AI Structured Summary
Not yet generated for this judgment
Judgment
Maclean, C.J.—This suit relates to two estates numbered 822 and 837, which were subject to a joint rent of Rs. 280, and which belonged to the testator named in the suit. In May 1893, the estate No. 837 was sold under a decree and was purchased by Plaintiff No. 2; in September 1893, the testator died; on the 7th February 1894, Plaintiff No. 1 (Mr. Belchambers) was appointed Receiver of his estate, with power to get in arrears of rents due to that estate. On the 6th December 1894, letters of administration were granted to Mr. Belchambers. It appears that the rents for the years 1891 and 1892 were not paid to the testator during his life, and the Receiver, as the officer of the Court, now calls upon the Defendant to pay those rents. The Defendant having declined to do so, Plaintiff No. 1 instituted this suit on the 10th April 1895, and Plaintiff No. 2 has subsequently been joined as a co-Plaintiff. The Defendant contends that Plaintiff No. 1 cannot recover as he has not been registered under Act VII of 1876. Plaintiff No. 1 admits that he was not so registered, but says he could not have been so registered, and that the Act has no application to the case where the registered proprietor dies, and, as Receiver appointed by the Court, he is merely seeking to recover the rents which ought to have been paid to the registered proprietor. The question turns admittedly upon the construction of sec. 78 of Act VII of 1876. That section says this :--" No person shall he bound to pay rent to any person claiming such rent as proprietor or manager of an estate, or revenue-free property, in respect of which he is required by this Act to cause his name to be registered as proprietor or manager, unless the name of such claimant shall have been registered under this Act;" and sec. 42 of the Act points out the persons who ought to be registered. No doubt a manager ought to be registered.
As I have stated above, the Defendant contends that, inasmuch as Plaintiff No. 1 was not registered in respect of the property, the back rents of which for 1891 and 1892 he seeks to recover, the Defendant is not bound to pay him such rent. In the first place, it is to be observed that the section does not say that a suit shall not be brought to recover the rent, but that no person shall be bound to pay to the person claiming such rent, as the proprietor or manager, unless his name has been registered. The Plaintiff No. 1 is not claiming as proprietor, and it is very doubtful, as he was not manager at the time when this rent accrued whether he can be said to be suing as manager. He is suing as the duly-appointed officer of this Court to get in arrears of rent due to a registered proprietor, and which the Defendant ought to have paid to that registered proprietor. When these rents accrued, the testator was the registered proprietor, and if Plaintiff No. 1 had sought registration after the testator''s death, he would have been met, and successfully met, by the contention that inasmuch as the property had been sold before the testator''s death, and belonged to Plaintiff No. 2, he was not the proper person to be registered. Plaintiff No. 1 could not have been registered, and I do not think that the words, "in respect of which he is required by this Act to cause his name to be registered," can apply to a case when it is not possible for the person to be so registered. The Legislature could scarcely have intended that a person who was not entitled to be registered, and could not be registered, should be regarded as a person who was "required" to be registered within the meaning of this section. If we were to place upon this section the construction for which the Respondent contends, the result would be, as regards these particular rents, that the tenants would get off scot-free, for the representatives of the testator could not get them, and Plaintiff No. 2 could not get them. I can scarcely suppose that this was the intention of the Legislature, and I do not think the language of the section warrants such a conclusion. For these reasons the appeal must succeed with costs.
With respect to the appeal No. 825 of 1896 that relates, not to the rents I have been dealing with, but to the subsequent rents for the years 1893 and 1894, in respect of which both the Receiver and the purchaser, the Plaintiff No. 2, who has been registered, are now suing. The objection is taken by the Defendant that, inasmuch as the Plaintiff No. 2 was not registered at the time the suit was instituted, he cannot maintain the suit. I do not take that view, and I confine myself to saying that I concur in the opinion expressed by the majority of the Judges in the case of Alimuddin Khan v. Hira Lall Sen and others ILR 23 Cal. 87, and in that expressed in the more recent case of Harehkrishna Das and others Vs. Brindabun Shaha and others , notwithstanding the opinion of the learned Judges in the case of Surya Kant Acharya Bahadur v. Hemant Kumari Devi ILR 16 Cal. 706. This disposes of that point.
Then, as regards the second point, upon which this appeal is based, but which has not been seriously argued, namely, that, inasmuch as the right of these particular rents formed the subject-matter of another suit which was brought in the High Court, the Plaintiff could not proceed with their present suit for those same rents, the answer is a simple one. If a suitor bring a suit in two Courts, seeking in each Court the same relief, the Defendant may reasonably complain that he ought not to be harassed by such double litigation, and under such circumstances his proper course is to apply for a stay of one of such suits which doubtless he would obtain, putting the Plaintiff to his election as to which suit he will carry on. Unless and until he do so, it does not lie in his mouth to say that the suits do not lie and cannot be sustained. In point of fact, however, the claim in the suit in the High Court for these rents has been, as I understand, withdrawn, the present suit, then, for these rents is clearly maintainable.
This appeal therefore fails and must be dismissed with costs.
Macpherson, J.
In appeal No. 630, I think the Plaintiff was not required by any of the provisions of Act VII of 1876 to register his name in respect of the two properties for which rent is claimed as regards the years 1298 and 1299, in which years the name of the former proprietor was registered. The Act does not seem to me to contemplate that the names of two different persons should be registered for the same period. No doubt the Plaintiff as the Receiver is claiming the rent for the two years which preceded the death of the former proprietor, and he is also claiming the rent of the subsequent period as Receiver of the estate, but the provisions of the Act relating to registration do not seem to me to apply to the case of a person who is seeking to recover rent as the representative of a deceased proprietor whose name was registered, the rent having become due in the lifetime of that proprietor. As to appeal No. 825, I agree with the Chief Justice that the fact that the Plaintiffs were not registered at the time when the suit was brought furnishes no ground for the dismissal of the suit. On the other point which was argued, I agree with the Chief Justice for the reasons which he has given.