Appeal No 39 of 1955
Appeal from the judgment and decree dated August 28 1953 of the Calcutta High Court in Appeal from Original Decree No 97 of 1950 arising out of the judgment and decree dated April 27 1950 of the Court of Second Sub Judge of Zillah Hooghly in Rent Suit No 3 of 1949
B Bagchi and P K Chosh for the appellant
N C Chatterjee and D N Mukherjee for the respondents
March 24
The following Judgment of the Court Was delivered by SINHA J
The main controversy in this appeal on a certificate granted by the High Court of Calcutta against the concurrent decisions of the courts below centers round the true interpretation and effect of sections 15 and 16 of the Bengal Tenancy Act Act VIII of 1885 hereinafter referred to as the Act
The courts below have substantially decreed the plaintiff s suit for arrears of rent in respect of a se patni tenure
Hence the appeal by the defendant
The plaintiffs ancestor Nirmal Chandra Benerjee was a durpatnidar under the patnidar in respect of the tenure in question
He died leaving him surviving his three sons Satya Ranjan Satya Jiban and Satya Kiron who became the durpatindars in respect of the tenure by succession and there is no dispute that they were so mutated in the superior landlord s office
There was a partition suit between them in the court of the 228 subordinate judge at Alipur being Title Suit No 128 of 1946
During the pendency of that suit Promode Kumar Banerjee was appointed Receiver of the properties under partition
Satya Jiban died during the pendency of the partition suit
The exact date of his death does not appear in the record
His heirs are his widow Tusharika Debi and his two sons Uptal Kumar Banerjee who is of unsound mind and Ujjal Kumar Banerjee a minor
The Receiver aforesaid instituted the suit out of which this appeal arises for arrears of rent against the first defendant now appellant in respect of the years 1352 to 1355 B section He put the total claim inclusive of interest at Rs 40000 and odd which was subsequently reduced to Rs 27000 and odd
It is not necessary to go into the details of the claim because the amount decreed is no more in controversy
To the suit for rent being Rent Suit No 3 of 1949 in the court of of Second Subordinate Judge Hooghly the heirs aforesaid of Satya Jiban were impleaded as proforma defendants Nos 2 2a and 2b and so were Satya Kiran and Satya Ranjan as defendants 3 and 4 respectively
During the pendency of the rent suit the partition suit was compromised with the result that the durpatni tenure in question was allotted to Satya Jiban s branch of the family
Hence the plaint was amended by an order of the court dated July 25 1949 by substituting the aforesaid heirs of Satya Jiban as the plaintiffs in the place of the Receiver aforesaid who was the original plaintiff and who was discharged from the record
The suit was contested on a number of grounds but it is now necessary only to refer to the plea in bar of the suit namely that the plaintiffs substituted as aforesaid and by transposition from the category of proforma defendants to that of plaintiffs were not entitled to sue for rent on the ground that they had not got themselves mutated in the place of their predecessors in title in the landlord s records and that therefore this suit was barred under section 16 of the Act
It is no more necessary to set out the facts bearing on the devolution of title to the property in question 229 because that was not a controversy raised in the High Court and the arguments in this Court were therefore confined to the technical plea aforesaid
After hearing the parties the learned trial judge decreed the suit for Rs 25000 and odd
The first defendant preferred an appeal to the Calcutta High Court and a Divisional Bench of that Court after hearing the parties directed a limited remand to the trial court for taking additional evidence in proof of certain documents filed by the plaintiffs but not properly proved at the original trial
The trial court was also directed to submit its findings on the question of the right of the plaintiffs to maintain the suit in view of the provisions of sections 15 and 16 of the Act
After remand the documents on proof were again marked as exhibits I and 2 and the finding was returned by the trial court in due course
After the receipt of the finding the High Court heard the appeal once again and dismissed it with costs
The appellant moved the High Court and obtained the necessary certificate
Hence this appeal
In this Court it was argued on behalf of the appellant that the provisions of section 15 are mandatory that those provisions not having been complied with the bar imposed by section 16 operates against the plaintiffs with the result that they are not entitled to recover the arrears of rent by suit
Sections 15 and 16 are in these terms  15
When a succession to a permanent tenure takes place the person succeeding shall give notice of the succession to the landlord or his common agent if any in the prescribed form within six months from the date of succession in addition to or substitution of any other mode of service in the manner referred to in sub section 3 of section 12 Provided that where at the instance of the person succeeding mutation is made in the rent roll of the landlord within six months of the succession the person succeeding shall not be required to give notice under this section  16
A person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit or other proceeding any rent payable to him as 230 the holder of the tenure until the duties imposed upon him by section 15 have been performed
 It is common ground that the notice contemplated by section 15 was not given but it was contended on behalf of the plaintiff respondents that the proviso to that section had been complied with inasmuch as evidence had been adduced by the plaintiffs and accepted by the courts below that the superior landlords accepted rents from the plaintiffs and granted them rent receipts in respect of the tenure in question after ordering mutation of their names in the rent roll
In order to bring the case within the proviso to section 15 quoted above the plaintiffs served a requisition on the landlords I Maharajadhiraj of Burdwan and 2 Sri Ramlal Bandopadhyaya to produce all papers in respect of mutation of names regarding the tenure in question
