the mokurari has all along been treated as a distinct sub-tenure, and we are accordingly of opinion that apart from, the provisions of the Transfer of Property Act there was no merger.
The next question is whether the provisions of sec. III, cl. (d) of the Transfer of Property Act are applicable to the present case.
It has been contended on behalf of the Respondents that sec. III, cl. (d) is inapplicable, because Barnomoyee Dasi acquired a 4 annas share of the mokurari before the passing of the Transfer of Property Act, and the remaining 12 annas share after the passing of the Act, and that the entire mokurari therefore did not vest in her at the same time. We are of opinion that there is no force in this contention. A person may acquire the superior and the subordinate interests piecemeal at different times, but if ultimately the entire interests of the lessor and the lessee are vested in the same person at any point of time, we think there is a merger of the two interests at that particular point of time, in any case to which the provisions of sec. III cl. (d) are applicable. We do not agree with the Court below in holding that the mokurari lease was a lease for agricultural purposes within the meaning of sec. 117 of the Transfer of Property Act. A putni lease was held in the case of Promotho Nath Mitter v. Kali Prosonno Chowdhury not to be a lease for agricultural purposes. The mokurari in the present case is described as a talook, and was registered as a talook under Act XI of 1859, and having regard to the evidence and circumstances bearing on the point we are of opinion that it was not a lease for agricultural purposes. But the mokurari was created before the passing of the Transfer of Property Act, and the question therefore arises, whether the provisions of sec. 2, cl. (c) prevent the operation of sec. 111, cl. (d) of that Act. Sec. 2, cl. (c) enacts “nothing herein contained shall be deemed to affect any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.”
In the case of Promotho Nath Mitter v. Kali Prosonno Chowdkury, the putni interest was created after the passing of the Transfer of Property Act, and it was held by Maclean, C.J and Baneijee, J. that the putni interest was determined on a purchase of the same by the zemindar even at a sale held in execution of a decree. With reference to the case of Jibanti Nath Khan v. Gokool Chunder Chowdhury where it was held that there was no merger of the putni in the zemindari, Banerjee, J. observed that the case was decided without any reference to the Transfer of Property Act, and was a case to which the provisions of the Transfer of Property Act were inapplicable by reason of cl. (c) of sec. 2 of that Act, the putni lease in that case having been granted, and the putni having been created before the Transfer of Property Act came into operation.
A contrary view, however, has been taken by Stephen and Vincent, JJ. in the case of Ulfat Hossain v. Gayani Dass. The learned Judges were of opinion that sec. 2, cl. (c) did not prevent the operation of sec. III, cl. (d) of the Transfer of Property Act, although the mokurari was created before the Transfer of Property Act came into operation.
The learned Judges observed that were it not for paragraph (d) of sec. 2, they should be inclined to hold that the section only saved the effect of the repeals that it enacts in the cases specified, and that the word ‘herein’ meant ‘in this section’ and not ‘in this Act,’ but did not decide the point. We do not agree with this view of the section, but it is unnecessary to discuss the matter as there was no decision upon the point in that case. The learned Judges then observed as follows:—“The right or liability which the Respondent desires to set up is the right of the original mokuraridar Walzuddin to hold his mokurari unaffected by sec. III(d) of the Act, if the mokurari and the parent estate both came into his hands, and this right, he contends, must be passed on to Rai Radha Kissen the purchaser of the mokurari. This is, in our opinion, an incorrect view. The right in this case to which cl. (e) must apply, if it applies at all, is the right of Radha Kissen to the same effect, and it was constituted by his legal relation to the Defendants in the mortgage suit at the time of the mortgage sale which took place after the passing of the Transfer of Property Act. We hold therefore that there is nothing to prevent sec. III(d) of the Act from applying and that a merger has taken place.”
