Mullick, J.:— This reference arises out of a suit for rent for the years 1329 and 1330 Fs.

The Munsif decreed the suit though not for the full amount claimed.

In appeal the District Judge dismissed the suit on the ground that the plaintiffs were mortgagees who should have registered their names in the registers of the Collector under section 44 of the Land Registration Act [Act VII (B.C) of 1876] and that having failed to do so they were not entitled by reason of section 78 of the Act to a decree for rent.

A second appeal against the learned District Judge's decision has been heard by a Division Bench of two Judges who, having differed, have, under clause 28 of the Letters Patent of this Court, referred the case for a decision upon the following points:

(1) Can a mortgagee, whose suit for rent has been rightly dismissed in appeal under section 78 of the Land Registration Act, 1876, at all secure a decree for the rent sued for from the Court of second appeal if he has during the pendency of the second appeal been registered under that Act?

(2) If so, can he do so in the circumstances of the present case—

(a) in regard to 1329, the rent of which was barred by limitation at the date when his name was actually registered under the Act;

(b) in regard to 1329 and 1330 when, in the circumstances of the case, the point could not arise under section 100(1) of the Code of Civil Procedure at the time when the second appeal was admitted?

(3) Should damages be allowed in the circumstances?

The material facts of the case are as follows:—

The plaintiffs brought the suits on the footing that they were thikadars and the Munsif held that as the plaintiffs were merely lessees registration of their names under the Land Registration Act was not necessary.

The District Judge, however, took a different view and, by his judgment dated the 24th June, 1925, he held that the zarpeshgi lease in this case was a mortgage and not a lease and that registration was necessary before a suit for rent could be brought.

The second appeal to the High Court was preferred on the 25th October, 1925 and subsequently on the 26th August, 1926, the plaintiffs got their names registered on the books of the Collector. The arrears claimed were for 1329 and 1330 Fs. (corresponding to 1922 and 1923) and the suits were lodged in the Court of the Munsif on the 6th October, 1923. At the time of registration a suit for the arrears of 1329 would have been barred by limitation.

It is contended by the plaintiffs that, provided their suit was within time, they were entitled to a decree subject to the condition that it could not be executed till they had complied with the provisions of the Land Registration Act.

Now, it may be considered as the settled practice of the High Court at Calcutta that an unregistered proprietor is entitled to bring a suit for recovery of rent. In other words, he has a cause of action. The Full Bench decision in Alimuddin Khan v. Hira Lal Sen is conclusive on the point and has been followed in many cases not only for territories subject to the operation of the Bengal Tenancy Act but also for territories outside the operation of that Act. These cases have been noticed in the judgment of Kulwant Sahay, J., one of the two Judges, who have made the present reference.

On principle it is difficult to see why the plaintiffs cannot bring a suit for the arrears in question. The plaintiffs have acquired by transfer all the rights of the registered proprietor, the mortgagor and they are surely entitled to the right of realising the debt due by the tenant for rent as an ordinary incident of the ownership of the land, unless the language of section 78 deprives them of such right. Unless the words used by the legislature expressly or even by implication deprive the transferee of his title, I do not think that we can hold that he has no cause of action. The words of the section are as follows:

“No person shall be bound to pay rent to any person claiming such rent as proprietor, or manager, of an estate or revenue-free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under this Act.”

In my opinion the section is not inconsistent with the view that the suit may be brought; but that, the Court shall not order the recovery of the rent by execution till registration is effected.

Section 60 of the Bengal Tenancy Act enacts that the registered proprietor, although he has transferred his proprietary right, shall nevertheless be entitled to recover the rent. Without this special provision a person who has parted with his proprietary title in the property would of course have no right to sue and the legislature has considered it necessary for the protection of the tenant to give the transferer a right which belongs only to the owner of the property. And to carry out the general scheme of the Land Registration Act, section 60 further enacts that the tenant shall not be able to plead in defence to a claim by a person registered that the rent is due to any third person.

Section 81 of the Land Registration Act, however, clearly shows that the rent really belongs to the transferee and that he is entitled to sue the registered proprietor for repayment of the sum realised by him.

I therefore see nothing in the language of section 78 which bars the institution of a suit by the unregistered proprietor.

Also a reference to other enactments shows that where the legislature intends to bar the right of suit altogether, it expressly says so.

Thus, in section 4 of the Succession Certificate Act (Act VII of 1889), it is enacted that no Court shall pass a decree against the debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased or to any part thereof, or proceed upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of a probate or letters of administration or a certificate. It is now settled that a certificate may be produced at any time after the filing of the suit or application.

In section 56 of the Cess Act [Act IX (B.C), 1880] it is enacted that a proprietor whose rent-free land has been assessed by the Collector for road cess cannot recover from the tenure-holder his proportionate share of the cess without first serving certain notices required by section 52. Section 56 expressly provides that after publication of extracts from the roll as provided in section 52 and not otherwise every owner and holder of any rent-free land shall be bound to pay the amount of road cess due. The liability does not arise till the publication of the roll and the right to sue the under tenure-holder does not therefore also arise till then.

