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PETITIONER: CHANDRANATH MUKHERJEE

       Vs.

RESPONDENT: TUSHARIKA DEBI AND OTHERS

DATE OF JUDGMENT: 24/03/1958

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER SUBBARAO, K.

CITATION:  1958 AIR  521            1959 SCR  226

ACT:        Permanent  Tenure--Right of successor to recover arrears  of        rent  by  suit-Notice of succession to landlord  within  six        months,  if mandatory-Mutation in landlord’s rent  roll-Mode        of Proof Bengal Tenancy Act (Act VIII of 1885) as amended by        Bengal Act IV of  1928, ss. 15, 16.

HEADNOTE: The time limit of six months provided by s. 5 of the  Bengal Tenancy Act within which a tenure-holder has to give  notice of  his succession to the landlord or have his name  mutated in his rent-roll is not mandatory but directory in character and the only 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. 5 Of 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 implication. Consequently,  in a case where the sepatnidar  resisted  the durpatnidars’  suit for recovery of arrears of rent  on  the ground, inter alia, that they had not got themselves mutated in the landlord’s records under s. 15 of the Bengal  Tenancy Act and as such 227 the  suit was barred under s. 16 of the Act and  the  courts below found on the evidence adduced by the durpatnidars that the  landlord  had  accepted rents  from  them  and  granted receipts after ordering mutation of their names in the rent- roll: 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. 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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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 39 of 1955. 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. B.   Bagchi and P. K. Chosh, for the appellant. N.   C. Chatterjee and D. N. Mukherjee, for the respondents. 1958.   March 24.  The following Judgment of the  Court  Was delivered by SINHA   J.-The  main  controversy  in  this  appeal   on   a certificate  granted by the High Court of Calcutta,  against the concurrent decisions of the courts below, centers  round 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. The  plaintiffs  ancestor, Nirmal Chandra Benerjee,  -was  a durpatnidar  under the patnidar in respect of the tenure  in question.   He died leaving him surviving, his  three  sons- Satya  Ranjan,  Satya Jiban and Satya Kiron-who  became  the durpatindars  in  respect of the tenure 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 228 subordinate  judge  at Alipur, being Title Suit No.  128  of 1946.  -During  the  pendency of that  suit,  Promode  Kumar Banerjee  was  appointed Receiver of  the  properties  under partition.   Satya  Jiban died during the  pendency  of  the partition suit.  The exact date of his death does not appear in the record.  His heirs are: his widow Tusharika Debi  and his  two sons, 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 proforma 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 the 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  aforesaid heirs of Satya,  Jiban  as  the plaintiffs  in the place of the Receiver aforesaid, who  was the  original  plaintiff  and who was  discharged  from  the record. The suit 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  defendants  to that of plaintiffs, were not entitled to sue for rent on the ground that they had not got themselves mutated in the place of their predecessors-in-title in the landlord’s records and that,  therefore,  this suit was barred under s. 16  of  the Act.   It is no more necessary to set out the facts  bearing

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on the devolution of title to the property in question, 229 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 not  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 I 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. In this Court, it was argued on behalf of the appellant that the provisions of s. 15 are mandatory; that those provisions not  having  been complied with, the bar imposed by  s.  16, operates  against the plaintiffs, with the result that  they are  not  entitled to recover the arrears of rent  by  suit. Sections 15 and 16 are in these terms: " 15.  When a succession to a permanent tenure takes  place, the person succeeding shall give notice of the succession to the landlord or his common agent, if any, in the  prescribed form  within  six  months from the date  of  succession,  in addition to or substitution of any other mode of service, in the manner referred to in sub-section (3) of section 12: 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." "  16.  A person becoming entitled to a permanent tenure  by succession shall not be entitled to recover by suit or other proceeding any rent payable to him as 230 the holder of the tenure, until the duties imposed upon  him by section 15 have been performed." It   is common ground that the notice contemplated by s. 15, was not given, but it was contended on behalf of  the plaintiff-respondents  that the proviso to that section  had been complied with inasmuch as evidence had been adduced  by the  plaintiffs and accepted by 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 rent-,roll.   In order to bring the case within the  proviso to s. 15, quoted above, the plaintiffs served a  requisition on the landlords-(I) 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, but the plaintiffs examined  P. W.  2-an employee of the Burdwan Raj-and P. W.  3-their  own employee-to  prove the necessary mutation.  P. W. 2  deposed that  the  plaintiffs paid Rs. 101 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 office of Ramlal Babu, in respect of the other 8 annas’ share.   In

