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1895 (6) TMI 1

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..... ainst him, then in my opinion the case was rightly decided, as such a defect cannot be cured by anything which is done after the suit has been commenced. 3. The distinction has long been well known, and was recognized by Malins, V.C., in the case of Hassall v. Wright 10 EL.R. 509, in which he drew a distinction between the English Copyright Act, by which it is provided that until registration of the copyright, no person interested shall be able to maintain any suit at law or in equity, and the Patent Law Amendment Act, which simply enacts that, until an entry has been made, the grantee or grantees of the Letters Patent shall be deemed, and taken to be, the sole and exclusive proprietor or proprietors of the Letters Patent. See also Lucas v. Dixon IL.R. Q.B.D. 357. 4. The property in respect of which the dispute arose in the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. Cal. 708 was in the Mofussil, and the provisions of the Bengal Tenancy Act apply to that case. 5. If Section 78 of Act VII of 1876 be read alone, it may no doubt be contended that its only effect is to limit the mode in which the plaintiff can prove his title; but it must be read together with S .....

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..... t be decided on the group of sections of the Land Registration Act, of which Section 78 is one. That section provides that no person shall be bound to pay rent to an unregistered proprietor, and if the section stood alone, there would be some ground for the contention that its meaning was that no decree for rent should be given in favour of any person whose name was not registered as proprietor, and that the defect would be cured, if the necessary proof were forthcoming at the trial. But Section 79 provides that the receipt of the person whose name is registered as proprietor shall afford a full indemnity to any person who pays rent to him, and the consequence of this must be that if an unregistered proprietor sues a tenant of the land for the rent, the tenant can discharge his liability by paying the rent to a third person, whose receipt would be a valid discharge as against the plaintiff, though his suit was actually pending when the money was paid, and though he knew of and objected to the payment, and this, notwithstanding the fact that the plaintiff, although he must fail in that suit, and may be ordered to pay the costs of it to the tenant-defendant, was entitled to get the m .....

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..... ore us, he has produced a certificate of registration, the suit cannot proceed. 15. The object of the Land Registration Act, as shown by Mr. Hill from reference to previous legislation from 1793, is, on one hand, to afford protection to Government, on behalf of the public revenue, so as to facilitate the realization of revenue from proprietors of estates; and, on the other hand, to afford protection to such proprietors by registration of their titles on proof of their possession. It has been shown that in early legislation it was not contemplated to afford any protection to tenants by the process of registration, though no doubt under the terms of the Act of 1876, this matter has been expressly provided for in regard to their obtaining valid receipts for payments of rent which they might desire to make. Still the primary, and, indeed, the principal, object of the Act of 1876 is clearly to ensure registration. This is shown by the title of the Act and its preamble. It imposes an obligation on all proprietors, etc., of estates or revenue-free properties to apply for the registration of their names within six months from the date of succession to, or assumption of, charge of such p .....

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..... d proprietor exists and is recognized by that law. To ensure this object the intention of the Legislature in Section 78 was to put additional pressure on a proprietor to cause his name to be duly registered. We cannot find that it was in any way intended to deprive him of his right to the rent which, by succession, inheritance, or the acquisition by transfer inter vivos, he might have obtained. No doubt, the words of Section 78 are stringent, but it becomes necessary to consider whether, under the principles set out in Maxwell on Statutes, and having regard to the object of the Act, the Act should be construed as seeking to attain this object by means short of what is contended for, on behalf of the defendant, which would amount to what may be described as an outlawry of the plaintiff. There may no doubt be cases, on one hand, in which a proprietor, by an obstinate refusal to register, may have disentitled himself to any consideration; but, on the other hand, it must not be forgotten that there are many cases in which prompt registration may be absolutely impossible. In cases of this description a bond fide proprietor in possession of an estate, or portion of an estate, who may be .....

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..... terms of Act XXVII of 1860, Section 2, are not unlike those of Section 78 of the Land Registration Act, 1876. It declares that no debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person or any part thereof, except on production of a certificate, etc. Section 78 of the Land Registration Act, 1876, declares that no person shall be bound to pay rent to an unregistered proprietor, c, but it does not provide that a voluntary payment shall not obtain a valid receipt if made to an unregistered proprietor with title. In neither case would an uncertificated creditor be able to obtain from a Court an order under which payment of the debt or rent could be obtained. But in both cases payment could be voluntarily made (though no doubt at some risk) if the debtor were satisfied of the right of the creditor to the particular debt. It has been held in numerous cases that a person claiming to collect debts due to a deceased person can institute a suit to recover them without a certificate under Act XXVII of 1860, though he is bound to obtain and exhibit that certificate before he is entitled to a .....

