BARODA PROSAD ROY CHOWDHURY Vs. TARAK NATH MANDAL

JUDGEMENT

(1.) The only question that has been argued in this case is whether the evidence accepted by the learned Subordinate Judge justifies his conclusion that the plaintiff-appellant recognised the defendant s tenancy.

(2.) It was held in the case of Deb Narain Dutt v. Baidya Math Madak Napit 2 Ind. Cas. 148 : 14 C.W.N. 68 that this is a question of law and can be dealt with in second appeal.

(3.) The evidence upon which the learned Subordinate Judge relied may be divided into three portions. The first consists of rent receipts, in the great majority of which the defendant is described as marfatdar. It appears that the original tenant was one Nitai Bairagi who died sometime before 1881. The defendant, Tarak Nath Mandal, purchased from Nitai s widow in 1881, and thereafter appears to have paid rents and obtained receipts in which Nitai Bairagi was mentioned as the real tenant and he himself as marfatdar. If the case depended on these receipts I should have been strongly inclined to accept the argument of the learned Pleader for the appellant. It was held in the case which I have already cited that receipts given to a transferee of a holding in which he is described as marfatdar do not amount to a recognition of the transfer. With that decision I am in entire agreement. As I understand the term, marfatdar implied that the person so called is acting in some way as an agent for another and is not and cannot be paying rent on his own account like the dakhil kars in the case of Naba Kumari Debi v. Behari Lal Sen 6 C.L.J. 122 : 2 M.L.T.433, 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 34 C. 902. Nor do I feel greatly pressed by the fact on which the Munsif laid stress that in this case Netai Bairagi was dead and consequently the defendant could not have been paying rent as an agent for him. It is customary in these provinces for both holdings and tenures to remain in the names of their original tenants long after these tenants have died; and it would be impossible to hold that any person who pays rent on account of a holding immediately after a tenant s death and obtains receipts in which he is described as marfatdar for the old tenant is thereby recognised by the landlord as the new tenant. If then the case depended on these receipts I should be inclined to hold that the use of the word marfatdar implies that Tarak Nath Mandal had not been paying rent on his own account but on behalf of the real owner of the holding standing in the name of Netai Bairagi.