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Prodyot Kumar Tagore v. Sarat Chandra Das

Calcutta High Court

Apr 19, 1917

Judgment

Subsequent
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Structured Summary of the Provided Opinion

Factual and Procedural Background

The appeals arise from a dispute over the nature of certain small holdings called "khod jotes" (or jotes). The essential disagreement is whether these jotes are raiyati holdings (giving permanent occupancy rights) or tenures, and if tenures, whether the tenure is permanent. A Settlement Officer initially addressed the origin and character of the jotes. The Assistant Settlement Officer and the learned Special Judge made concurrent findings that the holdings are tenures, and the Assistant Settlement Officer recorded the Defendant-Respondent's interest as permanent. The landlord (Appellant) challenged the Record by way of an application under sec. 106 of the Bengal Tenancy Act

Multiple kabuliyats (written agreements) executed at different dates (1250 B.S / 1843 A.D, and later in 1277, 1285 and 1295 B.S) were produced by the parties. The question whether the jotes are tenures or raiyati holdings was treated as finally determined by the concurrent findings below and not open to challenge on second appeal; the present appeals therefore focus principally on whether, assuming they are tenures, the tenures are permanent.

Legal Issues Presented

Whether the contested jotes are raiyati holdings or tenures (the courts below found they are tenures and that finding was treated as final on this appeal).
If the jotes are tenures, whether those tenures are "permanent" — i.e., heritable and not held for a limited time (as described in sec. 3(8) of the Bengal Tenancy Act), in light of the terms of the kabuliyats and surrounding evidence.

Arguments of the Parties

Appellant (Landlord) — Principal Contentions

The landlord applied under sec. 106 of the Bengal Tenancy Act to correct the Record because the Defendant's interest had been entered as permanent when it should be temporary/non-permanent.
The landlord emphasized terms in the series of kabuliyats (particularly the later ones) indicating a term of years, references to "sara-sari" or temporary arrangements, and an express right of re-entry by the landlord if the tenant did not enter into a fresh arrangement — all of which, the landlord argued, show the tenure was not permanent.
The landlord pointed to restraints on alienation and obligations to preserve trees in the kabuliyats as evidencing a contractual arrangement inconsistent with a permanent tenure-holder's ordinary incidents (such as the liberty to cut trees and the usual right of alienation).
The landlord argued that repeated renewals or long possession (over decades) do not change the character of the underlying contractual arrangement between the parties.

Respondent (Defendant/Tenant) — Principal Contentions

The Defendant had previously pleaded that her interest was that of a raiyat and was permanent; that claim was not advanced further on appeal (the raiyati claim is stated as "no longer under discussion").
Evidence was presented of descent: one kabuliyat executed (in 1250 B.S) by Rup Nath Das (a benamdar for Bishnu Charan), a later by Bishnu's son Biseswar, and subsequent kabuliyats by Biseswar's widow (the present Defendant), and oral evidence referring to succession from father to son and to a recognized moral claim of heirship.
The Defendant relied on long possession and repeated recognition by the landlord as relevant to the claim of permanence (these facts were asserted but ultimately treated by the Court as insufficient to establish legal permanency given the contractual terms).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The two judges (Richardson, J. and Walmsley, J.) each addressed the legal issues, with overlapping but distinct emphases.

Richardson, J. — Analysis

Richardson J. acknowledged difficulty with the appeal and the analogous appeals heard together, and noted the Settlement Officer's observations about the unique origins and character of the khod jotes, including indications that, in the landlord's officers' view, tenants possessed something akin to permanent residential rights.
He expressed a suspicion that the jotes may have originated as raiyati holdings or grown from smaller raiyati holdings, and that the contractual incidents attached to them resemble ordinary incidents of raiyati holdings. Nonetheless, he accepted the concurrent factual findings of the courts below that the holdings are tenures — a finding not challenged on second appeal and therefore final.
Given the determination that the holdings are tenures, Richardson J. found it difficult to accept the lower courts' conclusion that the tenure was permanent. He explained that permanency is not solely a factual question but depends largely on the construction of the kabuliyats (for example, whether terms such as "Shara-shari" or "Temporary" refer to variability of rent or the nature of the tenancy).
He observed that Sec. 179 of the Tenancy Act had no application because the tenure was not a mokurari tenure. He also referenced Sec. 11 of the Bengal Tenancy Act (stating that permanent tenures are capable of transfer and bequest) and Sec. 10 of the Transfer of Property Act (noting a potential interaction), but expressly declined to form a definitive opinion on whether transferrestrictions in the kabuliyats are void under those provisions.
Taking the kabuliyats as a whole, Richardson J. found it not easy to suppose any of them created or referred to a permanent tenure, and he concurred with the order proposed by his brother.

