Authored By : Herbert Carnduff, Beachcroft

Herbert Carnduff, J.

1. This second appeal has been preferred against thedismissal by the lower Appellate Court of a suit for the recovery of possessionof an agricultural holding. The original plaintiff and defendant each claimedunder a registered permanent sub-lease granted by the tenant, Chandra KantMajumdar. The learned Sub-Judge in the Court of Appeal below held that, regardbeing had to the provisions of Section 85 of the Bengal Tenancy Act, 1885, sucha sub-lease was void and conferred no title: whence it followed that theplaintiff could not succeed in ejectment against a person in the advantageousposition of a defendant in possession.

2. It is not without reluctance that I have arrived at theconclusion that this decision is right: and I say so for two reasons. In thefirst place, I have already joined, after argument, in a decidedly expressedopinion to the contrary--see Abdul Karim, Patwari v. Abdul Rahman: 16 C.W.N. 618 : 15 C.L.J. 672 :13 Ind. Cas. 364 [LQ/CalHC/1911/359] while, inthe second, it seems to me that justice, equity and good conscience are on theside of that contrary opinion, and I would not, if I could avoid it, agree tothe construction of an enactment of the Legislature which enables a lessor togo behind and evade the terms of his own lease.

3. In the circumstances, I must be excused for going intothe matter rather more fully than I otherwise should.

4. Section 85 of the Bengal Tenancy Act 1885 (VIII of 1885)runs as follows: 85(1) If a ryot sub-lets otherwise than by a registeredinstrument, the sub-lease shall not be valid against his landlord unless madewith the landlords consent: (2) A sub-lease by a ryot shall not be admitted toregistration if it purports to create a term exceeding nine years: (3) Where aryot has, without the consent of his landlord, granted a sublease by aninstrument registered before the commencement of this Act, the sub-lease shallnot be valid for more than nine years from the commencement of this Act."

5. The Act came into force on the 1st November 1885: and,therefore, the transitory provisions of the third sub-section quoted above havebecome practically spent and may be ignored. What we are here concerned with isSub-section (2) alone.

6. Now the language of this sub-section is clear andunambiguous. Under it, the registration of a permanent sub-lease, such as thesub-lease before us, is absolutely prohibited, registration against one personand not against another being unprovided for and, so far as I am aware, unknownto the law; and I venture to say that I agree in holding with the learned ChiefJustice and Mr. Justice N. Chatterjea in Jarip Khan v. DurfaBewa: 17 C.W.N. 59 :16 C.L.J. 144 :15 Ind. Cas. 476 [LQ/CalHC/1912/225] thatregistration accomplished in contravention of this statutory prohibition canhave no effect whatsoever. In other words, the permanent sub-lease of theplaintiff in this case must be regarded as unregistered. But Section 17 Clause(d) of the Indian Registration Act, 1877--See now Act XVI of 1908--renders sucha sub-lease invalid unless it is made by a registered instrument; and underSection 49 of the same Act, an unregistered instrument of the kind not only ispowerless to affect any Immovable property comprised in it, but also cannot bereceived as evidence of any transaction affecting such property. The result,then, is this, that the plaintiffs title-deed has no existence in the eye ofthe law and must be expunged from the record as if it had never been executed:and this is in accordance with the view taken by Pratt and Geidt, JJ., in FazelSheikh v. Keramuddi Sheikh : 6 C.W.N. 916 by the same Judgesin Ramgati Mandul v. Shyamacharan Dutt : 6 C.W.N. 919 byGeidt, J., sitting alone, in Basaratullah Mundle v. Kasirunnessa Bibi: 11 C.W.N. 190 and by Jenkins, C.J., and N.B. Chatterjea,J., in the recent case already referred to.

7. On the other hand, there are certain rulings which aresaid to indicate the view that, notwithstanding Section 85 of the Tenancy Act,a sub-lease by a ryot for a terra exceeding nine years is good as against him;and as I was myself a party to one of them, I feel it incumbent on me to referto all.