Those documents were not produced but the plaintiffs examined P W 2 an employee of the Burdwan Raj and P W 3 their own employee to prove the necessary mutation
P W 2 deposed that the plaintiffs paid Rs 101 as fee for mutation of their names in the office of the Maharajadhiraj of Burdwan and that they were mutated in respect of the 8 annas  interest
P W 3 similarly proves mutation in the office of Ramlal Babu in respect of the other 8 annas  share
In pursuance of the mutation rent was paid and accepted by the landlords
The necessary order of mutation and the rent receipt exhibits 2 and respectively were produced and placed on record after being duly proved Nothing has been brought out in the cross examination of these two witnesses to detract from the value of their evidence
Naturally
therefore
the courts below had no difficulty in accepting their evidence corroborated by those pieces of documentary evidence
But it was contended on behalf of the appellant that section 15 requires proof of mutation in the rent roll of the landlord and the rent roll or its certified copy should have been adduced in evidence and in the absence of the primary evidence of mutation contained in the rent roll the plaintiffs have failed to prove the requisite mutation
In our opinion there is no substance in this contention
The landlords rent roll 231 was not in the custody or control of the plaintiffs
They served requisition on their landlords to produce those documents
As those documents were not produced by the parties who would ordinarily be in possession of their rent rolls the plaintiffs had no option but to adduce secondary evidence of the mutation namely the order sanctioning mutation and the payment of rent to the superior landlord in pursuance of the sanction of mutation
Like any other disputed fact the factum of mutation in the landlords rent roll can be proved by the production of the original rent roll or by its certified copy if available and failing those by other secondary proof of mutation
In the circumstances we are inclined to hold that in this case the courts below were justified in coming to the conclusion that there was the necessary mutation of the plaintiffs in the landlords  rent roll
It was next contended that there is no proof that the mutation even if made had been made  within six months of the succession 
It is true that the date of the death of Satya Jiban plaintiffs predecessor in title is not known if that is the point of time with reference to which the six months  period has to be calculated
If the starting point of time is the date of the allotment of the tenure in question to the plaintiffs  share as a result of the partition we know that June 20 1949 is the date of the compromise as appears from the list of dates supplied by the counsel for the appellant
The rent receipt exhibit 1 is dated January 4 1950 and the order of mutation passed by the Burdwan Raj is dated January 20 1950
Apparently therefore the mutation must have been effected within six months from the date of the compromise as a result of which the entire tenure was allotted to the plaintiffs  share
If was not argued be fore us that this was not a case of succession as contemplated by section 15 namely the death of the last holder on the happening of which event the succession to the tenure opened in favour of the plaintiffs
Satya Jiban had only one third share in the entire tenure by inheritance from his father
The other two thirds shares had been inherited by his two brothers aforesaid
Hence strictly speaking succession to only 232 the one third share of Satya Jiban could open on his death
But as this aspect of the case was not canvassed before us we need not express any opinion on it
As already indicated the date of the death of Satya Jiban not having been brought on record and if the six months  period has to be counted from that date it has got to be assumed in favour of the appellant that the mutation even if effected as found by the courts below was not done within the prescribed time
It may also be mentioned that it was not argued before us that the rent suit having originally been filed by the Receiver pendente lite who represented the entire 16 annas interest in the tenure the suit had been properly instituted and no question under sections 15 and 16 of the Act would therefore arise if any devolution of interest took place during the pendency of the suit
For the purpose of determining the present controversy we proceed on the assumption that the mutation had not been made within six months as prescribed by section 15 and that this defect affected the entire interest in the tenure in spite of the fact that the two thirds interest which originally belonged to Satya Jiban s brothers came to the plaintiffs as a result of the compromise in the partition suit
Section 16 as it stands after the amendment by the Bengal Act IV of 1928 does not impose an absolute bar on the recovery by suit of the arrears of rent
The bar is there only  until the duties imposed upon him that is the plaintiffs by section 15 have been performed
 Now section 16 does not speak of any time limit
It only speaks of the bar to the recovery of the arrears until the performance by the landlord of the duty of giving notice of the succession or getting mutation made on the succession
It was argued on behalf of the appellant that the performance of the duty aforesaid is inextricably bound up with the period of six months and that the performance of the duty beyond that period is no performance at all in the eye of law
We are not impressed by this argument and there are several very good reasons for holding to the contrary
The provisions of section 15 are meant not only for the benefit of the landlord or of the inferior tenant but of the intermediate landlords also that is to say the 233 provision for notice or in the alternative for mutation of names in the landlord s rent roll is meant to protect the interest of the superior landlord in that it ensures payment of his dues by the intermediate landlord before the latter can realise the same from his tenant in this case the se pataidar
