Benode Behari Sadhukhan vs Hem Chandra Ghosh

Banerjee, J.—This appeal, at the instance of the Defendant No. 1 (now deceased and substituted by his heirs), is directed against an appellate decree affirming the decree passed by a learned Munsif. The appeal was at one stage allowed by S.R. Das Gupta and Mullick, JJ. On review, however, the judgment and decree were set. aside. This is how the matter again comes before us for re-hearing.

Plot No. 101 of Khatian No. 174, Mouza Barasat, measuring 18 acre, was formerly held by one Nibaran Chandra Das at a rental of Rs. 14 per annum. Kshetradas Ghoshal was the landlord of the holding at all material time. Nibaran was succeeded by his two sons Prafulla and Jugal (Defendant No. 2). Under an amicable partition, the southern portion of the holding aforesaid measuring 9 decimal and containing three tin huts, fell to the share of Jugal abovenamed. By transfer a portion of the holding in, the share of Prafulla, passed to Patal Chandra Das (Defendant No. 3), who thereafter obtained a permanent lease from the landlord.

The Barasat Co-operative Credit Society got an award against Defendant No. 2, Jugal, and put the award into execution under the Public Demands Recovery Act. In, the certificate sale the Plaintiff, Hem Chandra, purchased the share of Jugal in the holding. The sale was confirmed on February 28, 1944.

Alleging that Defendant No. 1, Benode Behari Sadhukhan, in collusion with Defendant No. 2, trespassed on September 25, 1944, upon the land purchased by him, the Plaintiff brought the suit, out of which this appeal arises, claiming declaration of his title and recovery of possession.

Written statements in the suit were filed by Defendant No. 1, Benode Behari, and Defendant No. 3, Patal Chandra Das, but the main contest was by Benode Behari. According to Benode, Behari. Defendant No. 1, Kshetradas Ghoshal, the landlord of the holding, had instituted a suit, being title suit No. 15 of 1939, claiming a decree for partition against Patal and a decrees for eviction against Jugal and the sons of Prafulla. He got a decree. The proceeding for execution of the decree, except as So costs, was stayed under the provisions of Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. Jugal and the sons of Prafulla were alleged to have surrendered possession, in favour of the landlord decree-holder towards the end of the year 1940 and the latter claimed to have gone in possession. On October 22, 1943, the landlord leased" out the holding, excepting the portion belonging to Patal, to the Defendant No. 1, in Mouraski Mokrari right, on receipt of a premium of Rs. 1,900 and at a rental of Rs. 12. The Defendant contended that no title had passed to the Plaintiff by his purchase in the certificate sale. Further in the year 1944, the Defendant No. 1 had paid a sum of Rs. 80 to the Plaintiff, so as to acquire, ex abundanti cautela, the right title and interest, if any, the Plaintiff had acquired in the disputed property and thereafter the Defendant No. 1 made various improvements on the disputed property; as such the Plaintiff was estopped from claiming the reliefs, as prayed for.

The learned Munsif disbelieved the story of surrender by Jugal and the sons of Prafulla. He also disbelieved that the Defendant No. 1 had paid Rs. 80 to the Plaintiff, so as to buy him out of Such interest, if he had any. He held that during the period that the ejectment decree remained stayed, under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, the status of Jugal, one of the judgment-debtors as a tenant, was not lost but continued subject to the payments contemplated in Section 5 of the said Act. By purchase in the certificate sale the Plaintiff became entitled to the rights of Jugal, but remained under the perils of the decree for eviction, passed against Jugal if, and when, and if at all, the same became executable. Until then the Plaintiff was entitled to retain possession of the disputed land. In that view of the matter, the trial court found that the Plaintiff was entitled to a decree for declaration and possession in respect of 4 cottahs 11 chittaks of land with the huts standing thereon.

The lower appellate court affirmed the decree of the trial court. Hence this second appeal.

The question for our consideration is what was the nature of the interest that Jugal had in the disputed property, during the period that the decree for eviction against him remained stayed under the Bengal Non-Agricultural Tenancy (Temporary Provision) Act, 1940, and what interest, if any, passed to the Plaintiff by virtue of his purchase in the certificate sale.