8. In Gopal Mondul v. Eshan Chander Banerjee 29 AC. 148 itwas held by Ameer Ali and Pratt, JJ., that, where a ryot had, without theconsent of his landlord, granted a sub-lease by a written instrument registeredbefore the commencement of the Tenancy Act, the sublease was invalid for morethan nine years after such commencement as against the landlord, but not asagainst the ryot granting it. This, however, was a decision turning on theconstruction of Sub-section (3) of Section 85 and, as their Lordshipsthemselves were, at pains to point out, that subsection has no connection withSub-section (2). The ruling, therefore, is really no authority on the pointbefore us here.

9. In Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377 thequestion depended upon a written sub-lease executed by a ryot in 1884 for anindefinite period, and Rampini and Pratt, JJ., following Ameer Ali and Pratt,JJ., in the case just cited, held that Sub-section (3) of Section 85 did notrender the sub-lease invalid for more than nine years against the ryot,"the Legislature having unfortunately omitted to insert in this clause thewords against his landlord, which occur in Clause (1)." Again, the rulingis not an authority on the construction of Sub-section (2) of the section.

10. In Tamijuddi v. Asgar Howladar 36 C. 256 :1 Ind. Cas. 942 [LQ/CalHC/1908/115] :13 C.W.N. 183 the sub-lease under consideration was not one for more than nineyears and, as Mitra and Chetty, JJ., remarked, there was, therefore, no bar toits registration. Consequently, although those learned Judges observed thatSection 85 of the Tenancy Act did not appear to them to prevent the creation ofa right in an undertenant to the extent of the right of the tenant himself, theobservation was by way of obiter dictum, and the supreme difficulty connectedwith registration, with which we are confronted in the present instance, didnot arise, and was not dealt with. Once more, then, I am bound to say that theruling cited does not decide the point now before us.

11. In Bipin Behari Hati v. Amrita Lal Bhuttacharji9 C.L.J.76 :3 Ind. Cas. 685 [LQ/CalHC/1909/107] the question was one of compensation for the acquisition ofland claimed by a sub-tenant, to whom a lease for more than nine years had beengranted by the tenant before the coming into operation of the Tenancy Act; andMaclean, C.J., and Doss, J. held, following Gopal Mandul v. Eshan ChanderBanerjee 29 C. 148 and Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377 thatSub-section (3) of Section 85 applied only as between the subtenant and thesuperior landlord, so that the sub-tenant had an interest and was entitled toshare in the award with the tenant. The decision is, therefore, on the samefooting as those it followed.

12. In Manik Borai v. Bani Charan Mandal 13 C.L.J. 649: 10Ind. Cas. 469 Mukerjee and Coxe, JJ., held that Sub-sections (1) and (2) of Section85 must be read together; that the question of the validity of a sub-lease notcreated by a registered instrument may be raised by the landlord of the ryot,and by him alone; and that the invalidity created by Sub-section (2) operatesonly in favour of such landlord. But the decision of the case was not rested onthis point; for it was in the end held that the suit ought not to have beendismissed because, even though the instrument, under which the plaintiffclaimed, were inoperative, he had a subsisting interest when the action wascommenced.

13. Finally, there is the judgment in Abdul Karim Patwari v.Abdul Rahman : 16 C.W.N. 618: 15 C.L.J. 672 :13 Ind. Cas. 364 [LQ/CalHC/1911/359] to which, as I have said, I was a party, and in which it was held that, upon atrue interpretation of Section 85 of Tenancy Act, a permanent lease by a ryotis binding as between the parties to the contract. But the cases relied upon insupport of that view were those of Tamijuddi v. Asgar Howldar 36 C. 256: 1 Ind.Cas. 942: 13 C.W.N. 183 Bipin Behari Heti v. Amrita Lal Bhuttacharji 9 C.L.J.76 : 3 Ind. Cas. 685 [LQ/CalHC/1909/107] and Manik Borai v. Bani Cahran Mandal 13 C.L.J. 649 :10Ind. Cas. 469 which, as I have shown above after a careful re-examination ofthe reports, are not authorities for the proposition. And, on a fresh andindependent consideration of the section itself, 1 am forced to the conclusionthat the effect of Sub-section (2) cannot but be to render altogether void anysub-lease by a ryot for a term exceeding nine years. The doctrine of estoppelcannot, it seems to be well settled, be invoked or applied so as to defeat theprovisions of a statute; and, therefore, I must hold that the learned Sub-Judgewas right in finding that the plaintiffs sublease was worthless as the foundationof the title he had set up.