With great respect for the learned Judges we are unable to agree in this view. A legal relation might have been constituted at the time of the mortgage sale which took place after the passing of the Transfer of Property Act, but it cannot be denied that a legal relation was constituted when the mokurari was created before the passing of the Act. And if the fight of the mokuraridar was to hold the mokurari unaffected by sec. III, cl. (d) of the Act, on the mokurari and the parent estate coming into his hands (as we think it was), such right by reason of the express provisions of sec. 2, cl. (c) could not be affected by any of the provisions of the Act, and the subsequent legal relation constituted after the passing of the Act could not affect the right arising out of the legal relation constituted before the Act. If the view taken in Alfat Hossain's case be correct, every lease created before the passing of the Act would be governed by the provisions of the Act, irrespective of the rights arising out of the legal relation constituted before the Act. We are unable to construe sec. 2, cl. (c) in this manner, and are of opinion that the view, taken by Banerjee, J. in the case of Promotho Nath Mitter v. Kali Prosonno Chowdhury of the effect of the Act upon a lease created before the passing of the Act, is correct. Had the decision in Ulfat Hossain's case been based upon the provisions of the Transfer of Property Act, it might have been necessary to refer the matter to a Full Bench, but the learne Judges in that case held that there was a merger apart from the provisions of the Transfer of Property Act. It is unnecessary therefore to refer the question to a Full Bench. We are of opinion that there was no merger of the mokurari in the putni apart from the provisions of the Transfer of Property Act, because the mokurari was kept alive as a separate sub-tenure from the putni, and the provisions of the Act did not apply, as the mokurari was created before the passing of the Act.
It is unnecessary to consider whether, having regard to the fact that the mokurari was treated as a subsisting sub-tenure, there could be a merger even if the provisions of the Act were applicable.
The next question is whether the claimants No. 1 are entitled to any portion of the compensation awarded for the trees. The trees are pan of the putni talook and we are of opinion that the Court below is right in holding that the claimants No. 1 are not entitled to any portion of the compensation awarded for the trees.
We also agree with the Court below in holding that the claimants No. 1 are not entitled to share in the amounts awarded to the tenants in cases No. 810, 815 and 817, to which claimants No. 2 became entitled by purchasing the rights of the tenants, after the award had been made in their favour. The amounts were awarded to the tenants, and the claimants No. 2 are entitled to the same not as putnidars, but by virtue of their purchase from the tenants.
The last question is what is the amount of the remission which the claimants No. 2 are entitled to get in the putni rent on account of the lands acquired. The Court below has held that they are entitled to get a proportionate abatement on the principles laid down in the cases referred to in its judgment. But these principles cannot apply where, as in the present case, there is an agreement between the zemindar and the putnidar on the point. The agreement contained in the putni kabuliat as translated in the paper-book runs as follows:—“Neither I nor my successors will ever get any remission in rent on the score if inundation, drought, fallow, failure of crops, construction of culverts and embankments, and diluvion of lands by rivers, etc., but if you obtain from Government any remission in revenue on account of lands acquired by it for construction of culverts, embankments and roads, a proportionate amount of remission will be obtained by me from you in respect of the rent payable to you on account of this putni.”
The words “a proportionate” do not occur in the original, and the concluding portion literally translated runs as follows:—“but if you obtain remission (lit the amount of remission or the extent of the remission which may be obtained by you) in the sudder jama from the Government in respect of lands taken up for culverts, embankments or roads, I also shall get from you reduction of jama on account of all the said remissions in the jama of this putni”. The language is ambiguous, but it appeals to us upon a proper construction of the agreement as a whole that the putrdar is to get the same amount of remission which the zemindar would get in that Government revenue, and this is the construction which the parties themselves placed upon the agreement in a previous suit. It appears that in a suit for rent brought by the zemindars against Barnomoyee Dasi (the predecessor of claimants No. 2) so far back as 1894, she claimed remission in the putni rent for the same amount which the zemindar was entitled to get remission of in the Government revenue on account of certain lands acquired for the construction of the Budge-Budge Railway in 1888, and the Court granted remission accordingly. The lands in the present case were not acquired for construction of “culverts, embankments or roads,” but we agree with the learned Judge in holding that these words are merely illustrative and not exhaustive. We are accordingly of opinion that the claimants No. 2 are entitled to an abatement in the putni rent only for Rs. 310, i.e, the amount which the zemindar will get abatement of in the Government revenue. To this extent the decree of the Court below will be varied, and in all other respects the appeals will be dismissed. In the circumstances, we make no order as to costs.