Walmsley, J. — Analysis (more detailed, addressed the statutory definition)

Walmsley J. framed the appeal as arising under sec. 106 of the Bengal Tenancy Act, and stated the core issue as whether the tenure, as entered in the Record, was properly described as permanent.
He cited the statutory description of a permanent tenure in sec. 3(8) of the Act: that a permanent tenure is "heritable and ... not held for a limited time". He accordingly analyzed the two components: (a) heritability, and (b) not being held for a limited time.
On heritability: Walmsley reviewed the four produced kabuliyats (dated 1250, 1277, 1285 and 1295 B.S) and the oral evidence of descent (from father to son and then to the son's widow). He accepted the Special Judge's reliance on an oral witness statement, but found that the witness's remark ("Why should the malik do an injustice by selling the jote with a new tenant") only suggested a moral or customary recognition of succession, not a legal right of hereditary succession. He noted the important omission in all kabuliyats of the phrase "from generation to generation" — a known formula for establishing legal heritability — and held that the tenant therefore bore a heavy onus to prove heredity, which the oral evidence did not discharge. He also pointed to references to the payment of nazarana in the oral evidence as indicating that succession depended on grace/payment rather than a legal right. He concluded heritability was not proved.
On the requirement that a permanent tenure not be held for a limited time: Walmsley examined the contractual terms. He observed that all kabuliyats required the tenant to preserve trees and restrained the tenant from making transfers; the later three kabuliyats further prohibited partition and were expressed for a term of years. He explained that typically a tenure-holder would have rights (for example, to cut trees and to alienate) and that while alienability is not an absolutely essential feature, it is commonly regarded as a usual incident of permanent tenure. The presence of restraints and tree-preservation obligations weighed against permanency.
Walmsley emphasized the later kabuliyats' description of "sara-sari" and their expression as for a term of years, together with clauses giving the tenant the right to enter a fresh arrangement on terms to be fixed by the landlord. Critically, the three later kabuliyats contained an express condition allowing the landlord to re-enter if the tenant did not enter into a fresh arrangement; Walmsley found this re-entry condition irreconcilable with a claim of permanent tenure and sufficient to show the tenure was for a limited time.
He addressed the landlord's conceded factual points for the defense — long possession and few written kabuliyats over many decades — but concluded that length of possession and repeated renewals do not change the legal character of the agreement. The fact that the earliest kabuliyat covered a much smaller area than the latest reinforced his view that the contractual arrangements changed over time and did not establish legal permanency.
On these bases he found the Special Judge's decision (that the tenure was permanent and heritable but non-transferable and with a variable rent) to be wrong, and held that the correct entry should reflect that the tenure was non-permanent.

Holding and Implications

CORE HOLDING: The Court allowed the landlord's appeal and ordered the Record to be corrected by substituting the word "non-permanent" for the words "permanent and heritable" in respect of the Defendant's interest.

Direct consequences for the parties:

The Record-of-rights entry describing the Defendant's interest as "permanent and heritable" is to be altered to read "non-permanent".
In all the appeals heard together, the judgments delivered in this case will govern the analogous appeals (the opinion expressly states that the judgments will govern other analogous appeals).
Costs: The Court ordered that, in all these appeals, the parties will bear their own costs.

Broader implications:

The Court's reasoning focuses on contractual construction of the kabuliyats and the presence of terms (e.g., term-of-years, landlord's right of re-entry, restraints on alienation, preservation of trees, and the absence of the phrase "from generation to generation") as determinative of whether an interest held as a "tenure" is legally permanent. The opinion emphasises that factual findings that a holding is a tenure are not open to second appeal, but that permanency requires careful construction of the agreements.
The opinion does not state that a new legal precedent is being laid down beyond resolving these appeals; however, it does state explicitly that the judgments will govern the other analogous appeals heard along with this matter.

