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1920 DIGILAW 388 (CAL)

Amar Chand Roy v. Prasanna Dasi

1920-07-23

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JUDGMENT Mookerjee, C.J. - The substantial question in controversy in this appeal is whether the term "transfer" in cl. (a) of sec. 18 of the Bengal Tenancy Act includes a lease. Mr. Justice Newbould has answered this question in the affirmative on the authority of the decision of this Court in the cases of Hari Mohan Pal v. Atul Krishna Bose 19 C.W.N. 1127 (1913) and Ram Charan Bairagi v. Udoy Bairagi 48 I.C. 515. We have been pressed to hold that those decisions are erroneous and our attention has been drawn to the judgment in the case of Parushulla Sheikh v. Sital Chandra Des 19 C.W.N. 1110 (1914) where there is a dictum to the effect that the transfers contemplated in secs. 11 and 18 of the Bengal Tenancy Act are transfers out and out and not partial transfers by way of sub-leases. We have arrived it the conclusion that the view taken by Mr. Justice Newbould is correct and that there is really no room for serious argument in this matter. The decision in the case of Hari Mohan Pal v. Atul Krishna Bose 19 C.W.N. 1127 (1913) proceeded on the basis that secs. 18 and 85 should be read together and that sec. 85 should he read as if the words "subject to the provisions hereinbefore contained" had been inserted therein. Mr. Sen has strenuously contended that this is not the proper way to interpret statutory provisions which are repugnant and that we should either hold that the term "transfer" in sec. 18 does not include a "lease" or adopt the view that sec. 85 repeals the provisions of sec. 18 with regard to a lease. In our opinion, there is no foundation for either branch of this contention. 2. Sec. 18 provides that "a raiyat holding at a lent or rate of rent, fixed in perpetuity, shall be subject to the same provisions with respect to the transfer of and succession to his holding as the holder of a permanent tenure." The, provisions relating to the transfer of and succession to a permanent tenure are contained in secs. 11 and 12. Sec. 11 provides that "every permanent tenure shall, subject to the provisions of the Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable property. 11 and 12. Sec. 11 provides that "every permanent tenure shall, subject to the provisions of the Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable property. It is manifestly impossible to contend with any semblance of plausibility that the term 'transfer' in sec. 11 does not include a lease." On the other hand, if we contrast sec. 11 with sec. 12, it becomes plain that where the legislature intended to have a provision not applicable to all kinds of transfer, they specified the kind of transfer they had in view; for instance, sub-sec. (7) of sec. 12 refers to a transfer by sale, gift or mortgage. We are consequently unable to accept as well-founded the dictum in the case of Parushulla Sheikh v. Sital Chandra Das 19 C.W.N. 1110 (1914) as to the meaning of the expression "transfer" either in sec. 18 or sec. 11. There remains the second branch of the contention of Mr. Sen that secs. 18 and 85 are contradictory, and that consequently the latter section should prevail. In support of this view, reference has been made to the observations of Mr. Justice Banerjee in the case of Assanulla Khan Bahadur v. Tirthabasini ILR 22 Cal. 680 at p. 691 (1895) Mr. Justice Banerjee, however, does not lay down the principle that where there are two impugnant clauses in a statute, effect must always be given to the subsequent one. On the other hand, he refers to the very important principle that if there are two provisions in a statute, one of which is of a special character and the other of a general character, the special provision qualifies the general one. The rule of interpretation applicable in such circumstances is well-established, and is supported by cases of the highest authority. Where two co-ordinate sections ate apparently inconsistent, an effort must he made to reconcile them. [Ebbs v. Boulnois L.R. 10 Ch. App. 479 (484) (1875)]. If this is impossible, the later will generally override the earlier: [Wood v. Riley L.R. 3 C.P. 26 (1867)] but a particular enactment, whenever found, must be construed strictly as against a general provision. [Churchill v. Crease 5 Bingham 177 (180) (1828), De Winton v. Brecon Corporation 26 Beav. 533 (543) (1859) and Pretty v. Sally 26 Beav. 606 (1859)]. If this is impossible, the later will generally override the earlier: [Wood v. Riley L.R. 3 C.P. 26 (1867)] but a particular enactment, whenever found, must be construed strictly as against a general provision. [Churchill v. Crease 5 Bingham 177 (180) (1828), De Winton v. Brecon Corporation 26 Beav. 533 (543) (1859) and Pretty v. Sally 26 Beav. 606 (1859)]. In the case before us, there is no doubt an apparent inconsistency between secs. 18 and 85 : but it is easy to reconcile them in the way we have suggested, namely, that sec. 85 should be read as if it contained the introductory words, "these provisions are to be taken subject to the provisions hereinbefore contained." But if this mode of interpretation is considered objectionable, it is plain that sec. 18 refers to a particular class of tenancies, whereas sec. 85 lays down the general rule. Consequently, the particular provisions must be taken to qualify the general provision : and, this is the view which was adopted in Hari Mohan Pal v. Atul Krishna Bose 1913 C.W.N. 1127 (1913). We, accordingly, affirm the judgment of Mr. Justice Newbould and dismiss the appeal with costs. Fletcher, J. I agree.