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1908 DIGILAW 64 (CAL)

Hemendra Nath Mukerji v. Kumar Nath Roy

1908-02-21

body1908
JUDGMENT Maclean, C.J. - This is an appeal by the Plaintiffs. The Subordinate Judge gave judgment against Defendant No. 1 only: the Plaintiffs contend that there ought to have been a judgment against all the Defendants. The solution of this question depends, admittedly, upon the effect of a registered deed dated the 2nd December 1893, by which the Defendants Nos. 2 to 7 surrendered all their interests in the durputni and seputni in favor of Defendant No. 1, who subsequently, as has been pointed out in the other appeal, sold them to Bidu Bhusan Biswas. By that deed, which is called a deed of disclaimer, the Defendants Nos. 2 to 7 relinquished all their right, title and interest and claim in the properties in favor of Defendant No. 1, who was to remain in possession and was to be entitled to sell them. Defendant No. 1 was to pay the debts mentioned in the deed : Defendants Nos. 2 to 7 were to be under no liability for those debts. It is contended for the Plaintiffs that this deed is not a transfer within the meaning of sec. 12 of the Bengal Tenancy Act. We think, upon its true construction, that it was. It is true it is not stamped with an ad valorem stamp, but only as a release, and that the landlord's fee was not paid. But it was registered, and the fact that the landlord's fee was not paid does not render the transfer invalid (see sec. 1, Bengal Act, No. I of 1903) and it was registered in Book I, vol. 25 under sec. 51 of the Indian Registration Act. Sec. 11 deals with the case of a transfer of a share in a permanent tenure. The transfer is complete as soon as the document is registered. Kristo Bulluv Ghose v. Kristo Lal Singh ILR 16 Cal. 642 (1889) and Chintamoni Dutt v. Rash Behari Mondal ILR 19 Cal. 17 (1891). It has not been contended for the Appellants that, if the deed operated as a registered transfer, Defendants Nos. 2 to 7 would be liable for any subsequent payments to be made under the kabuliyat. Moreover the Plaintiffs were aware of this transfer in 1899 and after its execution the Plaintiffs never asked for any rent from the Defendants Nos. 2 to 7. 2 to 7 would be liable for any subsequent payments to be made under the kabuliyat. Moreover the Plaintiffs were aware of this transfer in 1899 and after its execution the Plaintiffs never asked for any rent from the Defendants Nos. 2 to 7. They seem further to have recognized the transfer as a valid one for they certainly recognized Bidu Bhusan Biswas as the purchaser direct from Defendant No. 1. For these reasons we think the appeal must be dismissed with costs, bearing fee, five gold mohurs, payable to Babu Nalini Ranjan Chatterjee's client. Coxe, J. I agree.