Rai Jogendra Chandra Ghosh Bahadur Vs Bhawani Charan Law and Others

Mitter, J.@mdashBy an indenture dated 13th September 1907, Maharaj Kumar Kristo Das Law and others granted a permanent tenure comprising three Sunderbans lots, Madhabpore, Durgapore and Moipit to Rai Jogendra Chandra Ghose Bahadur and his brothers. The lessees agreed to pay Government revenue and cesses and the sum of Rs. 5000 as rent to the lessors anually, in the following manner, namely, Rs. 1900 for Madhabpore, Rs. 1200 for Durgapore and Rs. 1900 for Moipit, in two kists--April and October. Rent was made payable at the lessors'' office at No. 8, New China Bazar Street, Calcutta. There were a number of covenants and conditions which the lessees agreed to observe. As security for due performance of the covenants and conditions the lessees deposited with the lessors Port Trust Debentures of the face value of Rs. 84,000 duly endorsed in favour of the latter. The lessees had the option of getting back those debentures wholly or in part by giving with the consent of the lessors security in zemindary property or landed property situated in Calcutta. The lessees exercised that option. They left Port Trust Debentures of the face value of Rs. 6000 as security and took back the rest by giving security for Rs. 78,000 in zemindary property. Those Port Trust Debentures of the face value of Rs. 6000 are still with the lessors. The lessors'' right has devolved upon the respondents. They or their father, Chandi Churn Law, (hereafter called "the Laws") were the lessors at all material times. As a result of partition with his brothers, Rai Bahadur Jogendra Chandra Ghose, the appellant before us, got the leasehold interest, namely, the permanent tenure, in all the said three properties. His interest in lot Durgapore has been sold away in execution of a mortgage decree passed against him. It has been purchased by a third party who has been recognised by "the Laws" as their tenant of lot Durgapore. His leasehold interest in the two remaining lots, namely, lot Madhabpore and lot Moipit would hereafter be called "the tenure." The respondents in their turn hold two under-tenures under the appellant within lot Madhabpore. The total annual rent and cesses payable by them to the appellant for those two under-tenures are Rs. 1335-10-9 and Rs. 90, respectively. They acquired those two under-tenures in 1935. The appellant failed to pay rent of "the tenure" to "the Laws" with the result that the latter instituted five rent suits against him and got decrees for successive periods. Those suits cover the period from kist October 1929 to kist April 1938. They ("the Laws") also did not pay to the appellant rent of their under-tenures, with the result that the appellant filed two suits for rent and obtained decrees. The claim decreed in those two rent suits was up to 1343 B.S.

2. "The Laws" put three of their decrees in execution, In Rent Execution Case No. 24 of 1936, they applied for execution under Chap. 14, Ben. Ten. Act of their "decree in Rent Suit No. 13 of 1929, which was for Rs. 37,000 odd, by attachment and sale of "the tenure." In Rent Execution case No. 39 of 1938, which related to their decree in Rent Suit No. 2 of 1932, which was for Rs. 9391, they prayed for a set-off against the decrees for rent obtained by the appellant against them, and in Rent Execution case No. 5 of 1939, they applied for execution of their decree in Rent Suit No. 815 of 1939, which was for Rs. 729, by attachment of the appellant''s moveables. The appellant had in the meantime instituted a suit against "the Laws" in the Original Side of this Court for certain declarations concerning those rent decrees. "While that suit and the above-mentioned execution proceedings were pending, the parties entered into a compromise (herein called the compromise). The terms were embodied in a petition dated 4th January 1940, which is printed at p. 83 of the paper book. On the construction of para. 4(a) of that petition the parties differ. The effect of paras. 1 and 2 thereof is that if the appellant paid Rs. 25,000 to "the Laws" either in a lump and in certain instalments within a certain time the latter would convey to the appellant their proprietary right and their right to renewal and all other rights in the three lots Madhab-pore, Durgapore and Moipit and would give up their claims under the aforesaid five rent decrees as also all their claims for subsequent rent payable by the appellant for "the tenure." Paragraph 3 required the withdrawal of the appellant''s declaratory suit. We leave out for the present the provisions of para. 4(a), as the effect of that paragraph (on which the parties differ) is a material point in appeal. The appellant, however, failed to pay the said sum of Rs. 25,000. On 12th July 1940 "the tenure" in arrear was sold in Kent Execution case No. 24 of 1936 and was purchased by "the Laws" themselves, for Rs. 37,000 odd. The sale was confirmed on 8th June 1941, after an unsuccessful attempt by the appellant to set it aside. As the title of auction purchasers, at sales held under chap. 14, Ben. Ten. Act, accrues from the date of the confirmation of the sale (Section 159(2), Ben. Ten. Act), the appellant was freed from the covenants of the lease from that date. This is not, nor can it be, disputed by the respondents.

