Chandranath Mukherjee versus Tusharika Debi and Others

226 SUPREME COURT REPORTS [1959]

• x95B adopted by the respondent in the present litigation. The main pleas raised by the respondent against the K8'havlal Lallu- binding character of the contracts themselves as well bhai Patel .v. as agarns ·. e · t th au th or1 •t yo f L axm1 "d as t o write t e · h 1 etter Lalbhai Trikumlal for extension of time have been rejected by both the Milfa Ltd. courts below, and the only ground on which the respondent succeeds before us was made on behalf of the Gajendragadkar J. respondent for the first time in appeal. Under these• circumstances we think the fair order as to costs would be that parties should bear their own costs throughout. The result is the appeal fails and is dismissed but there would be no order as to costs throughout.

Appeal dismissed .

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x958

CHANDRANATH MUKHERJEE

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v.

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klarch ,4•

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TUSHARIKA DEBI AND OTHERS

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(B. P. SINHA, JAFER IMAM and SuBBA RAO, JJ.)

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• Permanent Tenure-Right of successor to recover arrears of rent by suit-Notice of sitccession to landlord within six months, if mandatory-Mutation in landlord's rent roll-Mode of proofBengal Tenancy Act (Act VIII of.,r885) as amended by Bengal Act JV· of r928, ss. r5, r6.

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The time limit of six months provided by s. 15 of the Bengal • Tenancy Act within \vhich a tenure-holder has to give notice of • • his succession to the landlord or have his name mutated in his rent-roJI is not mandatory but directory in character and the,l)nly effect which non-observance of that time-limit can have under • s. 16 of the Act, is to postpone his remedy to recover arrears of rent by way of suit till such time when he performs the duty cast upon him by s. 15 .,f the Act, but it cannot, by itself, bar the remedy for all time to come., Section 16 is a penal provision and must be subjected to its statutory limitation and the penalty it • imposes cannot be extended by implicati<'m. Consequently, in a case where the sepatnidar resisted the durpatnidars' suit for recovery of arrears of rent ou the ground, inter alia, that they had not got themselves mutated in the fand- )ord's records under s. 15 of the Bengal Tenancy Act and as such

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~UPREME COURT REPORTS 227

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S.C.R.

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the suit was barred under s. 16 of the Act and the courts below found on the evidence ad duced by the durpatnidars that the landlord had accepted rents from them and granted receipts after ordering mutation of their names in the rent-roll :

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Chandranath Mukherjee

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v .•

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Held, that the courts below were right in holding in favour of the durpatnidars that there was the necessary mutation in the landlord's rent-roll.

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Tusharika Debi

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&- Others

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• The factum of mutation in the landlord's rent-roll can be proved not only by the production of original rent-roll or its certified copy but, failing these, also by other secondary proof of mutation. •

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 39of1955. ·

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Appeal from the judgment and decree dated August 28, 1953, of the Calcutta High Court in Appeal from Original Decree No. 97 of 1950 arising out of the judgment and decree dated April 27, 1950, of the Court of Second Sub-Judge of Zillah Hooghly in Rent Suit No. 3 of 1949.

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B. Bagchi and P. K. Ghosh, for the appellant.

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N. C. Chatterjee and D. N. Mukherjee, for the respondents. ·

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March 24. The following Judgment of the Court was delivered by ' , •

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SINHA J.-The main controversy in this appeal on a certificate granted by the High Court of Calcutta, · against the concurrent dec!sions of the courts below, centres rqund the true interpretation and effect of .ss, 15 and 16 of the Bengal Tenancy Act-Act VIII of 1885-(hereinafter referred to as the Act). · The courts below have substantially decreed the plaintiff's suit• for arrears of rent in respect of a se-patni tenure. • Hence, the appeal by the defendant.

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Sinha ].

