NAKUL CHANDRA POLLEY Vs. KALIPADA GHOSAL

JUDGEMENT

(1.) This is a Letters Patent appeal from the judgment of our learned brother McNair J. The plaintiffs brought a suit for declaration of their occupancy right in char lands. The matter in controversy now relates to a 1/3 share of the holding which was originally owned by one Sahadeb. He executed an unregistered kobala in favour of the defendant-respondent on 25th April 1931 and a registered kobala in favour of plaintiff 1, the appellant before us, on 15th September 1933. The question now is whether the appellant shall have priority over the respondent whose claim is based on the previous unregistered kobala. The Munsif held in favour of the plaintiff and decreed the suit. On appeal, the Subordinate Judge held against the plaintiff and dismissed the suit with regard to that portion of the property which is covered by the previous kobala in favour of the defendant. In second appeal, McNair J. upheld the decision of the Subordinate Judge but allowed further appeal.

(2.) The question turns upon the applicability of Section 53-A, T.P. Act. The first point taken before us is that Section 53-A, T.P. Act, does not apply because the transfer must be covered by the provisions of Section 26(c), Bengal Tenancy Act. It is pointed out that according to the latter Section a transfer must be by a registered instrument with notice to the landlord and on payment of landlord's fee. These conditions were not complied with in the case of the defendants. So it is contended that the defence under Section 53-A, T.P. Act, is not available to the defendant. The answer to this contention is that the terms of Section 53-A do not exclude the case of a transfer which in order to be completed must be governed by the special provisions of the Bengal Tenancy Act. It is contended that the Transfer of Property Act and the Bengal Tenancy Act are mutually exclusive. But the converse proposition cannot be accepted that where they are not mutually exclusive even then the Transfer of Property Act should not apply. The Transfer of Property Act enacts the general law on the subject of transfer. There is nothing in this Act or in the local Act to indicate that the general provisions of the Transfer of Property Act shall not apply to agricultural leases. Where it is intended that agricultural leases should be excluded it is specially provided for, as in Section 117, T.P. Act, which itself indicates that but for such special and express provision the Transfer of : Property Act would apply to agricultural holdings and there is no warrant for the proposition that the Bengal Tenancy Act excludes a defence such as is provided for by Section 53-A, T.P. Act. It is contended that Section 26(c), Bengal Tenancy Act, not only provides for the registration but also for bringing in a third party, namely the landlord to whom notice has to be issued and certain fees are to be paid. But where these conditions are not complied with it only means that the transfer has not been completed in the manner prescribed therefor by law, which again satisfies one of the conditions for the applicability of Section 53-A, Transfer of Property Act.

(3.) It is next contended for the appellant that the respondent is not entitled to rely on Section 53-A because such a defence was not expressly taken in the first Court and no issues were framed upon it. The question however was mooted in the first Court and raised again in the lower Appellate Court which considered it and came to the necessary finding of fact. It is expressly found that all the requirements of Section 53-A, T.P. Act, are there, namely that the contract was in writing, that the defendant obtained possession in pursuance of the contract and that the plaintiff had notice of the transfer in favour of the defendant. I must therefore agree with McNair J. in holding that there is no substance in this point. It is contended that the findings of the Subordinate Judge are not adequate because the question as to whether consideration was paid to the defendant was not considered. This argument is not correct. The learned Judge has expressly found that the defendant redeemed two mortgage bonds which had been executed by Sahadeb in favour of the plaintiff. The learned Judge has gone on to find that the defendant was in possession by virtue of a kobala and that the plaintiff after being acquitted in a murder case took advantage of the defendant's kobala not being registered and got Sahadeb to execute a registered kobala in his favour. This is another test of the mala fide nature of the transfer in favour of the plaintiff.