# klarch ,4• • • • Appeal dismissed . CHANDRANATH MUKHERJEE v. TUSHARIKA DEBI AND OTHERS

- **Citation:** [1959] 1 S.C.R. 226
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 39of1955
- **Bench:** B. P. Sinha, Jafer Imam, SuBBA RAO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/klarch-4-appeal-dismissed-chandranath-mukherjee-v-tusharika-debi-and-others-1587
- **Pages:** 10

## Headnote

• Permanent Tenure-Right of successor to recover arrears of rent
by suit-Notice of sitccession to landlord within six months, if
mandatory-Mutation in landlord's rent roll-Mode of proofBengal Tenancy Act (Act VIII of.,r885) as amended by Bengal Act
JV· of r928, ss. r5, r6.
The time limit of six months provided by s. 15 of the Bengal
Tenancy Act within \vhich a tenure-holder has to give notice of
his succession to the landlord or have his name mutated in his
rent-roJI is not mandatory but directory in character and the,l)nly
effect which non-observance of that time-limit can have under •
s. 16 of the Act, is to postpone his remedy to recover arrears of
rent by way of suit till such time when he performs the duty cast
upon him by s. 15 .,f the Act, but it cannot, by itself, bar the
remedy for all time to come., Section 16 is a penal provision and
must be subjected to its statutory limitation and the penalty it
• imposes cannot be extended by implicati<'m.
Consequently, in a case where the sepatnidar resisted the
durpatnidars' suit for recovery of arrears of rent ou the ground,
inter alia, that they had not got themselves mutated in the fand-
)ord's records under s. 15 of the Bengal Tenancy Act and as such
•
•
• •
•
I
I
S.C.R.
~UPREME COURT REPORTS
227
the suit was barred under s. 16 of the Act and the courts below
found on the evidence ad duced by the durpatnidars that the
landlord had accepted rents from them and granted receipts after
ordering mutation of their names in the rent-roll :
Held, that the courts below were right in holding in favour
of the durpatnidars that there was the necessary mutation in the
landlord's rent-roll.
•
The factum of mutation in the landlord's rent-roll can be
proved not only by the production of original rent-roll or its
certified copy but, failing these, also by other secondary proof of
mutation.
•