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..... etc. A similar provision is made by Section 131 of the Transfer of Property Act for payment of a debt to the creditor without notice or knowledge of an assignment of it to a third person. Such a provision is made for the protection of the tenant or debtor, but it does not give to the payee the right to retain money so paid, or debar a suit by the person entitled to the money to recover it. Indeed, Section 81 of the Land Registration Act contemplates the recovery of a payment made under Section 79, for it declares that nothing in the three last preceding sections (including Section 79) shall be held to prevent any person deeming himself entitled to any sum of money from recovering such money by due process of law from any other person who has received the same. The law thus recognizes the right of an unregistered proprietor by enabling him to bring a suit to recover rent paid to the last registered proprietor whose title to the property has passed to him. It is not declared that a certificate of registration must be obtained before such a suit can be brought or a decree obtained. This would, however, come into effect only in the case of the transfer of a proprietary interest inter .....

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..... produced when the suit came on for trial the trial before the Second Judge of the Small Cause Court can proceed. 28. I would add that, for the reasons stated, the case of Dhoronidhur Sen v. Wajidunnissa Khatoon I.L.R. Cal. 708, is no bar to the trial being held by the Judge of the Small Cause Court, because that judgment cannot be maintained on the terms of the Land Registration Act, 1876. The Bengal Tenancy Act became law about nine years after the Land Registration Act, and it is stated that under that law the case was rightly decided, but that Act does not apply to Calcutta, and therefore it is unnecessary to consider that case from that point of view, so far as this reference is concerned. Mr. Hill, who appeared for the plaintiff, declined to argue that point, because it was unnecessary for the purposes of the reference before us in regard to the trial by the Judge of the Court of Small Causes of Calcutta. Beyond stating that the reasons which have been advanced for the correctness of that decision under the application of the Bengal Tenancy Act have failed to remove the doubts which I entertain, I desire to express no opinion on that point until it has been fully argued bef .....

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..... necessary to put pressure upon the proprietors to register. The chief pressure brought to bear is the infliction of severe penalties for non-registration : see Section 65. But there is another form of pressure, almost as formidable, and this is found in Section 78, which entitles a tenant sued for rent by an unregistered proprietor to put the claimant to proof of registration, and in default of such proof, if called for, to claim and obtain the dismissal of the suit. The tenant defendant is under no obligation to call for such proof. It he does not do so, and the claimant proves that he is the true owner, that the relationship of landlord and tenant between himself and the defendant exists, and that the rent sued for is due, he will be entitled to a decree. 38. No person is compellable (and I take it that bound in Section 78 is equivalent to compellable ) to pay rent or any other demand until a decree for the same has been passed against him. What will entitle a plaintiff to a decree is a matter of proof, the stringency or otherwise of which depends, as a general rule, upon the action of the defendant. 39. No doubt the question becomes a much more difficult one when we com .....

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..... implied, and that he could sue them for rent. I am aware of no authority for this proposition. If the relationship of landlord and tenant does not exist, I do not see how the plaintiff could sue the defendants as tenants. The case was appealed under Section 15 of the Letters Patent, and was heard by GARTH, C.J., and MITTER, J. The learned Chief Justice, in delivering the judgment of the Court, says: The plaintiff is the registered owner of a revenue-paying estate under Bengal Act VII of 1876, and in this, and other analogous cases, he sues certain tenants of that estate to recover rent for the lands which they hold. And for the purposes of the question which we have to determine, we must assume that he has proved no title to the rent which he claims beyond the mere fact that he is the registered proprietor. The question is whether that fact alone entitles him to recover rent from the defendant. The Court of First Instance considered that it did, but the Subordinate Judge and the learned Judge of this Court have both decided against the plaintiff. He now appeals to us relying on the language of Section 78 of Act VII of 1876. That section says that, 'No person shall be bound to .....

