TINKARI MUKHERJEE Vs. MAHIMA NIRANJAN GHAKRABARTY

JUDGEMENT

(1.) The only point canvassed in this appeal is whether the appellant (defendant 1) is liable for the amount of rent decreed against him. The suit is for patni rent for the period from Magh kist of 1327 to Baisakh 1330, that is, from January 1921 to April 1923. The appellant's contention is that his liability for rent had ceased from 22 March, 1922 the date on which he made a gift of this patni to his daughter-in-law. The trial Court passed a decree against the appellants up to the Magh Kist of 1329 or 17 February 1923--that being the date when the security money was paid and. the name of the transferee was registered in the zamindar's sherista. The decree was upheld by the District Judge in appeal. It is argued that the patni regulation invests the patnidar with absolute right of transfer and, therefore, as soon as the patnidar assigns his interest to any person his liability for rent ceases on and from that date. It is contended on the other side that the liability of the patnidar under the Regulation continues till the zemindar registers the transferee as a tenant and has removed the name of the original putnidar. In our opinion the respondent's contention must be upheld.

(2.) Section 5 of Regulation (8 of 1819) vests the right of alienation of a patni taluk in the holder thereof. It further says that it shall not be competent to the zeminder to refuse to register and otherwise to give effect to such alienations by discharging the party transferring his interest from personal liability. But he may demand his fee fixed at a certain percentage and may also demand security from the transferee or purchaser to the amount of one-half of the jama or yearly rent payable to him for the tenure transferred. Section 6 says that it shall be competent to the zemindar or other superior to refuse the registry of any transfer until the fee above stipulated is paid and until substantial security for the amount specified is tendered and accepted. Section 5 gives the patnidar a general right of transfer even without the consent of the zemindar but Section 6 protects the right of the zeminder and postpones the discharge of the patnidar from personal obligation till the zeminder is secured in his right to receive rent So long, therefore, as the zemindar is not satisfied that the tranrferee may be looked upon for the rent reserved he has the right to refuse to recognize the transferee. But if he wilfully refuses to approve the security tendered by the purchaser he may be compelled to accept it and give effect to the transfer without delay. These two sections read together indicate that the patnidar has the absolute right ot transfer ; but the zeminder has the right to refuse to recognise the transfer and hold the patnidar liable under the obligation created by the contract until the transferee gives substantial security which is accepted by the zeminder or which he is compelled by the civil Court to accept. A great deal of argument has been wasted on what should be the general law in a matter like this or whether under other enactments liability of a lessee should continue after the transfer These sections of the patm law have been interpreted in several cases In Khettur Paul Singh V/s. Luckhee Naram Mitter [1871] 15 W.R. 125 the question was between the patmdar and the durpatmdar It arose under Section 5 and 6 patm Regulation The suit was brought by durpatnidar to recover from the patnidar certain sum which he had paid as rent to the zemindar in order to save the patm The durpatnidar, however, had not got his name registered in the zemindar's sherista , and it was, therefore, objected that the payment of rent made by him was voluntary payment It was held that though the durpatnidar was not registered in the zemindar's record he had sufficient interest to protect it from sale In coming to this conclusion the learned Judges observed In all cases until the transfer is registered the old tenant and the tenure itself are liable for the rent due.

(3.) The case was carried to the Privy Council Lakhinaram Mitter V/s. Khettro Pal Singh [1873] 20 W.R. 380. Their Lordships referred to several reported cases in which it was held The grantor of a darpatm taluk is not bound to recognize the assignee of the tenure until the transfer has been registered in his shensta and that, until such registry has been effected he may sue the original durpatnidar for the rent and sell the tenure in execution of a decree obtained in such suit without notice to the assignee