We need remember that the West Bengal Non-Agricultural Tenancy Act, 1940, came into force on May 15, 1949. Tinder Section 88 of the Act, its provisions are to have effect in respect of all suits, appeals or proceedings including proceeding in execution for ejectment of a non-agricultural tenant, pending at the date of the commencement: of the Act.

In the instant case the decree for eviction was passed on September 11, 1939. The Bengal Non-Agricultural Tenancy (Temporary Provision) Act, 1940, came into operation on May 30, 1940. The tenants not having had vacated, after the passing of the decree, Kshetradas, the landlord, put the decree for eviction to execution, on August 6, 1940. The execution was stayed by an order, dated August 24, 1940. On September 13, 1949, after the expiry of the temporary Act, the landlord applied for proceeding with the execution case. The stay order was vacated on June 26, 1950. Hem Chandra, the present Plaintiff, filed an objection u/s 47 of the Code of Civil Procedure, claiming to be the legal representative of the judgment-debtor, Jugal, and in that application took up the position that because of his rights under the Non-Agricultural Tenancy Act, 1949, he was not liable to eviction by process of execution. The objection succeeded before the executing court and the execution case was dismissed. An appeal against the said order however succeeded and the objection was dismissed.

The matter is now sub judice before this Court in S.M.A. 32 of 1952.

On the date the ejectment decree was passed against Jugal and the sons of Prafulla, the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, had not come to be. The decree notwithstanding, they continued in possession. The decree? was put to execution against them after the coming in operation of the aforementioned Act of 1940. On the authority of the decision in Sukumari Devi v. Rajdhari Pandey (1941) 46 C.W.N. 174 S.B we have to treat them as non-agricultural tenants and the proceeding for eviction against them was bound to be stayed for the purpose of the application of the Act of 1949 also to proceedings pending at its commencement; "the words non-agricultural tenant must be "taken to include a tenant, whose tenancy was determined by a "notice to quit but who remained in possession in spite of the "notice and a decree in ejectment" (vide Bamapati v. Sm. Lakshmi (1952) 57 C.W.N. 533). We, therefore, hold that even after the termination of the contractual tenancy, by reason of the decree for eviction, Jugal and the sons of Prafulla continued in occupation as non-agricultural tenants for the purposes of Benga) Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, and also the Act of 1949.

The question, however, remains whether the interest that Jugal had in the disputed property was a transferable interest. Mr. Sambhunath Banerjee, learned Advocate for the Defendant No. 1, Appellant, contended that such an interest was the interest of a statutory tenant, a mere possessory right, and incapable of transfer or assignment or sale in execution of a decree. In support of his proposition, he relied on the following passage from Woodfall''s law of landlord and tenant (24th ed.) at p. 295:

A statutory tenant has no right to assign his statutory tenancy, either for valuable consideration or at all, having no estate in the premises. In order to be entitled to the protections of the Acts he must be in personal occupation or actual possession of the premises.

He also relied on a decision of the King''s Bench Division in Sutton v. Dorf (1932) 2 K.B. 304, where Acton, J., collected some of the judicial pronouncements regarding the nature of statutory tenancy and observed:

In Nunn. v. Pellegrini (1924) 1 K.B. 685, it was decided that the right of a statutory tenant is merely a personal right to retain possession of the premises, and cannot be assigned.

In Hoe v. Russell (1928) 2 K.B. 117, it was decided that a statutory tenant could not assign or sub-let his tenancy of the whole of the premises, whether for value or not; per Scrutton, L.J. In Lovibond and Sons, Ltd. v. Vincent (1929) 2 K.B. 687 it was decided that the right of a statutory tenant is a purely personal right and cannot be transmitted by will. If the tenant dies intestate, his widow or some other member of his family residing with him is given a righfj to continue in possession u/s 12, Sub-Section 1(g) of the Act of 1920; but this is due to this express, statutory provision by which the definition of "tenant" is made to include such person, and apart from that, nothing passes to the statutory tenant''s administrator merely because he becomes administrator of a person who was a statutory tenant. In Roe v. Russell (supra) Sargant, L.J. said: "When once the conclusion is reached "that the statutory tenant has no estate or property as tenant at "all, but has a purely personal right to retain possession of the "property, it is difficulty to apply to him, as part of the terms and "conditions of his former tenancy, rights essentially incidental "and due to the possession of property" Roe v. Russel (supra). And in Keeves v. Dean (1924) 1 K.B. 685, Bankes L.J. said, "his "right is a purely personal one, and as such, unless the statute "expressly authorises him to pass it on to another person, must "cease the moment he parts with the possession or dies."