3. On 8th June 1942, the appellant filed his suit in the Original Side of this Court against "the Laws." In his plaint he prayed for three reliefs: (1) for the return of the Port Trust Debentures of the face value of Rs. 6000 re-endorsed to him; (2) for the rent of the two under-tenures held by "the Laws" under him for the period 1344 to 1346 B.S., (April 1937 to April 1940) amounting with interest to Rs. 6869-11-3; and (3) damages (RS. 98,702) for alleged fraud, as a result of which the tenure according to him was sold at a very low price. The third prayer was abandoned by him before our brother Sen J. who has dismissed the whole suit. He disallowed the first prayer on the merits, and the second on the ground that the Original Side of this Court has no jurisdiction to entertain a suit for rent for the said under-tenures as the lands thereof are situate in the district of 24-Parganas and so outside the territorial jurisdiction of the Original Side of this Court. On a construction of para. 4(a) of the petition of compromise he further held that at any rate the appellant could not have got a decree for rent for more than 2 months and 11 days of 1346 B.S., if the point of jurisdiction had been answered in his favour. He did not, however, express any opinion on the (sic) of set-off pleaded by "the Laws". The plaintiff has preferred this appeal. It is not the case of the parties that the plaintiff has broken any covenant in the lease, save and except the covenant to pay rent. He ceased to have any interest in "the tenure" from the date of the confirmation of the sale at which "the Laws" purchased the said tenure in Bent Execution case No. 24 of 1936, that is, from 8th June 1941. He is therefore under no liability to pay rent for "the tenure" that would fall due after that date. Assuming for the present that all the rent decrees that "the Laws" had obtained against him stood discharged by the terms of the compromise, he would prima facie be liable for the rent of that tenure from kist October 1938 to kist April 1941, for the last of the rent suits instituted by "the Laws" covered the period up to kist April 1938. So "the Laws" would be entitled to retain the Port Trust Debentures for the purpose of appropriating its sale proceeds in part satisfaction of their claim for rent for that period. As the Port Trust Debeutures have been endorsed in their names they would be able to sell them by endorsement. The help of the Court Would not be necessary in selling them. Section 168A(1) (a), Bengal Tenancy Act, would not stand in their way. The plaintiff-appellant''s first prayer can only succeed if his liability for rent for the period above-mentioned has been discharged by reason of the provisions of Section 168A(1) (b) of the said Act.

4. This raises two questions, namely, (1) if that clause applies where the purchaser is the landlord decree-holder himself; and (2) that assuming that it applies to such a purchaser, whether it is attracted to the case before us, seeing that the sale of the tenure was held at a time, when Section 168A, which had been introduced into Bengal Tenancy Act by Act 18 of 1940, had not come into operation.

5. I. There are two reported cases on the point. The first is the case in 48 O.W.N. 210 where a Division Bench held that Section 168A(1) (b) applies to the landlord decree-holder purchaser also. The point is discussed and reasons are given by both the learned Judges who delivered separate judgments. In the second case, Sm. Swarnamonjuri Dassi, Excutrix to estate of Babu Broja Lal Seal Vs. Fakir Chandra Karar and Others, no reasons are given, the earlier case being simply noticed and followed. The reasons given in the first mentioned case must therefore be examined. No exception can be taken to the proposition laid down in that case namely that Clause (b) of Section 168A (i) was intended for the benefit of both the landlord decree-holder and the tenant judgment-debtor. The further observation of Mukherjee J. that "the intention of the Legislature was, in the first place, to exonerate the tenant from all further liabilities when the entire tenure or holding was sold in execution of a rent decree" is, however, not strictly correct, for where the sale proceeds of the tenure or holding in arrear is not sufficient to cover the decretal amount, the landlord decree-holder can realise the balance by taking out execution against the tenant judgment-debtor''s moveable property: Anil Kumar Basu Vs. Roy Biman Behari Mitra for Self and Executor to Estate of Roy Banku Behari Mitra and Others, and/or by having a receiver appointed over his moveable and immovable properties: Sudhir Krishna Ghose and Another Vs. Satish Chandra Hui and Others, in those cases where Clause (b) of Section 168A (1) would be inapplicable. Where, however, that clause would be applicable the tenant judgment-debtor would be completely exonerated from all liability, not only for the balance of the decretal amount, if any, but also from the further liability to pay rent from the date of the institution of the rent suit in which the decree for rent put into execution against the tenure or holding in arrear was passed up to the date of the confirmation of the sale. The aforesaid observation therefore by itself cannot in our judgment justify the conclusion that el. (b) includes the landlord decree-holder purchaser.

