Back
1930 Supreme(SC) 37
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN SIR LANCELOT SANDERSON, AND SIR GEORGE LOWNDES.
JITENDRA NATH GHOSE - Appellant
Versus
MONMOHAN GHOSE (DEFENDANTS) - Respondents
On appeal from the High Court at Calcutta.
Decided On : Apr. 29. 1930.
Solicitors for appellants:Stanley Johnson & Allen. Solicitors for respondents: Watkins & Hunter.
Landlords cannot execute rent decrees by selling a tenure if the decrees include non-recoverable interest or were obtained against recorded tenants while ignoring statutory notices of transfer. Substantive suits to challenge such sales are not barred by procedural restrictions applicable only to execution proceedings.
Headnote:(A) Bengal Tenancy Act, 1885 - Sections 11, 12, 13, 65, 67, 170 - Indian Limitation Act, 1908 - Schedule I, Article 120 - Code of Civil Procedure, 1908 - Order XXI, Rules 58 to 63 - Execution of rent decrees - Transfer of tenure - Notice of transfer - Recoverability of interest - Right to sue - Landlords cannot ignore transfers of tenure and rely on decrees obtained against recorded tenants when statutory notice of transfer is provided through registration and the Collector - Only arrears of rent are charged upon the tenure under the Act, and decrees including interest not recoverable as rent cannot be executed by sale of the tenure - Provisions barring investigation of third-party claims within execution proceedings do not preclude the filing of a substantive suit to protect interests in the tenure - In suits to restrain the sale of tenure, the period of limitation begins when the application for sale is made, as the right to sue accrues when the interest in the property is actually threatened.
Facts of the case:
A tenure created before the enactment of the Tenancy Act was subject to a kabuliyat providing for high interest upon default and re-entry and prohibiting transfer. The Act subsequently made the tenure transferable and limited the interest recoverable. The landlords obtained rent decrees against the original tenants, including interest not recoverable under the Act, despite the tenure having been transferred to third parties. The landlords then sought to execute these decrees by selling the tenure, leading the transferees to seek a declaration of title and an injunction against the sale.
Findings of Court:
The court found that the landlords had notice of the transfers through statutory procedures. The decrees were not proper rent decrees because they included interest that was only payable upon re-entry, an event that could not occur under the provisions of the Act. Consequently, the tenure could not be sold to recover sums that did not constitute rent.
Issues: Whether a landlord can execute rent decrees against a tenure by ignoring transfers of interest; whether decrees containing non-recoverable interest are executable by sale of tenure; whether statutory bars on investigation during execution proceedings preclude substantive suits; and when the limitation period for such a suit commences.
Ratio Decidendi: The Act of 1885 shifted the burden of notice from the transferee to a statutory system of registration and notice via the Collector; therefore, landlords cannot rely on decrees against recorded tenants while ignoring statutory transfers. Only actual rent arrears are charged on the tenure; thus, decrees for non-rent sums cannot be executed by sale. A substantive suit is not barred by procedural restrictions on execution proceedings. The right to sue accrues when the threat of sale becomes imminent, rather than from the date of the decree.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
-
land tenancy
- bengal tenancy act
-
practice and procedure
-
execution of decrees
- sale of tenure
-
limitation
- accrual of cause of action
-
execution of decrees
Judgement
Appeal (No. 109 of 1928) from a decree of the High Court (March 25, 1926) reversing a decree of the Subordinate Judge of Kulna (December 24, 1926).
On November 11, 1921, the respondents brought the present suit against the appellants who were landlords of a dar-gant tenure which was created before the Bengal Tenancy Act, 1885, but was subject to its provisions. The plaintiffs claimed a declaration of their title to the tenure, and an injunction restraining the appellants from executing by a sale of the tenure three decrees, dated respectively June 14, 1911, August 18, 1915, and November 7, 1919, which were made in suits to which they had not been joined as defendants.
The appellants pleaded (inter alia) that the decrees were rent decrees which they were entitled to execute by attachment and sale of the tenure under Ch. XIV. of the Act; they also pleaded that the suit was barred by limitation.
The facts appear from the judgment of the Judicial Committee.
The Subordinate Judge dismissed the suit.
On appeal to the High Court the decision was reversed and an injunction granted. The learned judges (Chatterjee and Panton JJ.) held that the plaintiffs had a right by purchase of the tenure, though the exact nature of the right should be left open, and that the decrees were not rent decrees which could be executed by attachment and sale of the tenure under the Bengal Tenancy Act, 1885, as they were for sums which included interest which was not due under the kabuliyat and were not a charge upon the tenure under the Act. It was held, further, that the suit was not barred by the Indian Limitation Act, 1908, Sch. I., art. 120. The decrees could be executed either as money decrees or as rent decrees, and until the landlords took steps to execute them as rent decrees the plaintiffs were not affected. Time ran therefore from the date when the landlords applied for a sale of the tenure, not from the date of the decrees.
1930. May 18, 19, 21. De Gruyther K.C. and Parikh for the appellants. The decrees were rent decrees binding upon the tenure and entitling the landlords to sell it under Ch. XIV. of the Act. The landlords were not bound to join as defendants persons who were not recorded in their serishta or record of tenants Sham Chand Kundu v. Brojonath Pal Chowdhury (( 1873) 21 S. W. R. (C. R.) 94.); Rash Behary Bundopadhya v. Peary Mohun Mookerjee (( 1878) I. L. R.,4
C. 346.); Panye Chunder Sircar v. Hurchunder Chowdhry (( 1884) I. L. R. 10 C. 496.); Jeo Lal Singh v. Gunga Pershad . (( 1884) I. L. R. 10 C. 996.) There is no case holding that the above decisions do not apply under the Act of 1885. There is no suggestion to that effect in the judgment of the Board in Chunder Butt v. Earn Kumar Chatterji (( 1904) L. R. 31 I. A. 195.) delivered in 1904. It was not proved that the appellants had notice of the plaintiffs interest. As the tenure was created before 1885 the provision for interest in the kabuliyat could be given effect to. Sect. 178, sub-s. 3, expressly refers only to contracts made after the passing of the Act; in that respect it contrasts with s. 178, sub-ss. 1 and 2. The inclusion of the interest did not prevent the decree from being a rent decree Madhu Mala v. Alfazuddi Kazi . (( 1909) 13 C. W. N. 962.) Even if upon the true construction of the kabuliyat the 75 per cent, interest was not due, the decrees were rent decrees under the Act, and the appellants had a statutory right to execute them by a sale of the tenure. Sect. 170, sub-s. 1, by excluding the application of ss. 278 to 283 of the Code of Civil Procedure, 1908, precluded the respondents from contesting that right, whatever other rights they may have. In any case the decrees could be executed to the extent to which they were for rent recoverable under the Act. Further, the suits were barred by the Indian Limitation Act, 1908, Sch. I., art. 120, as the right to sue accrued at the date when the respective decrees were made.
Dunne K.C. and Dube for the respond
