Haranmoyee Debi v. Satchidananda Bhattacharjya — 1948 DIGILAW 5 (CAL)

JUDGMENT Chakravartti, J. - The only questions involved in this appeal are whether Respondent No. 6 was entitled to make a deposit u/s 170(3) of the Bengal Tenancy Act and if he was not, whether the deposit made jointly by him and Respondent No. 4 was a valid deposit. The Courts below have answered the first question in the affirmative and consequently, had no occasion to consider the second. 2. The facts are simple and all admitted. It appears that the Appellant, Haranmoyee Debi, holds a raiyati holding, under which there is an under-raiyati held by Respondents Nos. 1 to 5. It is not an under-raiyati with a right of occupancy. With respect to that under-raiyati holding, the Appellant brought a, suit for rent and in that suit, Respondent No. 6, Shisir Kumar Bhattacharjya, was added as a party on his own application, on the footing that he claimed to have purchased the interest of Respondents Nos. 1 to 3. Ultimately, the suit was dismissed as against Respondent No. 6 on the finding that the purchase made by him was not binding on the Appellant and there was no relationship of landlord and tenant between the parties. As against the remaining Respondents, the suit was decreed on December 20, 194-3. Thereafter, the Appellant put the decree into execution and an order was made for sale of the under-rdiyati holding, fixing August 18, 1944, as the date of sale. On August 14, an application was made by Respondent No. 4, Satchidananda Bhattacharjya, on behalf of himself "and others," asking for leave to deposit the entire amount claimed and praying that the execution case might, on acceptance of the deposit, be dismissed on full satisfaction. The vakalatnama filed by the pleader, who moved this application, was one executed by Respondents Nos. 4 and 6. The Court granted provisional leave to deposit the amount, and as the chaldn shows, a deposit was made on August 17, on behalf of those two Respondents. By an application filed on August 18, the Appellant challenged the validity of the deposit and submitted that, since the persons on whose behalf the deposit had been made included Respondent No. 6, a stranger to the decree, the deposit could not be valid and effective. By an application filed on August 18, the Appellant challenged the validity of the deposit and submitted that, since the persons on whose behalf the deposit had been made included Respondent No. 6, a stranger to the decree, the deposit could not be valid and effective. The Court fixed a date for the hearing of this application, but the Appellant, being absent on that date, the deposit was accepted and the execution case disposed of on full satisfaction. 3. The Appellant then preferred an appeal, which came to be heard by the learned First Subordinate Judge of Howrah and was dismissed. The appellate Court held that, although Respondent No. 6 might have failed to get his interest recognised in the rent-suit, he was still a person whose interests would be affected by the sale and accordingly, he had a locus standi to make a deposit u/s 170(5) of the Bengal Tenancy Act. The Court held further that, in any event, the deposit had been made by Respondent No. 4 as well, as to whose locus standi there could be no question and lastly, that the Appellant could not be prejudiced in any manner by the acceptance of the deposit, inasmuch as, by reason of the clear provision contained in Section 170(4), withdrawal of the amount would not operate as an admission of the transferability of the holding or a recognition of the interest of Respondent No. 6. It is against this order of the lower appellate Court that the present Second Appeal has been preferred. 4. Mr. Mookerjee, who appeared on behalf of the Appellant, explained that his client was not anxious to acquire the under-raiyati holding and that her only anxiety was to prevent Respondent No. 6 from acquiring any interest in it against herself. It had been twice held by this Court that, even after the amendment of 1928, Ch. XIV of the Bengal Tenancy Act, which comprised Section 170, did not apply to sales of under-raiyati holdings for arrears of rent, where there was no right of occupancy and if, in the present case, Respondent No. 6 was allowed to make a deposit, he might himself turn round in future and contend that his deposit had actually been made under the general law and therefore, acceptance of it amounted to a recognition of his interest, as laid down in a series of decisions of this Court. Mr. Mr. Mookerjee submitted that such a contention, if put forward by Respondent No. 6, would, in all probability, be upheld and his client, not being able to invoke Sub-section (4) of Section 170, would have Respondent No. 6 thrust upon her as a tenant. It was therefore necessary for her to resist the deposit sought to be made by Respondent No. 6 and this she did on two grounds: (i) inasmuch as Section 170 of the Bengal Tenancy Act did not apply to the case at all, Respondent No. 6 had no right to make a deposit under Sub-section (3) of that section, although he might be a person whose interests were affected by the sale and (ii) since Respondent No. 6 had some share in the deposit made, there was no full and sufficient deposit by Respondent No. 4 and the learned Judge had erred in upholding the deposit as one made, in any event, by that Respondent. 