6. No exception can be taken to another proposition laid down in that case, namely that the same word used in different parts of the same statute must prima facie be taken to have the same meaning, but this proposition is subject to an important qualification, namely, that the scope of a particular section in which that word occurs or the context may require a different meaning. The fact that the word "purchaser" in other sections of the Bengal Tenancy Act includes a stranger purchaser as well as the landlord decree-holder purchaser is therefore not conclusive on the point we are considering, nor is the argument that the word "purchaser" means every purchaser, whoever he may be, whether a stranger or the decree-holder, for, there is another rule of construction that the scope of the legislation or the context may require the ordinary meaning of a word to be enlarged or narrowed down. We are not also inclined to agree with the observation that Sub-section (3) of Section 168A would lend any support to the conclusion reached in Phani Bhusan Mukherjee Vs. Purna Chandra Bagchi and Others, . That sub-section is complementary to Clause (b) of Sub-section (1) and its meaning is that in those cases where the purchaser is required by Clause (b) of Sub-section (1) to put in the balance of the decree, if any, and the subsequent arrears of rent mentioned in that clause, the sale would not be confirmed till those amounts have been deposited in the executing Court.

7. In Phani Bhusan Mukherjee Vs. Purna Chandra Bagchi and Others, Pal, J. noticed those two qualifying rules, namely, that the same word used in different parts of the same statute may have different meanings in different parts and that the ordinary meaning of a word may have to be narrowed down. He further recognised, though in an implied way, that if Clause (b) of Section 168 A (1) had created a new obligation, the word purchaser used therein would not have the same meaning as in other sections of the Bengal Tenancy Act and so would not include the landlord decree-holder purchaser, by reason of the fact that there would be no meaning in requiring a person to pay to himself, but held that that clause created no new liability. According to him it merely shifted the liability from one, namely, the tenant judgment-debtor, to another, namely, the purchaser at the court sale. In our judgment that is not what Clause (b) in substance enacts. Before Section 168A was enacted, as the title of the auction-purchaser accrued at the confirmation of the sale, the liability of the tenant judgment-debtor to pay rent continued up to that date. If the price fetched by the sale of the tenure or holding in arrear exceeded the amount of the decree from the surplus sale proceeds, which belonged to the tenant judgment-debtor, was to be paid the landlord decree-holder''s claim for rent that had accrued due from the date of the institution of the rent suit in which that decree under execution was passed till the date of the confirmation of sale, if the surplus was sufficient to cover the same, and if not sufficient the tenant judgment-debtor''s liability for that period could be enforced by having recourse to his other properties. Clause (b) of Section 168A (1) has made at least a stranger purchaser at the rent sale liable for that liability. It has thus created a new liability. Nor are we impressed by the argument that the exclusion of the landlord decree-holder purchaser from Clause (b) would give him an advantage over other bidders. If the value of the tenure or holding in arrear be more than the decretal amount and be such as to cover the arrears of rent for the period mentioned therein, there would be free bidding, and if a stranger outbids the landlord decree-holder the latter would get from the sale proceeds what was his just dues. If the landlord decree-holder himself became the purchaser, he would be entitled to take the surplus sale proceeds in satisfaction of the arrears for that period under the terms of Section 169(1) (c), Bengal Tenancy-Act. If, however, the value of the tenure or holding in arrear be less than the total sum of the decree and the arrears of rent for that period, a stranger is not likely to bid and the landlord decree-holder would have to purchase for his self-interest, for if he did not, there would be nobody else to purchase and the defaulting tenant would continue to be in possession without much anxiety.

