Judgment Case ID: 580

Judgment:
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. 40	000 and odd	 which was subsequently reduced to Rs. 27	000 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	 2(a) and 2(b)	 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. 25	000 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:
The time limit of six months provided by section 5 of the Bengal Tenancy Act within which a tenure holder has to give notice of his succession to the landlord or have his name mutated in his rent roll is not mandatory but directory in character and the only effect which non observance of that time limit can have under section 16 of the Act	 is to postpone his remedy to recover arrears of rent by way of suit till such time when he performs the duty cast upon him by section 5 Of the Act	 but it cannot	 by itself	 bar the remedy for all time to come. Section 16 is a penal provision and must be subjected to its statutory limitation and the penalty it imposes cannot be extended by implication. Consequently	 in a case where the sepatnidar resisted the durpatnidars ' suit for recovery of arrears of rent on the ground	 inter alia	 that they had not got themselves mutated in the landlord 's records under section 15 of the Bengal Tenancy Act and as such 227 the suit was barred under section 16 of the Act and the courts below found on the evidence adduced by the durpatnidars that the landlord had accepted rents from them and granted receipts after ordering mutation of their names in the rent roll: Held	 that the courts below were right in holding in favour of the durpatnidars that there was the necessary mutation in the landlord 's rent roll. The factum of mutation in the landlord 's rent roll can be proved not only by the production of original rent roll or its certified copy but	failing these	 also by other secondary proof of mutation.