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The plaintiff's ancestor, Nirmal Chandra Benerjee, was a durpatnidar und~r the patnidar in respect of the tenure in question. He died leaving him surviving, his three sons-Sat)'a Ranjan, Satya Jiban and Satya Kiron-who became the durpatindars in respect of the tenv-re by succession, and there is no dispute that they were so mutated in the superior landlord's office. There was a partition suit between ·them in the court of the

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228 SUPREME COURT REPOR'OO [1959]

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subordinate judge at Alipur, being Title Suit No. 128 Chandranath of 1946. During the pendency of that suit, Promode Mukherjee Kumar Banerjee was appointed Receiver of the • v. properties under partition. Satya Jiban died during Tusharika Debi the pendency of the partition suit. The exact date of & Others his death does not appear in the record. His heirs are: his widow Tusharika Debi and liis two sons, Sinha ]. Uptal Kumar Banerjee who is of unsound mind, and· Ujjal Kumar Banerjee, a minor. The Receiver aforesaid, instituted the suit out of. which this appeal arises, for arrears of rent, against the first defendant, now appellant, in respect of the years 1352 to 1355 B. S. He put the total claim inclusive of interest, at Rs. 40,000 and odd, which was subsequently reduced to Rs. 27 ,000 and odd. It is not necessary to go into the details of the claim, because the amount decreed is no more in controversy. To the suit• for rent, being Rent Suit No. 3 of 1949, in the court of of Second Subordinate· Judge, Hooghly, the heirs aforesaid of Satya Jiban were impleaded as pr.oforma defendants Nos. 2, 2(a) and 2(b), and so were Satya. Kiran and Satya Ranjan as defendants 3 and 4, respectively. During the pendency of the rent suit, the partition suit was compromised, with the result that tlie durpatni tenure in question was allotted to Satya Jiban's branch of the family. Hence, the plaint was amended by an order of the court, dated July 25, 1949, by substituting the aforesil:id heirs of Satya J:iban as the plaintiffs in the place of the Receiver aforesaid, • who was the original plaintiff and who1was discharged . ' from 'I'he the suit record. was contested on a number of grounds, but it is now necessary only to refer to the plea in bar of the suit, namely, that the plaintiffs substituted' as aforesaid, and by transposition from the category of proforma d~endants to that of plaintiffs, were not entitled to sue for rent on the· ground that they had not got themselves mutated rn the place of their predecessors-in-title in the landlord's records anll that, •therefore, this suit w.as barred under s. 16 of the .Act. It is no more necessary to set out the facts 'bearing on the devolution of title to the property in question,

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S.C.R. SUPREME COURT REPORTS 229

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because that was not a controversy raised' in the High Court, and the arguments in this Court were, therefore, confined to the technical plea aforesaid. After hearing the parties, the learned trial judge decreed the suit for Rs. 25,000 and odd. The first defendant preferred an appeal to the Calcutta High Court, and a Divisional Bench of that Court, after hearing the parties, directed • a limited remand to the trial court, for taking additional evidence in proof of certain documents filed by the plaintiffs but noi properly proved at the original trial. The trial court was also directed to submit its findings on the question of the right of the plaintiffs to maintain the suit in view of the provisions of ss. 15 and 16 of the Act. After remand, the documents on proof were again marked as exhibits 1 and 2, and the finding.· was returned by the trial court in due course. After the receipt of the finding, the High Court heard the appeal once again and dismissed it with costs. The appellant moved the High Court and obtained the necessary certificate. Hence this appeal.

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Chandranath Mukherjee

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v •• Tusharika Debi & Others

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Sinka ].

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In this Court, it was argued on behalf of the appellant that the provisions of s. 15 are mandatory; that those pr.ovisions not having been complied with, the bar imposed by s. 16, operates against the plaintiffs, with the result that they are not entitled to reco"ver the arrears of rent by suit. Sections 15 and 16 are in these terms :

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" 15. When a succesmon to a permanent tenure takes place, the person succeeding shall give notice of the succession to the landlord or h~s common agent, if any, in the prescribed form within six months from the date of succession, in addition to or substitution of -any otlrer mode of service, in the manner referred to in ~ sub-section (3) of section 12:

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Provided that where, at the instance of the person succeeding, mutation is made in the rent-roll of the landlord within six months of the succession the ' person succeeding shall not be required to give notice under this section." '