## Text

226
SUPREME COURT REPORTS
[1959]
• x95B
adopted by the respondent in the present litigation.
The main pleas raised by the respondent against the
K8'havlal Lallu- binding character of the contracts themselves as well
bhai Patel
·
t th
th •t
f L
"d
t
·
h 1
.v.
as agarns ·. e au or1 yo
axm1 as o write t e etter
Lalbhai Trikumlal for extension of time have been rejected by both the
Milfa Ltd.
courts below, and the only ground on which the respondent succeeds before us was made on behalf of the
Gajendragadkar J. respondent for the first time in appeal. Under these•
circumstances we think the fair order as to costs would
be that parties should bear their own costs throughout.
The result is the appeal fails and is dismissed but there
would be no order as to costs throughout.
x958
klarch ,4•
•
•
•
Appeal dismissed .
CHANDRANATH MUKHERJEE
v.
TUSHARIKA DEBI AND OTHERS
•
(B. P. SINHA, JAFER IMAM and SuBBA RAO, JJ.)
• Permanent Tenure-Right of successor to recover arrears of rent
by suit-Notice of sitccession to landlord within six months, if
mandatory-Mutation in landlord's rent roll-Mode of proofBengal Tenancy Act (Act VIII of.,r885) as amended by Bengal Act
JV· of r928, ss. r5, r6.
The time limit of six months provided by s. 15 of the Bengal
Tenancy Act within \vhich a tenure-holder has to give notice of
his succession to the landlord or have his name mutated in his
rent-roJI is not mandatory but directory in character and the,l)nly
effect which non-observance of that time-limit can have under •
s. 16 of the Act, is to postpone his remedy to recover arrears of
rent by way of suit till such time when he performs the duty cast
upon him by s. 15 .,f the Act, but it cannot, by itself, bar the
remedy for all time to come., Section 16 is a penal provision and
must be subjected to its statutory limitation and the penalty it
• imposes cannot be extended by implicati<'m.
Consequently, in a case where the sepatnidar resisted the
durpatnidars' suit for recovery of arrears of rent ou the ground,
inter alia, that they had not got themselves mutated in the fand-
)ord's records under s. 15 of the Bengal Tenancy Act and as such
•
•
• •
•
I
I
S.C.R.
~UPREME COURT REPORTS
227
the suit was barred under s. 16 of the Act and the courts below
found on the evidence ad duced by the durpatnidars that the
landlord had accepted rents from them and granted receipts after
ordering mutation of their names in the rent-roll :
Held, that the courts below were right in holding in favour
of the durpatnidars that there was the necessary mutation in the
landlord's rent-roll.
•
The factum of mutation in the landlord's rent-roll can be
proved not only by the production of original rent-roll or its
certified copy but, failing these, also by other secondary proof of
mutation.
•
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
39of1955. ·
Appeal from the judgment and decree dated August
28, 1953, of the Calcutta High Court in Appeal from
Original Decree No. 97 of 1950 arising out of the judgment and decree dated April 27, 1950, of the Court of
Second Sub-Judge of Zillah Hooghly in Rent Suit No. 3
of 1949.
B. Bagchi and P. K. Ghosh, for the appellant.
N. C. Chatterjee and D. N. Mukherjee, for the respondents.
·
1958. March 24.
The following Judgment of the
Court was delivered by
'
, •
SINHA J.-The main controversy in this appeal on
a certificate granted by the High Court of Calcutta,
· against the concurrent dec!sions of the courts below,
centres rqund the true interpretation and effect of
.ss, 15 and 16 of the Bengal Tenancy Act-Act VIII
of 1885-(hereinafter referred to as the Act). · The
courts below have substantially decreed the plaintiff's
suit• for arrears of rent in respect of a se-patni tenure.
• Hence, the appeal by the defendant.
The plaintiff's ancestor, Nirmal Chandra Benerjee,
was a durpatnidar und~r the patnidar in respect of the
tenure in question.
He died leaving him surviving,
his three sons-Sat)'a Ranjan, Satya Jiban and Satya
Kiron-who became the durpatindars in respect of the
tenv-re by succession, and there is no dispute that they
were so mutated in the superior landlord's office. There
was a partition suit between ·them in the court of the
••
•
Chandranath
Mukherjee
v .•
Tusharika Debi
&- Others
Sinha ].
• '
.
Chandranath
Mukherjee
• v.
Tusharika Debi
& Others
Sinha ].
•
.
'
228
SUPREME COURT REPOR'OO
[1959]
subordinate judge at Alipur, being Title Suit No. 128
of 1946.
During the pendency of that suit, Promode
Kumar Banerjee was appointed Receiver
of the
properties under partition. Satya Jiban died during
the pendency of the partition suit. The exact date of
his death does not appear in the record. His heirs
are: his widow Tusharika Debi and liis two sons,
Uptal Kumar Banerjee who is of unsound mind, and·
Ujjal Kumar Banerjee, a minor. The Receiver aforesaid, instituted the suit out of. which this appeal
arises, for arrears of rent, against the first defendant,
now appellant, in respect of the years 1352 to
1355 B. S. He put the total claim inclusive of interest,
at Rs. 40,000 and odd, which was subsequently
reduced to Rs. 27 ,000 and odd. It is not necessary to
go into the details of the claim, because the amount
decreed is no more in controversy. To the suit• for
rent, being Rent Suit No. 3 of 1949, in the court of
of Second Subordinate· Judge, Hooghly, the heirs
aforesaid of Satya Jiban were impleaded as pr.oforma
defendants Nos. 2, 2(a) and 2(b), and so were Satya.
Kiran and Satya Ranjan as defendants 3 and 4, respectively. During the pendency of the rent suit, the
partition suit was compromised, with the result that
tlie durpatni tenure in question was allotted to Satya
Jiban's branch of the family.
Hence, the plaint was
amended by an order of the court, dated July 25, 1949,
by substituting the aforesil:id heirs of Satya J:iban as
the plaintiffs in the place of the Receiver aforesaid,
who was the original plaintiff and who1was discharged
from the record.
'I'he suit was contested on a number of grounds,
but it is now necessary only to refer to the plea in
bar of the suit, namely, that the plaintiffs substituted'
as aforesaid, and by transposition from the category