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..... t is to be found in the judgments, it appears that Section 60 was, or might have been, applicable to it. The Bengal Tenancy Act has no application to the present suit, and a decision upon the proper construction to be put on Section 60 is wholly unnecessary for the purpose of determining whether the suit can proceed. I would answer the second question by saying that the case, as reported, is wrongly decided. S.C. Ghose, J. 49. This is a suit for rent by an assignee of certain premises. The plaintiff had not, upon the date of the institution of the suit, got his name registered under the Land Registration Act (Bengal Act VII of 1876); but on the day of hearing produced the necessary certificate of registration which he had in the meantime obtained. 50. The property, in respect of which the suit for rent has been brought, is situate in the town of Calcutta, and therefore the provisions of the Bengal Tenancy Act have no application to this case; but it has been held by the learned Judges of this Court, to whom the case was submitted for opinion by the Small Cause Court, that the Land Registration Act is applicable. They were not, however, agreed upon the two questions which t .....

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..... ll have been registered under this Act. Section 79 is as follows: The receipt of any proprietor, manager or mortgagee, whose name and the extent of whose interest is registered under this Act, shall afford full indemnity to any person paying rent to such proprietor, manager or mortgagee. Section 81 provides: Nothing contained in the three last preceding sections (i.e. Sections 78, 79 and 80) shall be held to interfere with the conditions of any written contract, or to prevent any person deeming himself entitled to any sum of money from recovering such sum by due process of law from any other person who has received the same. 53. The first question that presents itself to one's mind is, whether the Legislature intended that the right to the rent due from a tenant should be vested in the recorded proprietor, even though he has transferred his interest to another person; for, if that is so, there can be no question that the plaintiff in this case had no right to the rent, or any cause of action against the tenant, at the time of the institution of the suit. It will, however, be observed that the words of Section 78 are : No person shall be bound to pay rent to any perso .....

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..... f the property. And the question then arises whether he is entitled to institute a suit for recovery of the rent before his name is registered, or, in other words, whether his suit must be dismissed simply because he had not, upon the date of the institution of the suit, obtained registration of his name in the Collector's register. 57. There can be no doubt, I think, having regard to the language of Section 78, that the unrecorded proprietor cannot recover a decree for the rent before he gets his name registered. But that is a very different thing from holding that he cannot institute a suit for the purpose of obtaining that relief, and that his suit must be dismissed, though he may produce the certificate of registration on the day of trial. 58. There are various statutes in this country and in England in which a clear distinction is found to exist between the right to maintain a suit and the right to obtain a particular relief. I need only refer to some of them. Section 3 of the Act XL of 1858 enacted that, No person shall be entitled to institute or defend a suit connected with the estate of which he claims the charge, until he shall have obtained such certificate. .....

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..... accrue to the tenant if both the registered and the unregistered proprietor were allowed to maintain a suit at one and the same time, but there can be no doubt that the Court will make a decree only in favour of the party found to be rightfully entitled to recover the rent claimed; and it seems to me that if the tenant's conduct is blameless the Court in making the decree will see its. duty to award to the tenant such costs as he may be justly entitled to. 61. For these reasons I would answer the first question referred to the Full Bench in the affirmative. Beverley, J. 62. I agree with the learned Chief Justice as to the answers that should be given to both the questions that have been referred to the Full Bench. 63. It seems to me to be clear, from the wording of Sections 78, 79 and 81 of the Act, that an unregistered proprietor, manager or mortgagee of an estate, has no cause of action upon which he can institute a suit for the rent. No person shall be 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, or as mortgage .....

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..... of that Act was very different from that of Section 78 of Bengal Act VII of 1876. 67. Section 2 of Act XXVII of 1860 ran as follows: No debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person or any part thereof except on the production of a certificate to be obtained in manner hereinafter mentioned, or of a probate or letters of administration, unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives and not from any reasonable doubt as to the party entitled. 68. Under that section it was held that the representative of a deceased person might institute a suit for a debt due to the estate of the deceased before he had obtained a certificate, but that a certificate must be produced before the Court could grant relief, unless such certificate were dispensed with, in the discretion given to the Court. 69. This view of the law has been adopted in Section 4 of the Succession Certificate Act (Act VII of 1889), the wording of which is also very different from that of Section 78 of the Land Registration Act. 70. Section 3 of .....

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