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" 16. A person becoming entitled to a permanent te~ure by succession shall not be entitled to recover by suit or ot.her proceeding any rent payable to him as

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230 SUPREME COURT REPOR~S [1959)

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I958

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I958 the holder of the tenure, until the duties imposed Chandranath upon him by section 15 have been performed." Mukherjee It is common ground that the notice contemplated by • v. s. 15, was not given, but it was contended on behalf

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Tusharika Debi of the plaintiff-respondents that the proviso to that & Others section had been complied with inasmuch as evidence had been adduced by the plaintiffs and accepted by Sinka]. the courts below, that the superior landlords accepted• rents from the plaintiffs and granted them rent-receipts in respect of the tenure in question, after ordering mutation of their names in the r~nt-roll. In order to bring the case within the proviso to s. 15, quoted above, the plaintiffs served a requisition on the landlords-(!) Maharajadhiraj of Burdwan, and (2) Sri Ramlal Bandopadhyaya, to produce all papers in respect of mutation of names regarding the tenure in question. Those documents were not produced, 1:mt the plaintiffs examined P. \V. 2-an employee of the Brtrdwan Raj-and P. W. 3-their own employee-to prove the necessary mutation. P. W. 2 deposed that the plaintiffs paid Rs. IOI as fee for mutation of their names in the office of the Maharajadhiraj of Burdwan and that they were mutated in respect of the 8 annas' interest. P. W. 3, similarly, proves mutation in the ofl'l.ce of Ramlal Babu, in respect of the other 8 annas' share. In pursuance of the mutation, rent was paid and accepted by the landlords. The necessary order of mutation and the rent-re@eipt--exhibits 2 and I respectively-were produced and placed on record after being duly proved_ Nothing has been brought out in • the cross-examination of these two witnesses to detract • r from the value of their evidence. Naturally, therefore, the courts below had no difficulty in accepting their evidence corroborated by those pieces of documentary ' evidence. But it was contended on behalf of the appellant that M. 15 requires proof of mutation in the rent-roll of the landlord, and the rent-roll or its certified copy, should have been adduced in evidence, and in the absence of the primary evidence of mutation contained in the rent-roll, the plaintiffs have failed to prove the requisite mutation. In our opinion, there is no substance in this contention. The landlords' rent-roll

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S.C.R. SUPREtiE COURT REPORTS 231

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was not in the custody or control of the plaintiffs . . They served requisition on their landlords to produce those documents. As those documents were not produced by the parties who would. ordinarily be in possession of their rent-r9lls, the plaintiffs had no option but to adduce secondary evidence of the mutation, namely, the order sanctioning mutation and the "payment of rent to the superior landlord, in pursuance of the sanction of mutation. Like any other disputed fact, the factum of ~utation in the landlords' rent-roll can be proved by the production of the original rentroll or by its certified copy, if available, and failing those, by other secondary proof of mutation. In the circumstances, we are inclined to hold that in this case, the courts below were justified in coming to the · conclusion that there was the necessary mutation of the.plaintiffs in the landlords' rent-roll.

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Chandranath Mukherj:e

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v.

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Tusharika Debi & Others

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Sinha].

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It was next contended that there is no proof that the mutation, even if made, had been made " within six months of the succession". It is true that the date of the death of Satya Jiban, plaintiffs' predecessor-in-title, is not known, if that is the point o:(.time with reference to which the six months' period has to be calculated. If the starting point of time is the date of the allotmt of the tenure in question to the plaintiffs' share as a result of the partition, we know that June 20, 1949, is the date of the compromise, as appears from the list of dates supplied by the counsM for the appellant. The rent-receipt, exhibit 1, is dated January 4, 1950, and the order of mutation passed by the Burdwan Raj, is dated January 20, 1950. Apparently, therefore, the mutation must have been effected within six months front the date of the compromise, as a result of which 6 the entire tenure was allotted to the plaintiffs' share. It was not argued before us that this was not a case of succession, as contemplated by s. 15, rntmely, the death of the last holder on the happening of which event, the succession to the temi.re opened in favour of the plaintiffs. Satya Jiban had only one-third share in the entire tenure by inheritance from his father. The other twothirds shares had been inherited by his two brothers aforesaid. . Hi::nce, strictly speaking, succession to only