8. On the other hand, if a construction be put upon el. (b) as has been put in 48 G.W.N. 210 the landlord decree-holder would incur a nett loss, which, in the view that has been taken by the Special Bench in Sudhir Krishna Ghose and Another Vs. Satish Chandra Hui and Others, of Clause (a) of Section 168A (1) the Legislature may not have intended, for, so far as the balance of the decree unrealised by the sale of the tenure or holding in arrear is concerned, (an item which is placed in Clause (b) on the same footing as subsequent arrears of rent) it is not so apparent that the landlord decree-holder could not have realised the same by attachment and sale of the tenant judgment-debtor''s moveables or by the appointment of a receiver over his other properties. Those methods of execution may not in many eases afford satisfaction to the landlord decree-holder by reason of the tenant judgment-debtor not having properties of that kind worth proceeding against, but still the right of the landlord decree-holder is there and may in some cases at least be worth enforcing. Clause (b) of Section 168A (1) appears to us to be based on the principle of compensation. As the landlord decree holder''s right to realise his decree for rent is fettered by Clause (a) of Section 168A (1), the Legislature thought it fit that he should not be put to loss and this was accomplished by creating a new liability on the purchaser, a liability which before the amendment by Act 18 of 1940, was exclusively the liability of the tenant judgment-debtor. In the view we are taking of the second point it is not necessary for us to pursue the matter further or to say positively that 48 C.W.N. 2101 has been wrongly decided but all we desire to say is that that decision cannot be tacitly followed and in a proper case the questions will have to be examined, may be, in the light of our criticisms.

9. II. In deciding this point we would proceed on the assumption that the landlord decree-holder-purchaser is included in Clause (b) of Section 168A (1). It is a well established proposition of law that in the absence of express words or necessary implication a statute which takes away or impairs vested rights acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already passed must be presumed out of respect to the Legislature to be intended not to have retrospective operation. The principle underlying this rule was formulated by Willes J. in Phillips v. Eyre (1871) 6 Q.B. 1, thus:

Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions, carried on upon the faith of the then existing law.

So far this Court is concerned, that rule was recognised by a Special Bench consisting of the Chief Justice and all the twelve puisne Judges of the time Jogodanund Singh v. Amritalal Sarkar (''95) 22 Cal. 767 (F.B.). This rule involves, as was observed by Lindley L.J. in Lauri v. Renad (1892) 3 Ch. 402: 61 L. J. Ch. 580 at p. 421,

another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.

10. In Reid v. Reid (1886) 31 Ch. D. 402 Bowen L.J. at pp. 408 and 409 of the report gave a more precise form to that consequential rule. He observed thus:

Now the particular rule of construction which has bean referred to, but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well known trite maxim omnis nova constitutio futuris forman imponere debet non practeritis, that is, that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section, which is to a certain extent retrospective, we ought nevertheless to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.

This is also what in effect Mookherjee J. laid down in Manjuri Bibi v. Akel Mahmud (''13) 191. C. 793 at p. 912. In the case before us the sale took place on 12th July 1940, before Section 168A had came into force. That section came into force on 9th January 1941. If Section 168A (1) (b) had not been there the purchaser would have the right by virtue of the acceptance of his bid on that date of the sale confirmed by paying the amount of his bid and nothing more. Clause (b), however, has imposed upon him a further liability of paying not only the balance, if due, of the decretal amount but also subsequent arrears upto the date of the confirmation of the sale. As that clause creates a new obligation on the purchaser and also interferes with his vested right to have the sale confirmed on payment of the price he had offered at the sale and nothing more, it can have no retrospective effect, and so will not apply to the respondents, as that clause has not by plain words or by necessary implication been made retrospective. Clause 1 (a) would not have applied, retrospectively as that clause impairs a vested right of the landlord decree holder, for it takes away his right which he had before Act 18 of 1940, to attach and sell other immovable property of the tenant judgment, debtor, but for Sub-section (2) of Section 168A. But on the rules formulated above Sub-section (2) would have no greater retrospective effect than what its language implies. As it deals only with Sub-section (1) (a), it cannot make Sub-section (1) (b) retrospective. On this view we hold that the liability of the appellant to pay subsequent rent that fell due up to the date of the confirmation of the sale of "the tenure" has not ceased by the sale of "the tenure." He is still liable to pay the rent for the period kist October 1938 to kist April 1940, which was not the subject-matter of any one of the five rent suits and the amount of those kists far exceeds the market value of the Port Trust Debentures of the face value of Rs. 6000. We accordingly hold that the appellant is not entitled to get back the Port Trust Debentures re-endorsed to him.

