PROBODH CHANDRA MITTER Vs. HARISH CHANDRA NASKAR

JUDGEMENT

(1.) This appeal arises out of a suit for rent under the following circumstances. One Purna was the proprietor of an estate in the Sunderbans. He sold an 8-annas share of the estate to one Chandra Nath on the 9 August 1897. The latter got his name registered in respect of the 8 annas share under the Land Registration Act. About six years afterwards, on 12 May 1903, the defendant No. 1 took a lease of 400 bighas of land from Purna alone and executed a registered kabuliyat in his favour, agreeing to pay a fixed rent of Rs. 350. He appears to have paid rent for some years to Purna alone. Purna died leaving two sons, and the plaintiff is the ijaradar of an 8-annas share of the estate from the sons of Purna whose names were registered in respect of the 8-annas share. The plaintiff brought a suit against the defendant for the rent reserved in the lease. The defendant pleaded that he had paid an 8-annas share of the rent to the representative of Chandra Nath, who was registered as proprietor of an 8 annas share of the estate under the Land Registration Act, and that, therefore, the plaintiff was not entitled to rent in respect of the 16-annas share. The Courts below have given effect to this contention and the plaintiff has appealed to this Court.

(2.) Now, the name of Purna was registered under the Land Registration Act in respect of an 8 annas share, and, although the name of Chandra Nath was registered in respect of the other 8-annas share, he had nothing to do with the lease which was granted by Purna alone and without reference to his so sharer, Chandra Nath. It appears that the land was not cultivated at the time when it was let out, as it was to be held rent-free for the first few years. The position, therefore, was this: one of the co-sharers alone let out a portion of the land of the estate in order to make a profitable use of it by bringing it under cultivation through his tenant. Whether Chandra Nath had similarly let out other lands or not and what the arrangement was between the co-sharers, we do not know, But this much is certain that Chandra Nath had nothing to do with this lease of 400 bighas.

(3.) The Court below has relied upon the case of Abdul Aziz V/s. Kanthu Mullick 10 Ind. Cas. 467 : 38 C. 512 : 13 C.L.J. 693, which lays down: there can be no estoppel against an Act of the Legislature." That is a proposition which is not disputed. It further gays that "An unregistered part-proprietor of an estate is not entitled to succeed am against the defendant, who, relying upon Section 60 of the Bengal Tenancy Act, has established that his debt has been discharged by payment of rent to the registered proprietor." In that case the name of the part-proprietor (the plaintiff) was not registered, and it was pointed out by the learned Judges that there was no contest between two persons both of whom were registered as proprietors under the Act. What the precise position might have been if there had been a contest between two persons both of whom were registered under the Act, was not considered in that case.