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pursuance of the mutation, rent was paid and accepted by the landlords.   The necessary order of mutation and  the  rent- receipt-exhibits 2 and 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  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  s. 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 231 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- rolls, 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   mutation   in    the landlords  rent-roll can be proved by the production of  the original  rent-roll 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. 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 of time with reference to which the six months’ period has to be calculated.  If the starting  point of  time  is  the date of the allotment  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 counsel 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 from the date of the compromise, as a result of which the entire tenure was allotted to the plaintiffs’ share.  If was  not  argued  be-fore us that this was  not  a  case  of succession,  as contemplated by s. 15, namely, the death  of the  last  holder  on  the happening  of  which  event,  the succession to the tenure opened in favour of the plaintiffs. Satya Jiban had only one-third share in the entire tenure by inheritance  from his father.  The other  two-thirds  shares had  been inherited by his two brothers  aforesaid.   Hence, strictly speaking, succession to only 232 the one-third share of Satya Jiban, could open on his death. But as this aspect of the case was not canvassed before  us, we  need  not  express  any  opinion  on  it.   As   already indicated,  the date of the death of Satya Jiban not  having been brought on record and if the six months’ period has  to be  counted  from  that date, it has got to  be  assumed  in favour  of the appellant that the mutation even if  effected

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as  found  by  the courts below, was  not  done  within  the prescribed  time.  It may also be mentioned that it was  not argued  before us that the rent suit having originally  been filed  by  the Receiver pendente lite, who  represented  the entire  16 annas interest in the tenure, the suit  had  been properly instituted, and no question under ss. 15 and 16  of the  Act,  would,  therefore, arise  if  any  devolution  of interest took place during the pendency of the suit. For  the purpose of determining the present controversy,  we proceed  on  the assumption that the mutation had  not  been made within six months as prescribed by s. 15, and that this defect  affected the entire interest in the tenure in  spite of  the fact that the two-thirds interest  which  originally belonged  to Satya Jiban’s brothers, came to the  plaintiffs as  a  result  of  the compromise  in  the  partition  suit. Section  16 as it stands after the amendment by  the  Bengal Act  IV  of  1928, does not impose an absolute  bar  on  the recovery  by suit of the arrears of rent.  The bar is  there only  "  until  the duties imposed upon him  (that  is,  the plaintiffs) by s. 15, have been performed." Now, s. 16  does not  speak of any time-limit.  It only speaks of the bar  to the  recovery  of the arrears until the performance  by  the landlord  of the duty of giving notice of the succession  or getting  mutation made on the succession.  It was argued  on behalf  of  the appellant that the performance of  the  duty aforesaid  is inextricably bound up with the period  of  six months,  and  that the performance of the duty  beyond  that period, is no performance at all in the eye of law.  We  are not  impressed by this argument, and there are several  very good reasons for holding to the contrary.  The provisions of s. 15 are meant not only for the benefit of the landlord  or of  the inferior tenant, but of the  intermediate  landlords also, that is to say, the 233 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-pataidar.  Those provisions  also  ensure that the rightful persons entitled to the durpatni interest, get themselves mutated in the superior landlord’s office, so that  the inferior tenants may know who their new  landlords 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 Collectorate 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, in  s.  16, there  is no indication of time-limit.  On the  other  hand, there is an indication to the contrary in so far as the last clause  quoted  above,  provides that the  bar  against  the recovery  by suit of any rent payable 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 clause, and the penalty should not be extended  by implication.  If the legislature  had  intended that  the penalty should operate for all times if  the  duty

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were  not performed within the time specified in s. l5,  the legislature   would  have  used  the  words  "  within   the prescribed  time "; or some such words.  Instead  of  laying down  such  a  time-limit,  the  legislature  has,  by   the amendment  aforesaid 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 30 234 the  failure  on  the  part of the  landlord  to  serve  the requisite  notice or to get the necessary mutation  effected within  six  months,  has  .-he effect  of  wiping  out  the landlord’s  right to receive rent.  There may be rulings  to the contrary, but this Court has to resolve the  controversy on  the  language of the relevant sections of  the  statute, quoted above.  That language does not clearly indicate  that the  result contended for on behalf of the  appellant,  must necessarily  ensue  on his making a default  to  take  those necessary 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  patni  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 durpatnidar or  other grades  of tenants in the process of  sub-infeudation.   The 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 had to indicate a time by way of laying down the ordinary procedure for taking the steps indicated in s.  15. Six  months’  period was deemed by the legislature to  be  a sufficiently  long period to enable 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  prescribed 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 itself is  disputed,  and  the controversy  may take some years to get determined  finally. It cannot be reasonably 235 suggested that because -the requisite notice or the mutation has not been given or effected within the prescribed  period of  six months, the landlord’s right to recovery‘  of  rent, disappears.   That could not have been the intention of  the legislature.   Again,  it  may easily be  supposed  that  an honest  tenant  goes to his new landlord and pays  him  rent hand to hand, even though there has been no such step  taken within the time as contemplated by s. 15.  It cannot be said that such a payment of rent out of court, will not be recog- nized  by  a court, if and when a controversy about  such  a payment  were  to  arise.   In  this  way  instances   maybe 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 between the patnidar and  his  tenant,

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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  delaying 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  not  the effect of absolutely depriving the landlord of his remedy by suit for all times; he may recover through court, of course, subject   to  the  law  of  limitation.   In  our   opinion, therefore, acceptance of the appellant’s arguments would  be nothing  more  than " piling  unreason  upon  technicality", which no, court of justice can countenance. In view of these considerations, it must be held that  there is  no merit in this appeal which is, accordingly  dismissed with costs.                                         Appeal dismissed. 236