DEONANDAN PRASAD SINGH Vs. GIRDHAR PRASAD

JUDGEMENT

(1.) On 16 July 1929, the defendants second party granted a usufructuary mortgage to the plaintiff's family and on the same day the mortgagees executed a lease whereby the mortgagors became their tenants at an annual rent of Rs. 562.8-0. This amount of rent was the amount which in the usufructuary mortgage bond had been mentioned as interest on the mortgage money. On 20 December 1931, the defendants second party by a registered document assigned their lease to the defendants of the first party who gave notice of the assignment to the plaintiff and his family and at the same time tendered rent for the years 1337 and 1338 Fs. This tender was refused because the mortgagees claimed interest which was not tendered. Subsequently, in a partition, the whole interest in this mortgage was assigned to the plaintiff who instituted the suit out of which this appeal arises claiming arrears of rent from the defendants first party. The Subordinate Judge dismissed the suit on the ground that the plaintiff was not registered and so under Section 78, Land Registration Act, he was not entitled to recover rent. He also held that the claim for the years 1337 and 1338 Fs. was barred by limitation. On appeal, the District Judge confirmed the finding that the claim for 1337 and 1338 was barred by limitation under Art. 2, Schedule 3, Bihar Tenancy Act; but he allowed the plaintiff's claim for the later years holding that Section 81, Land Registration Act, applied because there was a contract between the parties. Both parties have come in second appeal from that decision.

(2.) In Second Appeal No. 533 of 1936, the appeal of the defendant, Mr. B.C. De argues that the learned District Judge 1939 erred in holding that the suit was governed by the provisions of Section 81, Land Registration Act. Mr. De argues that if the plaintiff is to take advantage of the provisions of Section 81, he must show that there was a contract between himself and the defendant whom ha seeks to make liable. He cites the decision in Iswar Chandra V/s. Kail Charan wherein it was held that the contract must be actually between the parties to the suit. In Probodh Chandra V/s. Harish Charan A.I.R (1921) . Cal. 145 and Surya Kanth v. Ananda Mohan A.I.R (1914) . Cal. 890, it was held to be sufficient if there was a contract entered into between the predecessors of the parties or the successor of one of the parties and another original party. In the present case, the contract was between the plaintiff and the assignors of the appellants; but when the appellants took the assignment of the contract and gave notice to the plaintiff that they were henceforth bound by this, contract by actually making a tender of rent, it could not be said that their relationship was not created by a written contract to which each have become a party.

(3.) On behalf of the appellant in Appeal No. 542 of 1936 Mr. Section M. Mullick argues that the suit is not a suit for arrears of rent but merely for interest on the mortgage money, and that it should therefore not be regarded as a suit governed by the provisions of the Bihar Tenancy Act but as a mere money suit based on a registered contract. In Abdullah Niranjn V/s. Surajubala Debi (1912) 35 All. 48, the Privy Council held that a transaction of this kind where a proprietor executes a usufructuary mortgage and then takes a lease from his mortgagee is to be regarded as essentially one transaction; and from that decision we may infer that if the plaintiff took possession of the mortgaged property his right to profits would be limited to Rs. 562-8-0 annually; but that does not affect the question of whether the relationship of landlord and tenant has been established between the parties. In Satya Niranjan V/s. Suranjubala Debi , the Calcutta High Court, whose decision was affirmed by the Privy Council, observed that a lease executed for the purpose of collecting rent was not excluded from the operation of the Transfer of Property Act by Section 117 of that Act. Mr. Mullick suggests that this would necessarily imply that such a lease -was not affected by the Bengal Tenancy Act; but although a thika lease may be governed by the provisions of the Transfer of Property Act this lease creates a tenure as defined by Section 5 (l), Bihar Tenancy Act and a suit by the lessor for arrears of rent is governed by the provisions of the Tenancy Act. In Rajniti Prasad Singh V/s. Commissioner of Income-tax B. & O. A.I.R (1930) . Pat. 33. a special Bench of this Court held that in a transaction such as that which took place on 16 July 1929, the rent recoverable by the mortgagee was to be regarded not as agricultural income within the meaning of the Income- tax Act but as interest on the money advanced.