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232 SUPREME COURT RPORS

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[1959]

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•
Chandranath
Mukherjee
• v.
TusharikaDebi
&Others
Sinha].
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theone-thirdshareofSatyaJiban,could openonhis
death.Butasthisaspectofthecase wasnotcanvassed
before us, we neednotexpressanyopiniononit.
As
alreadyindicated,thedateofthedeathofSatyaJiban
nothavingbeenbroughtonrecordandifthesix
months'periodhastobe counted fromthatdate,ithas
gottobe assumedinfavouroftheappellantthatthe
mutationevenifeffectedasfound bythecourts below,"
wasnotdone withintheprescribed time.Itmayalso
be mentionedthatitwasnotargQed beforeusthatthe
rentsuithavingoriginally been filedbytheReceiver
_pendente lite,_who representedtheentire 16annas
interestinthetenure,thesuithadbeen properly insti-
tuted,andno questionunderss. 15and16 oftheAct,
would, therefore, ariseifanydevolutionofinterest
took placeduringthependencyofthesuit.
Forthepurposeofdeterminingthepresent con\ro-
versy, we proceedontheassumptionthatthemuta-
tionhadnotbeenmadewithinsixmonthsasprescribed
bys.15,andthatthisdefect affectedtheentireinterest
inthetenureinspiteofthefactthatthetwo-thirds
interest which ori!,\inally belonged toSatyaJiban's
brothers, came totheplaintiffsasaresultofthecompro-
mjseinthepartitionsuit. Section 16asitstandsafter
theamendmentbytheBengalActIVof1928, doesnot
imposeanabsolutebarontherecoverybysuitofthe
arrearsofrent.Thebaristhereonly " untiltheduties
imposed upon him(thatis:theplaintiffs)bys.15,have
been performed." Now,s.16 doesnotspeakofany
time-limit.Itonly speaksofthebartotherecovery
ofthearrearsuntiltheperformancebythelandlord
of"thedutyofgiving noticeofthesuccessionorgetting
mutationmadeonthesuccession.Itwas arguect 'on .
behalfoftheappellantthattheperformanceoftheduty'
aforesaid is inextricablyboundnpwiththeperiodof
sixmonths,arttlthattheperformance oftheduty
beyondthatperiod, is no performanceatallintheeye
oflaw.Wearenotimpressedby;thisargument,and
thereareseveralverygood reasons for holdingtothe
contrary.Theprovisionsofs. 15aremeantnotonly
forthebenefitofthelandlordor oftheinferiortenant,
butoftheintermediatelandlordsalso,th~tistosa.y,the

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S.C.R. SUPREME COURT REPORTS 233

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provision for notice, or in the alternative, for mutation of names in the landlord's .rent-roll, is meant to protect the interest of the superior landlord in that it ensures payment of his dues by the intermediate landlord before the latter can realise the same from his tenant, in this case, the se-patnidar. Those provisions also ensure that the rightful persons entitled to the durpatni tnterest, get themselves mutated in the superior landlord's office, so that the inferior tenants may know who their new landlOl"ds are as a result·of succession to their old landlords. The legislature, -by fixing the limit of six months, intended to indicate that the notice of the mutation should be effected within six months, that is to say, within a reasonable time from the date of the devolution of interest, even as there are similar provisions in respect of the mutation of proprietors in the !'.Jollectorate for the purpose of regular realization of public demands. But the legislature did not intend to make it mandatory in the sense that failing to observe the time-limit, .the landlord . completely deprives himself of his right to. receive rent from his tenant, even though otherwise due. That is the reason why, ins. 16; there is no indication. of time-limit. On the other hand, there is :an indication to the contracy in so far as the last clause quoted above, provides that the bar against the recovery by suit of any rent pay. able to the holder of the tenure, operates only until he performs the duties imposed 'Upon him by s. 15. Section 16, being in the nature of a penal provision, has to be strictly limited to. the words contained in the penal claus~, and the penalty should not .be extended by implication. - If the legislature had intended that . the }1enalty should operate for all times if the duty · ""were not performed within the time specified in s. 15, the legislature would have used the words "within the prescribed time ".; or some· such wr>rds. Instead oflii,ying down such a time-limit,. the legislature has, by the amendment af@resaid by Act IV of 1928, made it clear that the bar operates.only:so long as the duty has not been performed. No authority has been cited before us in support of the extreme proposition that

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Ch11ndranath Mukherj;< v. l'usharika Debi &- Othtrs

Sinha].