14. It is further urged on behalf of the appellants that thepoint, on which the decision of the learned Sub-Judge turns, was not raised inthe Court of first instance at all, nor before the actual hearing of the appealin the lower Appellate Court; that the latter Court ought not to have allowedit to be raised at that stage without giving: the appellants a furtheropportunity for proving, without the aid of the inadmissible instrument, thatthey had been inducted on to the land as tenants and acquired a tenant-rightand that the appellants have been seriously prejudiced

15. As to this, it is, no doubt, true that the point seemsto have been entirely overlooked till the appeal was argued before theSub-Judge; but it is a point of law, and I think that it could be taken at anystage. Whether or not a remand ought to have been directed is another matterdependent on the circumstances. In this instance, the first circumstance to benoticed is this, that the appellants, who evidently opposed the contention inargument before the Sub-Judge, did not suggest that a remand was necessary. Inthe next place, it is to be observed that the complaint now pressed is notmentioned in the grounds of appeal to this Court. Then there is no doubt as tothe actual facts. That Chandra Kant Majumdar was, and that it was wellunderstood throughout that he was, a ryot is clear. It is clear from thereference near the beginning of the Munsifs judgment to the karfa (i e.,under-ryots) settlement alleged to have been made by that person with Rajai,the plaintiffs predecessor; the fact was apparently conceded before theSub-Judge; and it is admitted before us. What happened was, as I have alreadyindicated, that the provisions of Section 85 of the Tenancy Act were entirelylost sight of by every one until the hearing in the lower Appellate Court; and,when the point was raised there, it was argued on the one side that theappellants could not succeed because they had no title under the sub-lease, andon the other that their title under it was good save as against the superiorlandlord, who had never disputed it. That being so, I am not disposed to ordera remand now; and I need not, therefore, consider the further question whetherit would have been open to the appellants, whose under-tenancy admittedly beganwith the execution of the permanent sub-lease, to establish such anunder-tenancy aliunde merely by proving--for that is all that is suggested tous by the learned Vakil on their behalf--that they paid their lessor nazaranaon the execution of the sub-lease and rent in pursuance of it. In the result,then, I would dismiss the appeal with costs, fixing the hearing fee at one goldmohur.

Beachcroft, J.

16. I entirely agree. In fact I have recently taken the sameview in Second Appeal No. 2954 of 1911.

17. Assuming that Sub-section (3) of Section 85 was intendedto be for the benefit of the superior landlord alone, much of the difficultythat may be felt with regard to Sub-section (2) appears in the first instanceto have been created by the remark in Tamijuddi v. Asgar Howldar36 C. 256 : 1Ind. Cas. 942 :13 C.W.N. 183 that it must be taken to have been enacted for thebenefit of the landlord alone, because it was placed between Sub-section (1)and Sub-section (3). I do not think the position of Sub-section (2) leads tothis conclusion. The scheme of the section is open to another explanation. The1st sub-section contemplates sub-leases other than by registered instrument.Such are not to be valid at all against the superior landlord, if made withouthis consent. The 2nd sub-section provides, in effect that no subleases for morethan nine years are to be valid at all, whether with or without the superiorlandlords consent. These two sub-sections contemplated at the time that theAct was passed, and still contemplate, acts in the future. The 3rd sub-section,accepting the view that judicial decision has placed upon it, provided that asub-lease for more than nine years, already in existence at the passing of theAct, should be ineffectual as against the superior landlord, in cases where hehad not given his consent after the expiry of nine years from the commencementof the Act. This contemplated an act in the past. I do not think any soundargument, the effect of which is to restrict the general terms of Sub-section(2), can be based on the fact that both of two future contingencies are dealtwith before reference is made to a past contingency.

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Telam Pramanik vs.Adu Shaikh and Ors. (14.02.1913 - CALHC)