NITYA RANJAN MUKHERJEE Vs. NIRANJAN CHANDRA

JUDGEMENT

(1.) This rule is directed against the appellate judgment of Mr. S. O. Chakravarty, Subordinate Judge, Burdwan affirming an order of the Munsif, Second Court, Katwa made in a proceeding under S.85A, Ben. Ten. Act. There is no dispute about the facts of this ease which lie within a very short compass. Opposite party 1 owns a fractional share in a certain putni appertaining to touji No. 93 of the Burdwan collectorate of which the proprietors are the petitioners and opposite parties 2 to 5. On 2l July, 1939, opposite party 1 presented an application before the Munsif, Second Court at Katwa for surrender of his share of the putni under section 85A, Ben. Ten. Act, on grounds, inter alia, that under the present economic conditions prevalent in the country it was not profitable for him to hold the putni any longer. The application was opposed by the petitioners, whose main contention was that S.85A was not applicable to a putni tenure. This contention was negatived by the Munsif who granted the prayer of opposite party 1, and this decision was affirmed in appeal by the Subordinate Judge of Burdwan.

(2.) The only point for our consideration in this rule is as to whether a putnidar the incidents of whose tenancy are governed by Regn. 8 of 1819 is competent to apply for surrender of the tenure under Section 85-A, Ben. Ten. Act, which was introduced by the amending Bengal Act 6 of 1938. Prior to the passing of this amending Act, the right of making a surrender to which the landlord was no party, was a privilege which was enjoyed only by a raiyat who was not bound by a lease or other agreement for a fixed period and who could surrender the holding under Section 86, Ben. Ten. Act, at the end of the agricultural year. Here also, if there was any incumbrance upon the holding or part of the holding, the consent of the landlord had to be obtained before a valid surrender could be made. Under Section 85A as it stands today any tenure-holder may apply to the Court for permission to surrender his tenure. Sub-section (2) lays down the particular form in which the application is to be made and Sub-section (3) provides that the Court after hearing the parties could grant permission for the surrender of the tenure on such equitable conditions as it might think proper. The subordinate Judge is right in saying that there is no ambiguity in the wording of the section and if this section stood alone we would have no difficulty in holding that a putni which is also a tenure would come within the purview of Section 85A. The question however arises as to whether in view of the provisions of Section 195, clause (e), Ben. Ten. Act, the operation of Section 85A can be attracted to putni tenures. Section 195, Ben. Ten. Act, says inter alia: Nothing in this Act shall affect . . . . (e) any enactment relating to putni tenures in so far as it relates to those tenures.

(3.) Certain exceptions are then made in the two subsequent clauses with regard to certain specific provisions of the Bengal Tenancy Act, with which we are not concerned in the present case. The section obviously means that the provisions of the Bengal Tenancy Act cannot override or interfere with the provisions of the putni law as contained in Regn. 8 of 1819 or any other enactment though on matters on which the putni regulation is silent the Bengal Tenancy Act may furnish the rules of substantive law or procedure by way of supplement to the putni law : Durga Prosad V/s. Brindaban Roy ( 92) 19 Cal 504 and Manoranjan Roy v. Selamuddin Ahmad(35) 61 C L J 346. In my opinion the provision of Section 85A, Ben. Ten. Act, does affect and militate against the provisions of the putni regulation as contained in Secs.2 and 3 of Regn. 8 of 1819. Section 2 of the regulation lays down: It is hereby declared that any leases or engagements for the fixing of rent now in existence, that may have been granted or concluded for a term of years, or in perpetuity by a proprietor under engagements with the Crown, or other person competent to grant the same, shall be deemed good and valid tenures, according to the terms of the covenants 6r engagements interchanged, notwithstanding that the same may have been executed before the passing of Regn. 5 of 1812.