11. We will now take up the appellant''s claim to arrears of rent for the two under-tenures held by the respondents under him. It is the common case of the parties that no portion of the land of those under-tenures is situate within the Ordinary Original Jurisdiction of this Court, but it is admitted that all the respondents reside within the local limits of that jurisdiction. The fact of residence would give jurisdiction to the Original Side of this Court to entertain that claim by virtue of the provision of Clause 12, Letters Patent. The point is whether that jurisdiction, so far as suits between landlord and tenant are concerned, has been taken away. Section 144, Ben. Ten. Act, as it originally stood, merely stated that the cause of action in suits between landlord and tenant shall for the purpose of the CPC be deemed to have arisen within the local limits of the jurisdiction of the civil Court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connexion with which the suit is brought. That provision created an additional forum for suits for rent. By Bengal Act, 4 of 1928, however, a bar was imposed by enacting that no other civil Court would have jurisdiction to entertain suits between landlord and tenant except the Court which would have jurisdiction to entertain a suit for possession of the tenure or the holding. In our judgments the said amending Act, being an Act of a Provincial Legislature, cannot affect the jurisdiction of the Original Side of this Court conferred by Clause 12, Letters Patent. Clause 44, Letters Patent gives power only to the Indian Legislature (the Governor-General in Legislative Council and the Governor. General in Council u/s 71, Constitution Act of 1915, which correspond to Rule 72, Schedule 9, Constitution Act of 1935) the power to affect or modify the Letters Patent. The fact that Bengal Act, 4 of 1928, was passed with the previous sanction of the Governor-General given u/s 80A, Constitution Act of 1915 would not make it an Act of the Indian Legislature: ILR Narsing Das Tansukdas Vs. Chogemull and Another, . We accordingly hold that 8.144, Ben. Ten. Act, as amended by Bengal Act, 4 of 1928, has not taken away the jurisdiction of the original Side of this Court to entertain suits for rent, where the defendant resides within the local limits of the original Side of this Court. We cannot therefore agree with our brother Sen J. on this point.

12. This leads us to consider the question of the amount for which the appellant can get a decree for rent. Paragraph 4(a) of the com- promise in our judgment, means that the respondents gave up their claim under their rent decrees in consideration of the appellant giving up his claim under his two rent decrees as also his claim for unsued arrears of rent upto the date of the compromise which was effected on 4th January 1940 (=18th Pous 1346 B.S.). It is admitted before us by the respondents'' advocate that rent of the two under, tenures was payable according to engagement in four kists, namely kist Pous, Magh, Falgoon and Chaitra. None of the kists for the year 1346 B.S. had therefore fallen due on the date of the compromise. The appellant there, fore would have been entitled to a decree for rent and cesses for the whole of that year and not for two months eleven days as held by our brother Sen J. The amount would be Rs. 1425 10-9. Our brother Sen J., however, did not consider the respondents'' claim of set-off. The decrees for rent which the respondents had obtained for the tenure held by the appellant under them was up to kist April 1938. Their claim for rent from kist October 1938 to kist April 1941, was therefore not affected by Clause 4 (a) of the compromise. At the time when they filed their written statement their claim only for kist October 1938 was barred by time. They are therefore entitled to set-off their claim for arrears of rent from kists April 1039 to kist April 1941. Leaving out interest in respect of which the respondents'' advocate abandoned their claim, the amount would come up to Rs. 9500. The appellant''s claim for rent for 1346 B.S., which only is admissible, is therefore, wiped out, leaving a balance of Rs. 8074-5-3 in favour of the respondents. For this amount the respondents would have got a decree if they had filed a cross appeal or a memorandum of cross-objection. But as they have not done so, we cannot give them a decree for that amount, and can only dismiss the appellant''s claim for rent. The result is that this appeal is dismissed with costs. Certified for two counsel.

Waight, J.

13. I agree.