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1895 Supreme(Cal) 81
CALCUTTA HIGH COURT
W. Comer Petheram, C.J, Prinsep, J., Norris, J., Ghose, J., Beverley, J.
Alimuddin Khan - Appellant
Versus
Hira Lall Sen & Ors. - Respondent
Decided On : 14-06-1895
Headnote:
Registration - Rent Suit - Land Registration Act, 1876 - Sections 78, 79, 81 - Whether unregistered proprietor can sue for rent - Whether suit maintainable - Whether registration is a condition precedent to suit - Whether registration is a mere link in the chain of proof - Whether payment to registered proprietor is a valid discharge - Whether suit should be dismissed - Whether case of Dhoronidhur Sen v. Wajidunnissa Khatoon ILR Cal. 708 was rightly decided - Held, that an unregistered proprietor cannot sue for rent - Suit must be dismissed - Registration is not a mere link in the chain of proof - Payment to registered proprietor is a valid discharge - Case of Dhoronidhur Sen v. Wajidunnissa Khatoon ILR Cal. 708 was rightly decided
Fact of the Case:
The plaintiff, an unregistered proprietor of an estate in Calcutta, sued the tenant-defendant for arrears of rent without having previously caused his name to be registered under the Land Registration Act (Bengal Act VII of 1876). At the first hearing, he produced the certificate of registration which he obtained since bringing the suit.
Finding of the Court:
The Court held that an unregistered proprietor cannot sue for rent and the suit must be dismissed. The Court further held that registration is not a mere link in the chain of proof and payment to the registered proprietor is a valid discharge. The Court also held that the case of Dhoronidhur Sen v. Wajidunnissa Khatoon ILR Cal. 708 was rightly decided.
Issues: Whether an unregistered proprietor can sue for rent? Whether registration is a condition precedent to suit? Whether registration is a mere link in the chain of proof? Whether payment to registered proprietor is a valid discharge? Whether the case of Dhoronidhur Sen v. Wajidunnissa Khatoon ILR Cal. 708 was rightly decided?
Ratio Decidendi: The Court interpreted Sections 78, 79, and 81 of the Land Registration Act, 1876. The Court held that Section 78 prohibits tenants from paying rent to unregistered proprietors, implying that unregistered proprietors lack a cause of action for rent. Section 79 provides indemnity to tenants paying rent to registered proprietors, regardless of their entitlement, further supporting the view that unregistered proprietors cannot sue for rent. Section 81 allows the rightful owner to recover rent paid to another, but this does not imply a right to sue for rent before registration. The Court concluded that registration is not a mere link in the chain of proof but a condition precedent to a suit for rent. Payment to a registered proprietor, even if not the rightful owner, is a valid discharge.
Final Decision: The Court held that the suit should be dismissed as the plaintiff was an unregistered proprietor.
JUDGMENT
W. Comer Petheram, C.J. - The two questions which have been referred to this Bench do not depend on the same considerations, and I prefer to answer the second before the first.
2. If the plaintiff in the case of Dhoronidhur Sen v. Wajidunnissa ILR Cal. 708 had, when he brought his suit, a cause of action against the defendant, which he was then entitled to enforce against him, but the evidence to enable him to establish which was then, defective, because his title had not been registered, and if such defect of proof had been cured by registration before the final hearing, then I think the case of Dhoronidhnr Sen v. Wajidunnissa Khatoon ILR Cal. 708 was wrongly decided. If, on the other hand, the plaintiff had no cause of action against the defendant, which, when he brought his suit, he had the right to enforce by action against him, then in my opinion the case was rightly decided, as such a defect cannot be cured by anything which is done after the suit has been commenced.
3. The distinction has long been well known, and was recognized by Malins, V.C., in the case of Hassall v. Wright 10 EL.R. 509, in which he drew a distinction between the English Copyright Act, by which it is provided that "until registration of the copyright, no person interested shall be able to maintain any suit at law or in equity," and the Patent Law Amendment Act, which simply enacts that, "until an entry has been made, the grantee or grantees of the Letters Patent shall be deemed, and taken to be, the sole and exclusive proprietor or proprietors of the Letters Patent." See also Lucas v. Dixon IL.R. Q.B.D. 357.
4. The property in respect of which the dispute arose in the case of Dhoronidhur Sen v. Wajidunnissa Khatoon ILR Cal. 708 was in the Mofussil, and the provisions of the Bengal Tenancy Act apply to that case.
5. If Section 78 of Act VII of 1876 be read alone, it may no doubt be contended that its only effect is to limit the mode in which the plaintiff can prove his title; but it must be read together with Sections 79 and 81 of the same Act, and for the purpose of this question, together with Section 60 of the Bengal Tenancy Act. When this is done, it is evident that, so far from the plaintiff having had any cause of action against the defendant when he brought his suit which he was then entitled to enforce against him, the right to recover this rent was at that time vested in another person, who could himself enforce his claim by suit, and to whose suit the right of the unregistered proprietor, though well established, would afford no answer; his remedy being, in my opinion, that, and that only, which is recognized and kept alive by Section 81 of the Land Registration Act.
6. If the decision in the case of Dhoronidhur Sen v. Wajidunnissa Khatoon ILR Cal. 708, is overruled, the position of the tenant, who is one of the persons for whose benefit, we are told, this legislation was intended, will be this : He will be liable to be sued for the same rent by two persons at the same time, in separate actions, to neither of which can he, at the time the actions are commenced, have any answer. If he is well advised by a skilful lawyer, he may not be compelled to pay the rent more than once, and if at the same time the actions are brought he is prepared with the whole rent and the necessary fee, it may be that he may escape further annoyance, by paying the money into Court, u/s 61 of the Tenancy Act, but in any case he is fairly certain to have to pay his own costs, at least, of both actions, and if he deposits the rent in Court, he must pay the fee u/s 62 as well.
7. I do not think the Legislature intended to place a perfectly blameless person in such an unfortunate predicament.
8. It may be the case that the law may at times work hardship, and sometimes even cause the actual loss of the rent, as it may become barred by limitation before registration has been effected, but I do not think that is any reason why we should refuse to give effect to what is, i