Again, section 3 of the Encumbered Estates Act (Act VI of 1876) is framed in language which seems to suggest that the intention of the legislature was not only to bar the recovery of the debt but the institution of the suit in the events contemplated by that section. The section runs as follows:—

“On the publication of an order under section 2 the following consequences shall ensue:—

First, all proceedings which may then be pending in any Civil Court in British India or in any Revenue Court in Bengal in respect to such debt or liabilities, shall be barred; and all process, executions and attachments for or in respect of such debts and liabilities shall become null and void.”

It is clear, therefore, that in the present case there being no express provision barring the suit the Court cannot refuse to entertain it.

Apart from this, it is the rule of our Court that where there is a long cursus curiae established in the High Court of Calcutta this Court will not depart from that course unless strong reasons exist to the contrary. The decisions of this Court in Balak Mahton v. Mathura Ram Dubey and Narain Prasad v. Gaju Mahto have given effect to this rule.

It is however argued that though the law may permit the unregistered proprietor to bring a suit, he can only get a decree if he registers his name before the judgment of the trial Court and that he cannot be allowed to obtain a decree if he registers his name while the case is pending either in first appeal or second appeal.

The reply to this contention is that it is not based on any principle. If the Court can take notice of registration during the suit, why can it not take notice of that fact at the stage of first or second appeal? The truth is that, as he has a cause of action, the unregistered proprietor is always entitled to a decree for the recovery of the debt subject to the condition that he registers his name before the Court issues execution. There is nothing improper in such a decree and one may cite by way of analogy section 10 of the Indian Court-fees Act which provides that when court-fees have been under-estimated the suit shall be stayed for the payment of the full fee within a time fixed by the Court; and section 11 which provides that in suits for mesne profits the decree shall not be executed till the deficit court-fee has been paid.

It may be urged that in second appeal the matter is different as the Court can only interfere if there is an error of law and that if the Court of first appeal dismisses the suit for failure to comply with the provisions of section 44 of the Land Registration Act, it commits no error of law which can be corrected in second appeal and that if the transferee subsequently registers his name the Court of second appeal cannot take notice of such registration.

The reply to this argument is twofold. In the first place, it is admitted here that registration has taken place and the question of taking judicial notice of facts, which have subsequently occurred, does not arise in the second place, failure to give the plaintiffs the decree to which they are entitled is an error of law. The Court of second appeal has the right to decree the claim subject to the condition that registration is made before the time for execution expires or as here, the registration being admitted, to decree the claim, without any condition.

Finally, it is urged that in any event the arrear for 1329 cannot be recovered because on the 26th August, 1926, when the plaintiffs registered their names the suit for the recovery of the arrea was barred by limitation.

To this argument also it is a complete answer to say that if the plaintiffs are entitled to a conditional decree then the question of limitation does not arise. The suit was instituted in time and the conditional decree permits the plaintiffs to register their names any time before they put the decree into execution.

It may be that such an interpretation of the law will encourage proprietors or mortgagees or managers to disregard one of the objects which the Land Registration Act has in view. That may be so; but if the law desires to compel every transferee to register his name on pain of losing his right of suit the language of the Act must be rendered more precise.

I would, therefore, answer the first question in the affirmative.

I would also answer both heads of the second question in the affirmative.

With regard to the third question, namely, whether damages should be allowed, this is not a point which can ordinarily arise in second appeal. The question whether there was reasonable cause for the defendants not to pay the arrear is one of fact which ought to have been disposed of by the Court of first appeal; but under section 103 of the Code of Civil Procedure the Court of second appeal may decide the question upon the evidence on the record; and if there is a difference of opinion between the Judges of the Division Bench on this question of fact the point can, I presume, be referred under clause 28 of the Letters Patent. In my opinion the evidence on the record does not justify the claim for damages. Seeing that the plaintiffs were not the registered proprietors the tenants had reasonable cause in withholding the rent for which at any moment they might have been sued by the registered proprietors. I would, therefore, answer the third question in the negative.

As for interest, both the referring Judges have declined to allow it and there is no reference to me on that point.

The result is that the plaintiffs will lose both the interest and damages.

The cases having been again laid before Kulwant Sahay and Macpherson, JJ., their Lordships passed the following order:—

Kulwant Sahay and Macpherson, JJ.:— The result is that the decree of the District Judge is set aside and a decree will be made in each case in favour of the plaintiffs for the produce rent as well as the nakdi rent with cesses as found by the Munsif, but no damages will be allowed. The plaintiffs will not be entitled to their costs in any Court. The defendants will be entitled to costs in the Munsif's Court as well as to costs in the District Judge's Court, but they will not be entitled to costs in this Court.