Disposition

Appeal allowed (entry in the record-of-right to be corrected to "non-permanent"); parties to bear their own costs. The judgments will govern the other analogous appeals.

Show all summary ...

Richardson, J.:— I confess that I have had some difficulty with this appeal and the analogous appeals which were argued along with it. I have been greatly impressed with what the Settlement Officer says in his judgment in the present case (paragraph 3) about the origin and special character of these jotes. He says that they are known as khod jotes and he observes with great force that the term is reminiscent of the khod-khast raiyats of an earlier period. He mentions other features in the evidence which go far to show that, in the opinion at any rate of the landlord's officers, the tenants of these jotes possess rights which to use a neutral term may be described as permanent residential rights. I have a strong suspicion that in spite of their present area the jotes were in their origin raiyati holdings, or they may have grown Out of smaller holdings of a raiyati character. The special incidents now attached or sought to be attached to them by contract reasemble very largely the ordinary incidents of a raiyati holding at the present day. On the question, however, whether the jotes are tenures or raiyati holdings, we are confronted with the concurrent findings of the Courts below that they are tenures. No attempt was made in the argument before us to displace that finding on any ground open in second appeal and it must therefore be accepted as final.

In the appeal before us, the tenant's rights being, as we must now take them to be, those of a tenure-holder, there is great difficulty in agreeing with the Courts below that the tenure is a permanent tenure. The question is not merely one of fact. It depends at any rate to a large extent on the construction of the kabuliyats executed from time to time by the tenant or his predecessors. It is a question of construction for instance whether the word “Shara-shari” or “Temporary” which occurs in these documents or some of them, refers to the variability of the rent or the nature of the tenancy. The learned Special Judge in the lower Appellate Court has come to the conclusion that while the tenure is permanent and heritable, the rent is variable and the tenure is not transferable. Now there is no inconsistency at all between a permanent tenure and a variable rent, but permanency and non-transferability are not so easily recoucileable. Sec. 179 of the Tenancy Act has no application because the tenure is not a mokurari tenure.

If the tenure is permanent it falls under the provision in sec. 11 of the Bengal Tenancy Act which says that, “Every permanent tenure shall, subject to the provisions of this Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable property”. If this section be read with sec. 10 of the Transfer of Property Act, it may be that as the kabuliyats do not provide for re-entry by the landlord in case of breach of the condition against transfer, the condition is in any case void, whether the tenure is permanent or not. But however that may be I express no opinion on the point. Taking the terms of the series of kabuliyats as a whole, it is not easy to suppose that the kabuliyats or any of them is either creative of, or refers to, a permanent tenure.

The difficulty and responsibility of deciding in the first instance whether a particular tenancy is a tenure or rayati holding is often, in cases near the border line, enhanced by the fact that if the tenancy is held to be rayati the tenant will have permanent rights of occupancy, while if it is held to be a tenure it may almost necessarily follow that the tenure is not permanent. The problem is sometimes specially difficult in the case of leases of new lands which are to be brought under cultivation because the position of the tenant at the incepion of the tenancy may be very different from his position, it may be many years later, when the land has been successfully reclaimed and the question arises. At first it may not be to the landlord's interest to deny that the tenant is a raiyat and there may be an understanding, probably on an informal basis, that he is a raiyat. As time goes on it may be very much to the landlord's interest to assert that the tenant is a tenure-holder.

The present is a case in point. The dispute between the parties really turns on the question whether the jote is a tenure or a rayati holding and the decision on this question is not now open to review.

On the whole I am forced to the same conclusion as that arrived at by my learned brother and concur in the order which he proposes to make.

I may add that the relations between the landlord and his khod jote tenants appear to have been in the past of the friendliest character. I trust that the present controversy will not disturb the excellent relations hitherto existing and will not lead the landlord to treat his tenants with less consideration than he has hitherto done.

The judgments delivered in this case will govern the other analogous appeals.

In all these appeals the parties will bear their own costs.

Walmsley, J.:— This appeal is by the landlord, and arises out of an application under sec. 106 of the Bengal Tenancy Act. The substance of the application is that the Defendant-Respondent's interest in a tenure has been entered in the Record as permanent, whereas it should be only temporary.