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234

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[1959]

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the failure on the part of the landlord to serve the Chandranath requisite notioe or to get the necessary mutation effected ll! ul1herJ ee within six months, has the effect of wiping out the .v. landlord's right to receive rent. There may be rulings Tusharika Debi to the contrary, . but this Court has to resolve the & Others controversy on the language of the relevant sections of the statute, quoted above. That language does not Sinha j. clearly indicate that the result contended for on behal'f of the appellant, must necessarily ensue on his making a default to take those necessar}O steps within the time specified. The language of the statute is not so peremptory in express terms or by necessary implication. On the other hand, as already indicated the language easily lends itself to the construction that the prescribed time is not in the nature of a statutory bar to the exercise of the landlord's right to recover rent. In this connection, it has to be remembered that pat11i tenure and all other subordinate tenures under the patnidar, are permanent tenures. Hence, the relationship of landlord and tenant, continues from generation to generation without there being any necessity of fresh attornment on the death of a ditipatnidar or other grades of tenants in the process of sub-infeudation. '.l'he relationship is all the time there, only the landlord's record has to be kept up-to-date by making the necessary substitution in the rent-roll or by giving notice of the change in the succession to the landlord's interest. The legislature ll.ad to indicate a time by way of laying down the ordinary procedure for taking the steps indicated in s. 15. Six months' period was deem, , ed by the legislature to be a sufficiently long period to eiiable those steps being taken in the ordinary course of business. But it ·is not difficult to imagine"cases. where such steps may not be feasible within the pre-' scribed· time. For example, where the landlord dies leaving him surviving only an infant heir without a proper guardian to protect the infant's interest, it may take a considerably longer period than six months to have a proper guardian appointed, if necessary, through court. It may well be that the succession it~elf is disputed, and the controversy may take some years to ?:t determined finally. It cannot .be reasonably • •

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S.C:R.. SUPREME 'COURT R·EPORTS

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s11ggested .that because the requisite notice or the mutation has not been given or effected within the prescri,bd peri?d of six months, the land.l.ord's. right to recovery of rent, disappears. That c01Hd not have een the .intention· of the legislature. Again, it may. easily be sµpposed. that an honest .tem111t gos po his new landlord and pays him rent harid to hand, even though there has been no such step ·taken withili the time as contemplated by s: 15. It' cannot be said that such a payment of retlt otit of court, will not be· recognized by a court, ifandrwhen a controversy about such a payment were 'to arise. In this way, instances may be multiplied where the provisions of s. 15 of the Act; have not been strictly complied with, but still the receipt and payment of rent as be.tween· the patnidar and his tenant, have continued· for a• sufficiently long period, to prove what was required to be done under that section. In our opinion, the inference is clear that the provision as regards the time-limit, is not mandatory but only directory, and that transgression of that directory.provision has the effect of only deay ing the landlord's remedy of recovery of arrears of rent by suit so long as the landlord has not done what he is required by law to do. But that provision has nt the effect of absolutely depriving the landlord of his remedy by suit for all times; he may recover through court, of couse, subject to the law oflimitation. In our opinion, therefore, acceptan of the appellant's arguments would be nothing more than " piling unreason upon technicality", which no court of justice can countenance. . . , . . · .

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In view of these considerations, it must be held th'!tt there• is no merit in this appeal which is, accordingly, 'dismissed with costs.

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Chandranal!t Mukherjee v. •

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Tusharika Debi b Others

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Sinha ].

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Appeal<dismissed . ..