Subodh Chandra Das vs Panchu Khan

Sinha, J.—This is an application made by the Opposite Party (tenant) to an application made by a purchaser from the transferee of a usufructuary mortgagee from the under-tenant. The petitioner be-iore us was the tenant Of a holding No. 10 situate in a certain village. One Qurban Khan was recorded in the record-of-rights as an under-tenant. Qurban Khan executed a usufructuary mortgage in favour of one Haru Sah sometime in the year 1934. This usufructuary mortgagee transferred his interest to the Opposite Party Panchu Khan by a sale deed duly registered on 6-7-1948. Panchu Khan made an application u/s 61, Bihar Tenancy Act, for permission to deposit the rent in favour of the petitioner and for receipt being granted for the same by the Court.

The Court below acting u/s 62, Bihar Tenancy Act, held that the applicant Panchu Khan as mortgagee from a tenant was entitled to make deposit and directed a receipt to be granted for the rent deposited by the applicant. The petitioner contends that even though the applicant may hold the position of a mortgagee from an under-tenant he is not the mortgagee of the holding of a tenant and, therefore, he is not entitled to make the deposit u/s 61. Relevant portion of Section 61 runs as follows:

"(1) In any of the following cases namely:--

(a) when a tenant or the mortgagee of his holding or tenure or of a portion of his holding or tenure tenders money on account of rent and the landlord refuses to receive it or refuses to grant a receipt for it..... the tenant or the mortgagee of his holding or tenure or of a portion of his holding or tenure may present to the Court...... an application in writing for permission to deposit in the Court the full amount of the money then due......"

The question, therefore, is whether within the provision of Section 61, the applicant answered the description of ''the mortgagee of his holding''. The word ''holding'' has been defined in Section 3(9) as ''a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy''. Section 4 of the Act mentions the classes of tenants and they are tenure-holders including under-tenure-holders, raiyats, and under-raiyats. When we come to the definition of ''raiyat'' (Section 5(2)) it means primarily a person who acquires a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right. Sub-clause (3) of Section 5 reads as follows:

"A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder."

Reading these definitions together, it is apparent that the word ''holding'' refers to the holding of a raiyat. Although the word ''tenant'' occurring in Section 61 has a much wider connotation, according to the definitions of ''raiyat'' and ''holding'' the expression ''the mortgagee of his holding'' must necessarily mean the mortgagee of a raiyat. The applicant does not answer the description of mortgagee of a holding and in that view of the matter, in my opinion, the Court below was wrong in holding that the applicant, namely, the Opposite Party before us, was entitled to make a deposit u/s 61, Bihar Tenancy Act.

The learned Counsel appearing on behalf of the Opposite Party suggested that the meaning of the words ''tenant'', ''raiyat'' and ''holding'' should be understood in a wider sense because the definitions given u/s 3, Bihar Tenancy Act, will hold good only so long as there is no repugnancy in the subject or context in which a particular term is used and his submission is that Section 61 was not intended to exclude a mortgagee from an under-tenant. I am unable to accept that view. If a term is defined in a particular statute that term must be understood to mean what is conveyed by the definition throughout the statute and I do not find any repugnancy in the subject or context in adopting the definition given of the word ''holding'' in interpreting Section 61 of the Act.

In the result, I would set aside the order of the learned Munsif dated 22-9-1951 and allow the application with costs. Hearing fee one gold, mohur.

Ahmad, J.

In view of the definitions, given under the Bihar Tenancy Act of the different words which have been used therein, there is no escape from the conclusion that a mortgagee from an under-raiyat has got no right to him for the deposit of rent u/s 61 of the Bihar Tenancy Act. I entirely agree with my learned brother that the view taken by the lower Court was wrong and that the application has to be allowed with costs.