Those provisions also ensure that the rightful persons entitled to the durpatni interest get themselves mutated in the superior landlord s office so that the inferior tenants may know who their new landlords are as a result of succession to their old landlords
The legislature by fixing the limit of six months intended to indicate that the notice of the mutation should be effected within six months that is to say within a reasonable time from the date of the devolution of interest even as there are similar provisions in respect of the mutation of proprietors in the Collectorate for the purpose of regular realization of public demands
But the legislature did not intend to make it mandatory in the sense that failing to observe the time limit the landlord completely deprives himself of his right to receive rent from his tenant even though otherwise due
That is the reason why in section 16 there is no indication of time limit
On the other hand there is an indication to the contrary in so far as the last clause quoted above provides that the bar against the recovery by suit of any rent payable to the holder of the tenure operates only until he performs the duties imposed upon him by section 15
Section 16 being in the nature of a penal provision has to be strictly limited to the words contained in the penal clause and the penalty should not be extended by implication
If the legislature had intended that the penalty should operate for all times if the duty were not performed within the time specified in section l5 the legislature would have used the words  within the prescribed time  or some such words
Instead of laying down such a time limit the legislature has by the amendment aforesaid by Act IV of 1928 made it clear that the bar operates only so long as the duty has not been performed
No authority has been cited before us in support of the extreme proposition that 30 234 the failure on the part of the landlord to serve the requisite notice or to get the necessary mutation effected within six months has  he effect of wiping out the landlord s right to receive rent
There may be rulings to the contrary but this Court has to resolve the controversy on the language of the relevant sections of the statute quoted above
That language does not clearly indicate that the result contended for on behalf of the appellant must necessarily ensue on his making a default to take those necessary steps within the time specified
The language of the statute is not so peremptory in express terms or by necessary implication
On the other hand as already indicated the language easily lends itself to the construction that the prescribed time is not in the nature of a statutory bar to the exercise of the landlord s right to recover rent
in this connection it has to be remembered that patni tenure and all other subordinate tenures under the patnidar are permanent tenures
Hence the relationship of landlord and tenant continues from generation to generation without there being any necessity of fresh attornment on the death of a durpatnidar or other grades of tenants in the process of sub infeudation
The relationship is all the time there only the landlord s record has to be kept up to date by making the necessary substitution in the rent roll or by giving notice of the change in the succession to the landlord s interest
The legislature had to indicate a time by way of laying down the ordinary procedure for taking the steps indicated in section 15
Six months  period was deemed by the legislature to be a sufficiently long period to enable those steps being taken in the ordinary course of business
But it is not difficult to imagine cases where such steps may not be feasible within the prescribed time
For example where the landlord dies leaving him surviving only an infant heir without a proper guardian to protect the infant s interest it may take a considerably longer period than six months to have a proper guardian appointed if necessary through court
It may well be that the succession itself is disputed and the controversy may take some years to get determined finally
It cannot be reasonably 235 suggested that because the requisite notice or the mutation has not been given or effected within the prescribed period of six months the landlord s right to recovery of rent disappears
That could not have been the intention of the legislature
Again it may easily be supposed that an honest tenant goes to his new landlord and pays him rent hand to hand even though there has been no such step taken within the time as contemplated by section 15
It cannot be said that such a payment of rent out of court will not be recog nized by a court if and when a controversy about such a payment were to arise
In this way instances maybe multiplied where the provisions of section 15 of the Act have not been strictly complied with but still the receipt and payment of rent as between the patnidar and his tenant have continued for a sufficiently long period to prove what was required to be done under that section
In our opinion the inference is clear that the provision as regards the time limit is not mandatory but only directory and that transgression of that directory provision has the effect of only delaying the landlord s remedy of recovery of arrears of rent by suit so long as the landlord has not done what he is required by law to do
But that provision has not the effect of absolutely depriving the landlord of his remedy by suit for all times he may recover through court of course subject to the law of limitation
In our opinion therefore acceptance of the appellant s arguments would be nothing more than  piling unreason upon technicality which no court of justice can countenance
In view of these considerations it must be held that there is no merit in this appeal which is accordingly dismissed with costs
Appeal dismissed


Summary:
It is well settled that in an appeal under section 417 of the Criminal Procedure Code the High Court has full power to review the evidence upon which the order of acquittal was founded
But it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court and the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very sub stantial and compelling reasons