5. The first question raised by Mr. Mookerjee is concluded in his favour by two single-Judge decisions of this Court, with which I respectfully agree. In the case of Biswanath Rai v. Manik Sardar (1935) 39 C.W.N. 652, R.C. Mitter J. had to consider whether an under-raiyat under an under-raiyat had a right to make a deposit u/s 170(5) of the Bengal Tenancy Act, when the superior under-raiyati, brought to sale for arrears of rent, was not one held with a right of occupancy. In the case of Abdus Samad Molla v. Abdul Gofur Molla ILR (1941) 1 Cal. 409, decided by Mukherjea J., the under-raiyati concerned was one held with a right of occupancy, but the question was, whether, the sale having been made in execution of a rent-decree obtained before the amending Act of 1928, the purchaser could annul incumbrances u/s 167. In both the cases, the decision turned on whether Ch. XIV of the Act applied to sales of under-raiyati holdings in execution of rent decrees. It was held that, while before the amending Act of 1928, Ch. XIV did not apply to the execution sale of any under-raiyati holding for arrears of rent, the effect of the amendment was only to make the Chapter applicable to sales of under-raiyati holdings with a right of occupancy and that also where the decree concerned was obtained after the amendment. XIV did not apply to the execution sale of any under-raiyati holding for arrears of rent, the effect of the amendment was only to make the Chapter applicable to sales of under-raiyati holdings with a right of occupancy and that also where the decree concerned was obtained after the amendment. Holdings held without a right of occupancy still remained outside Ch. XIV. 6. Mr. Bagchi, who appeared for Respondents Nos. 4 and 6, contended that all that Ch. XIV required was that there should be a "holding" and a sale for arrears of rent and since, by the amending Act of 1928, the definition of "holding" had been enlarged, so as to embrace holdings of under-raiyats, there was no longer any reason for excluding sales of such holdings from the operation of Ch. XIV. He referred to the language of Section 159, which spoke of a "holding ... sold in execution of a decree for "arrears due in respect thereof" and that of Section 170 itself, which spoke of "a sale of a ... holding in execution of such a decree." As regards the new Section 48G, which expressly made under-raiyati holdings with a right of occupancy subject to the provisions of Section 65 and Ch. XIV, his contention was that the effect of the section was not to exclude other under-raiyati holdings from the operation of the chapter, but only to attach to under-raiyati holdings of the former class the special incidents and privileges of an occupancy right, such as protection from annulment as provided for in Section 160(d). 7. I am unable to accept the contention of Mr. Bagchi. As regards the argument based on the language of Sections 159 and 170, it appears that an identical argument was advanced in the cases referred to above and it was, if I may say so with respect, rightly repelled. The learned Judges pointed out that Section 159 was to be read not merely with the enlarged definition of "holding", but also with the rest of the sections of Ch. XIV and indeed with the rest of the Act--and so read, it would furnish no ground for holding that Ch. XIV was now applicable to execution-sales for arrears of rent of all under-raiyati holdings. XIV and indeed with the rest of the Act--and so read, it would furnish no ground for holding that Ch. XIV was now applicable to execution-sales for arrears of rent of all under-raiyati holdings. It is unnecessary for me to repeat the details of the reasoning by which this conclusion was reached, but I may indicate one broad ground on which, in my opinion, Mr. Bagchi's contention must be negatived. Ordinarily, when some property of a judgment-debtor is sold in execution of the decree against him, only his right, title and interest can be sold and can pass, for the decree makes him alone liable to pay. The property itself, involving or carrying with