Statutory tenancy, as understood in England, is something of a jurisprudential curiosity and a statutory tenant may well be described as ail anomalous legal entity. Statutory tenancy is merely a compendious expression to describe the right of a tenant of protected premises or land to remain in possession of such premises or lands notwithstanding the determination of his contractual interest. Importation of the English doctrine of statutory tenancy with all its anomalies, in interpretation of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, may not at all be useful. Left to ourselves we would much rather call a person protected from eviction, under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, as a person in protected'' occupation and not as a statutory tenant. We say "protected" because law protects him from eviction and the landlord has to suffer such protection.

Does such a person have an estate in the land: or premises, where from law protects him from eviction or does he merely enjoy a status of irremovability? In other words, does he merely have a personal right of occupation?

If it is a mere personal right of occupation, in the sense of an interest in property restricted in its enjoyment to the owner personally, then such a right is not a transferable property, u/s 6(d) of the Transfer of Property Act. Then again if it is a merely personal right, in the sense aforementioned it is not property: over which a judgment-debtor, in enjoyment,, has a disposing power which he may exercise for his own benefit and as such, tinder the provisions of Section 60 of the Code of Civil Procedure, such a right or property is not liable to attachment and sale in execution of a decree.

In our opinion a non-agricultural tenant, against whom a decree for eviction stands stayed under the. provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, has more than a mere personal interest of enjoyment of the property, which is the subject matter of the decree for eviction. His right is heritable; the suit or proceeding pending against him (but stayed under the Act of 1940) does not abate because of his death; the cause, of action survives against his heirs or legal representatives. Therefore it is not an interest in property restricted in its enjoyment to the owner personally, within the meaning of Section 6(d) of the Transfer of Property Act, and as such non-transferable. There is nothing in the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, which prohibits transfer of such interest. It is difficult to hold that an. interest such as the Bengal Non-Agricultural Tenancy Act, 1840, protects, is an interest in immoveable property over which a person has no disposing power, to be exercised for his own benefit, as contemplated in Section 60 of the Code of Civil Procedure. Such an interest may not be an estate in the property-but is surely as interest in property.

In the instant case, there was a compulsory sale under the procedure laid down in the Public Demands Recovery Act. It is well settled that in a sale in execution of a decree for an award executable as a decree what passes to the auction purchaser is the right, title and interest of the judgment debtor. The purchaser gets the property with all the risks and defects of the judugment-debtor''s title. It is only in cases where the judgment-debtor is proved to have no saleable interest at all that the purchaser has got the remedy as provided for by Order 21, Rule 91, read with Rule 93 of the Code of Civil Procedure, namely, to apply to have the sale set aside and to get a refund of the purchase money. It is not obligatory on the purchaser to do so, but he may.

We have already held that the position of Jugal (Defendant No. 2) at the date of the auction sale was that of a person in protected occupation of the disputed land. The law kept him on the disputed land, in spite of the decree for ejectment, and the landlord had to suffer his protected existence on the land. That interest to exist on the disputed land has now turned into substantive estate in the disputed property, u/s 7 of the Act of 1949.

In our opinion such an interest was saleable in a certificate sale and the right, title and interest that the Plaintiff purchaser acquired in such sale is now sanctioned into a substantive estate in the disputed property, u/s 7 of the Act.

That being the position, it must be held that Defendant No. 1 got nothing under the lease in his favour, dated October 22, 1943, as against the Plaintiff, and in competition with the interest acquired by the Plaintiff, the defendant No. 1 and after his death, his successors must fail.

In the view that we take we affirm the judgment and decree of the lower appellate court and dismiss the appeal. There will be no order as to costs.

In. view of our judgment in the Second Appeal, it is not disputed that S.M.A. 32 of 1952 must succeed. "We, therefore, set aside the appellate order and restore order made by the executing court. There will be no order as to costs.

Niyogi, J.

I agree.