MT WALIHAN Vs. PARMESHWAR NARAIN PATAKH

JUDGEMENT

(1.) This is an appeal by the defendants, the transferees of an occupancy holding which was not transferable with out the consent of the landlord. The tenant transferred 13 kathas by sale deed dated 31 March 1931, the entire holding being of 13 kathas 14 dhurs; but the Courts below have held that the exclusion of 14 dhurs was purely nominal and that in fact the whole holding was transferred. This it was held amounted to an abandonment of the entire holding thereby giving the landlord the right to re-enter. Such was the decision and decree of the Munsif dated 13 December 1933, which was upheld on appeal by the District Judge on 15 September 1934. Pending a second appeal to this Court, the Bihar Tenancy Act came into force and the present appeal now rests not on the contention that the Courts below were wrong in the view they took of the law as it stood at the time, but that since the passing of the Act the consent of the landlord to such a transfer is deemed to have been given under certain conditions and those conditions have been fulfilled. The section of law applicable in this case is 26-0 which deals with transfers made on or after 1 January 1923 and before the commencement of the Bihar Tenancy (Amendment) Act. The transferee under this section is permitted to pay to the landlord or deposit with the Collector, in accordance with Sub-section (1) of Section 26.E, a transfer-fee and on his doing so and complying with the other requirements of Section 26-E, the consent of the landlord is, under Section 26-0(3), deemed to have been given on the date on which the landlord's transfer-fee having been deposited with the Collector, the receipt for the same is granted by the Collector. The appellant has asked us at the hearing of this second appeal to admit and accept in evidence a receipt granted by the Collector on 18 June 1936 for the sum of Rs. 12. The respondent not objecting and this being a piece of evidence which in the nature of things could not be produced before, we have admitted it in evidence. It shows that the deposit has been made with the Collector and therefore under Section 26-0 it ought to be deemed that the landlord has consented to the transfer.

(2.) For the respondent the contention that Secs.26.N and 26-0 were not intended by the Legislature to have retrospective effect is hardly maintainable in face of the Privy Council decision in K.C. Mukherjee V/s. Mt. Ram Ratan Kuer , but it is pointed out that the terms of Secs.26.N and 26.0 are not identical and it is argued that Section 26-O can only come into operation if at the date of making the payment and obtaining a receipt from the Collector there is a subsisting title in the transferee and it is said that in this case the Courts below having decreed the landlord's suit in ejectment, the title of the transferee was extinct and could not be revived by a subsequent deposit of the amount. The argument is at first sight attractive; there are no doubt difficulties in the way of holding that a title once finally extinct can be revived in such a manner. But can it be said that the title of the transferee had become extinct? The title of the transferee is from the outset good against all the world except the landlord and does not in my opinion become extinct by the passing of a decree against him unless and until such decree has become final as it might by the lapse of the period of limitation for an appeal and the omission of the defendant to file an appeal against the decree. Failing that, the title can hardly be deemed to be extinct while a second appeal is pending from the decision. To extinguish it, there must have been a final derision of the litigation.

(3.) Therefore I think that this appeal must be allowed as the effect of the deposit is that the landlord is deemed to have consented to the transfer. The decree of the Courts below must be set aside and the suit dismissed; but in the circumstances of this case as the suit at the time of its institution was a good suit, there should be no order for costs. Mohamad Noor, J.