it the rights of other persons, can be sold only when some special provision of law authorises such sale. Section 65 of the Bengal Tenancy Act contains such a provision and enacts that the rent of a tenure or holding shall be a first charge thereon and the tenure or holding shall itself be liable to sale in execution of a decree for the rent thereof. But the section is limited to tenancies held by persons who are either permanent tenure-holders or raiyats holding at fixed rates or occupancy raiyats and so far as Section 65 goes, tenancies held by other classes of tenants recognised by the Bengal Tenancy Act remain subject to the general law contained in the Code of Civil Procedure. In their case, an execution sale of the lands of the tenancy for arrears of rent would only pass the right, title and interest of the judgment-debtor. Chapter XIV of the Bengal Tenancy Act, which deals with sales, by which the tenure or holding itself passes, is obviously not concerned with sales of such tenancies but only with sales of tenancies covered by Section 65, i.e., sales of permanent tenures, raiyatis held at fixed rates and occupancy raiyatis. As the Privy Council pointed out in the case of Jitendranath Ghosh v. Manmohan Ghosh (1930) ILR 58 Cal. 301 : L.R. 57 IndAp 214, it is only arrears of rent charged by Section 65 upon the tenure or holding that can be realised in execution by the sale thereof and Ch. XIV of the Act does not purport to enlarge or restrict this right, but only provides the machinery for working it out. It follows that Ch. 301 : L.R. 57 IndAp 214, it is only arrears of rent charged by Section 65 upon the tenure or holding that can be realised in execution by the sale thereof and Ch. XIV of the Act does not purport to enlarge or restrict this right, but only provides the machinery for working it out. It follows that Ch. XIV cannot be held to apply to any sales which are not sales in execution of decrees covered by Section 65 and cannot be construed without reference to the section. But Section 65, taken by itself, does not cover under-raiyati holdings and the new Section 48G brings within its purview only under-raiyati holdings held with a right of occupancy. Under-raiyatis held without such right are thus not within Section 65 and there is no other provision in the Act which either makes the rent of such holdings a charge thereon or provides that the holding itself can be sold in execution of a decree for rent in respect thereof. Chapter XIV of the Act, which deals with sales passing the holding or tenure itself, does not therefore apply to a sale of an under-raiyati holding without a right of occupancy in execution of a decree for rent. 8. If the above be borne in mind, the argument of Mr. Bagchi, based on the language of Sections 159 and 170, will at once be seen to be without force. It is true that both use the word "holding," and "holding," as now defined, embraces the holding of an under-raiyat. But Section 159 speaks of a case "where a holding is sold" and Section 170 speaks of an order "for the sale of a holding." Clearly, the sections contemplate holdings which can be sold in execution of a decree for rent and do not contemplate holdings, such as the holding of an under-raiyat without a right of occupancy, which cannot be so sold and in respect of which only the right, title and interest of the tenant can be sold in execution of a rent decree. 9. Mr. Bagchi would gain nothing by establishing that Section 48G only conferred on under-rayati holdings with a right of occupancy, the advantages of an occupancy right and had not the effect of excluding other under-raiyati holdings from the operation of Ch. XIV. 9. Mr. Bagchi would gain nothing by establishing that Section 48G only conferred on under-rayati holdings with a right of occupancy, the advantages of an occupancy right and had not the effect of excluding other under-raiyati holdings from the operation of Ch. XIV. Assuming he was right, he had still to establish that other under-raiyati holdings were in the contemplation of Ch. XIV at all. For the reasons already given, such a view of the scope of Ch. XIV is not possible. On the other hand,, in view of the judicial opinion held before the Amending Act of 1928, that Ch. XIV did not apply to any under-raiyati holding, the specific provision made in Section 48G clearly indicates acceptance of that opinion by the legislature and the special provision made in favour of under-raiyati holdings with a right of occupancy implies exclusion of other under-raiyati holdings. 