KUMAR JAGADISH CHANDRA SINHA Vs. ISHAN KUMARI DEBI

JUDGEMENT

(1.) The point for determination in this case is whether the Civil Court has power under Section 88, Clause (2), Ben. Ten. Act, to apportion the rent of a putni tenure amongst the cosharer putnidars according to their share. The Courts below have come to the conclusion that Section 88, Clause (2) applies to putni tenures. Section 88, Clause (2) is in these terms: The Civil Court may, on an application made on that behalf by the tenant within six months from the date of notice to the landlord hereinafter provided, by an order in writing direct such division of the tenancy or distribution of rent as it considers fair and equitable or annul or modify the division or distribution made by the landlord, if considered unfair and inequitable.

(2.) Then follow certain provisions which are not material for the purpose of the present case. Section 195, Clause (e), Ben. Ten. Act, so far as is material for the purpose of the present case runs as follows : "Nothing in this Act shall affect any enactment relating to putnitenures in so far as it relates to those tenures." The question therefore arises as to whether Section 88, Clause (2), Ben. Ten. Act, affects any provision contained in the Putni Regulations. Section 6 of the Putni Regulations provides: It shall be competent to the zamindar or other superior to refuse the registry of any transfer, until the fee above stipulated be paid and until substantial security to the amount specified be tendered and accepted. Provided however that if the security tendered by any purchaser or transferee, should not be approved by the zamindar, and the party tendering it shall be dissatisfied with such rejection, he shall be competent to appeal therefrom by petition or common motion in the Civil Court of the district, which authority, if satisfied of the sufficiency of the security tendered, shall issue an injunction on the zemindar to accept it, and give effect to the transfer without delay. It is hereby provided that the rules of this and of the preceding Section shall not be held to apply to transfers of any fractional portion of a putni taluk, nor to any alienation other than of the entire interest, for no apportionment or the zemindar's reserved rent can be allow-ed to stand good, unless made under his special sanction.

(3.) The last clause of this Section definitely lays down that the rent reserved by the putni lease cannot be apportioned without the special sanction of the zemindar. If Section 88, Clause (2) be made applicable to putni tenures, it would affect the last portion of Section 6 of the Putni Regulations. I am therefore of opinion, that under Section 88, Clause (2) the Civil Court has no power to order distribution or apportionment of the rent of a putni tenure. In the case before us the learned Subordinate Judge has also observed that the Putni Regulations do not apply to the tenure in question as it is not a putni within the meaning of that Regulation. The putni lease was not before the Lower Appellate Court. The learned Advocate for the zemindar petitioner however produced before us the original putni kabuliyat. It is clear from the terms of that kabuliyat that the tenure created by it is a putni as contemplated by Regn. 8 of 1819. The Courts below were, therefore wrong in allowing the cosharer putnidar's application for apportionment of the putni rent. The result, therefore is that this Rule is made absolute, the orders of the Courts below are set aside and the application of the opposite party putnidar for distribution of the putni rent under Section 8 of the Putni Regulations is dismissed. There will be no order for costs in this Rule. Narsing Rau, J.