The Defendant pleaded that her interest was that of a raiyat and was permanent. The claim of a raiyati interest is no longer under discussion, and the question now is whether the tenure is permanent or not.

The Assistant Settlement Officer held that the tenure was permanent. On appeal, the learned Special Judge upheld the decision with the qualifications that the tenure was not transferable and that the rent was liable to enhancement. The landlord now asks us to go further and hold that the tenure is not permanent. A permanent tenure is described in sec. 3(8) of the Act as a tenure which is heritable and which is not held: for a limited time.

I will deal first with the feature of heritability. Four kabuliyats have been laid before us, one produced by the Defendants, and three by the landlord, the first executed in 1250 B.S (1843 A.D) and the other three in the years 1277, 1285 and 1295 B.S From the evidence it, appears that Rup Nath Das, who executed the first, was a benamdar for Bishnu Charan, and that the second was execued by Bishnu's son Biseswar, and the third and fourth by Biseswar's widow, the present Defendant. The learned. Judge holds, and. I think rightly, that the descent from father to son, and then to the son's widow, is not enough to establish the fact of heritability, and he finds that heritability is proved by the oral statement of Plaintiff's first witness. This statement is set out in full by the Settle-men Officer, and I need not repeat it. The part of it on which special emphasis is laid is the sentence, “Why should the malik do an injustice by selling the jote with a new tenant”. It appears to me, however, that these words do not go very far. The witness only means that the dead man's heir is recognised as having a moral claim to succeed to his father's rights. He does not mean that the heir has a legal right which the malik cannot ignore. Against this evidence we have the very important omission in the kabuliyats: not one of them contains the-words “from generation to generation”. These words form a well-known phrase, and the tenant who claims an hereditary right under a document which does not contain them has a heavy onus to discharge. Not only does the oral evidence just referred to fail to discharge that onus, but the same witness by his reference to the payment of nazarana at least suggests that succession of son to father is not a matter of right, but a matter of grace and payment. In my opinion therefore the feature of heritability is not proved.

Next as to the words “which is not held for a limited time”. The finding of the Courts below is that the settlement of the tenure was permanent, but the settlement of the rent payable in respect of it was temporary. It is not necessary to consider whether such a contract is possible, because there are other terms in these kabuliyats which call for remark and help to decide the true nature of the arrangement.

In the first place all the kabuliyats bind the tenant to keep the trees intact; and in the second place they all restrain him from making any transfer of the land. The last three add that he must not partition the lands. In the ordinray way a tenure-holder has the right to cut down trees, and the right of alienation, though not an essential feature of a permanent tenure, is commonly regarded as an invariable incident.

Next, the three later kabuliyats speak of a sara-sari, and like the first they are for a term of years. They contain no clause to the effect that the rent only is temporary. The most that can be said for them is that each in turn gives the tenant the right to enter into a fresh arrangement on terms to be fixed by the landlord. More important than this is the condition in the three later kabuliyats for the landlord's right of reentry in the event of the tenant not entering into a fresh arrangement. It is true that this condition is not in the kabuliyat of 1250 B.S but I think the learned Vakil for the Appellant is right in asking us to look at the terms of the latest agreement rather than of the earliest. This condition cannot, I think, be reconciled with the Defendant's claim for permanency and is by itself sufficient to prove that the tenure is held for a limited time’. It seems to me impossible to hold, in the face of such a condition, that the temporary character of the agreement was limited only to the amount of rent.

On the other hand it is pointed out that the tenant has been in possession for a long time, and that for a period of 70 years only four kabuliyats, for terms aggregating 29 years, are produced. I fail to see that these facts alter the nature of the agreement between the parties, and it is to be remarked that the first kabuliyat is for; an area less than one-fourth of the area mentioned in the last kabuliyat. Repeated renewals of an agreement do not change the character of an agreement.

It is, I think, equally unsafe to draw any inference from the fact that the landlord has granted settlement again and again to the same man or to his successor-in-interest. Self-interest may be the explanation, or friendly relations between landlord and tenant.

In my opinion the decision of the learned Special Judge is wrong, and I would decree the appeal and order the entry in the record-of-right to be corrected, that is to say by substituting the word “non-permanent” for the words “permanent and heritable.”

N.G

Appeal allowed.