10. Coming back to the facts of the case, since Ch. XIV does not apply, Respondent No. 6 had no right to make a deposit u/s 170(5), although he might be a person whose interests were affected by the sale. Nor was he entitled to make a deposit under the Code of Civil Procedure, for the Code does not authorise such a person to make a deposit before the sale is held. The deposit, so far as made by Respondent No. 6, must, therefore, be rejected. As regards Respondent No. 4, he too had no right to make a deposit u/s 170(5), since the section does not apply, but as a judgment-debtor, he had always the right to pay off the decretal amount; and although the Code contains no provision corresponding to Section 170(5), he was entitled to pay the amount into the executing Court under the provisions of Order XXI, Rule 1(1)(a). It is, however, not possible to credit him with the entire amount of the deposit, because he made it jointly with Respondent No. 6. There was thus no sufficient deposit by a competent person on the basis of which the order for sale could be recalled. I enquired of Mr. Bagchi, who was appearing for both Respondent No. 4 and Respondent No. 6, whether he would agree to the latter being eliminated and let the deposit be treated as made by the former alone. He replied in the negative. In the circumstances, the position is that neither of Mr. I enquired of Mr. Bagchi, who was appearing for both Respondent No. 4 and Respondent No. 6, whether he would agree to the latter being eliminated and let the deposit be treated as made by the former alone. He replied in the negative. In the circumstances, the position is that neither of Mr. Bagchi's clients was entitled to make a deposit u/s 170(5) and it is not possible to treat the whole or any particular part of the deposit as a payment into Court by Respondent No. 4. The entire deposit must therefore be rejected. 11. In the result, the appeal is allowed. The orders of both the Courts below are set aside and the deposit made by Respondents Nos. 4 and 6 is rejected. The case is remitted to the Court of first instance where the execution will now proceed. The Appellant will have the costs of both this appeal and the appeal to the lower appellate Court. Respondents Nos. 4 and 6 will be entitled to withdraw the amount deposited by them. 12. This appeal was heard on January 6 last, when judgment was reserved. Today, when the judgment was about to be delivered, Mr. Bagchi asked for an opportunity to address a further argument and referred in particular to the decision in the case of Ram Lal Sukul v. Bhela Gazi (1910) ILR 37 Cal. 709 which, he contended, showed that Ch. XIV of the Bengal Tenancy Act was applicable to sales of under-raiyati holdings. Mr. Bagchi contended further that a series of sections of the Act, beginning with Section 146A, would lend further support to his contention. 13. Having considered the further argument of Mr. Bagchi, I find no reason to alter the judgment I had already prepared. The reported case cited was decided at a time when the two Privy Council decisions in the cases of Forbes v. Maharaj Bahadur Singh (1914) ILR 41 Cal. 926 : L.R. 41 IndAp 91 and Jitendranath Ghosh v. Manmohan Ghosh (supra) had not been decided and the relation of Ch. XIV to Section 65 of the Act had not been fully and finally explained. In view of the above decisions of the Privy Council, it must now be held that Ch. 926 : L.R. 41 IndAp 91 and Jitendranath Ghosh v. Manmohan Ghosh (supra) had not been decided and the relation of Ch. XIV to Section 65 of the Act had not been fully and finally explained. In view of the above decisions of the Privy Council, it must now be held that Ch. XIV of the Bengal Tenancy Act only refers to sales under which the holding OR tenure itself can pass, that is to say, sales in execution of rent decrees in respect of tenancies covered by Section 65. The reported case cited deals with a non-occupancy raiyati, but I may concede that the principle laid down therein would apply to under-raiyati holdings as well, inasmuch as both are outside Section 65, if Ch. XIV could be held to be applicable to non-occupancy raiyatis. 14. As regards the argument based upon a number of sections beginning with Section 146A, it is only necessary to state that the argument rested solely upon the use of the word "holding" and the reference to Ch. XIV. I am unable to see how the mere use of the word "holding" in the sections referred to by Mr. Bagchi can assist him in the present case. The word "holding" has been used in Ch. XIV itself and I have already explained why the mere use of the word is not sufficient to attract under-raiyati holdings. As regards references to Ch. XIV, they must be understood as limited to cases where the chapter otherwise applies. 15. The appeal is disposed of in the manner already stated. 16. Leave to appeal under Clause 15 of the Letters Patent is asked for and is refused.