of proforma d~endants to that of plaintiffs, were not
entitled to sue for rent on the· ground that they had
not got themselves mutated rn the place of their
predecessors-in-title in the landlord's records anll that,
•therefore, this suit w.as barred under s. 16 of the .Act.
It is no more necessary to set out the facts 'bearing on
the devolution of title to the property in question,
•
• I
'
•
)
'
S.C.R.
SUPREME COURT REPORTS
229
because that was not a controversy raised' in the High
Court, and the arguments in this Court were, therefore,
confined to the technical plea aforesaid. After hearing
the parties, the learned trial judge decreed the suit for
Rs. 25,000 and odd.
The first defendant preferred an
appeal to the Calcutta High Court, and a Divisional
Bench of that Court, after hearing the parties, directed
• a limited remand to the trial court, for taking additional evidence in proof of certain documents filed by
the plaintiffs but noi properly proved at the original
trial. The trial court was also directed to submit its
findings on the question of the right of the plaintiffs
to maintain the suit in view of the provisions of
ss. 15 and 16 of the Act.
After remand, the documents on proof were again marked as exhibits 1 and
2, and the finding.· was returned by the trial court in
due course. After the receipt of the finding, the High
Court heard the appeal once again and dismissed it
with costs.
The appellant moved the High Court and
obtained the necessary certificate.
Hence this appeal.
In this Court, it was argued on behalf of the appellant that the provisions of s. 15 are mandatory; that
those pr.ovisions not having been complied with, the
bar imposed by s. 16, operates against the plaintiffs,
with the result that they are not entitled to reco"ver
the arrears of rent by suit.
Sections 15 and 16 are in
these terms :
" 15. When a succesmon to a permanent tenure
takes place, the person succeeding shall give notice of
the succession to the landlord or h~s common agent, if
any, in the prescribed form within six months from the
date of succession, in addition to or substitution of -any
otlrer mode of service, in the manner referred to in
~ sub-section (3) of section 12:
Provided that where, at the instance of the person
succeeding, mutation is made in the rent-roll of the
landlord within six months of the succession the
'
person succeeding shall not be required to give notice
under this section."
'
" 16.
A person becoming entitled to a permanent
te~ure by succession shall not be entitled to recover
by suit or ot.her proceeding any rent payable to him as
I o
•
Chandranath
Mukherjee
v ••
Tusharika Debi
& Others
Sinka ].
• ' .
I958
Chandranath
Mukherjee
• v.
Tusharika Debi
& Others
Sinka].
•
•
r
230
SUPREME COURT REPOR~S
[1959)
the holder of the tenure, until the duties imposed
upon him by section 15 have been performed."
It is common ground that the notice contemplated by
s. 15, was not given, but it was contended on behalf
of the plaintiff-respondents that the proviso to that
section had been complied with inasmuch as evidence
had been adduced by the plaintiffs and accepted by
the courts below, that the superior landlords accepted•
rents from the plaintiffs and granted them rent-receipts
in respect of the tenure in question, after ordering
mutation of their names in the r~nt-roll. In order to
bring the case within the proviso to s. 15, quoted
above, the plaintiffs served a requisition on the landlords-(!) Maharajadhiraj of Burdwan, and (2) Sri
Ramlal Bandopadhyaya, to produce all papers in
respect of mutation of names regarding the tenure in
question.
Those documents were not produced, 1:mt
the plaintiffs examined P. \V. 2-an employee of the
Brtrdwan Raj-and P. W. 3-their own employee-to
prove the necessary mutation. P. W. 2 deposed that
the plaintiffs paid Rs. IOI as fee for mutation of their
names in the office of the Maharajadhiraj of Burdwan
and that they were mutated in respect of the 8 annas'
interest. P. W. 3, similarly, proves mutation in the
ofl'l.ce of Ramlal Babu, in respect of the other 8 annas'
share. In pursuance of the mutation, rent was paid
and accepted by the landlords. The necessary order of
mutation and the rent-re@eipt--exhibits 2 and I respectively-were produced and placed on record after
being duly proved_
Nothing has been brought out in
the cross-examination of these two witnesses to detract
from the value of their evidence. Naturally, therefore,
the courts below had no difficulty in accepting their
evidence corroborated by those pieces of documentary '
evidence. But it was contended on behalf of the
appellant that M. 15 requires proof of mutation in the
rent-roll of the landlord, and the rent-roll or its certified copy, should have been adduced in evidence, and
in the absence of the primary evidence of mutation
contained in the rent-roll, the plaintiffs have failed to
prove the requisite mutation. In our opinion, there is
no substance in this contention. The landlords' rent-roll
•
•
•
. '
•
\
,·
'
..
S.C.R.
SUPREtiE COURT REPORTS
231
was not in the custody or control of the plaintiffs .
. They served requisition on their landlords to produce
those documents. As those documents were not
produced by the parties who would. ordinarily be in
possession of their rent-r9lls, the plaintiffs had no
option but to adduce secondary evidence of the mutation, namely, the order sanctioning mutation and the
"payment of rent to the superior landlord, in pursuance
of the sanction of mutation. Like any other disputed
fact, the factum of ~utation in the landlords' rent-roll
can be proved by the production of the original rentroll or by its certified copy, if available, and failing
those, by other secondary proof of mutation. In the
circumstances, we are inclined to hold that in this
case, the courts below were justified in coming to the ·
conclusion that there was the necessary mutation of
the.plaintiffs in the landlords' rent-roll.
It was next contended that there is no proof that the
mutation, even if made, had been made " within six
months of the succession". It is true that the date of
the death of Satya Jiban, plaintiffs' predecessor-in-title,
is not known, if that is the point o:(.time with reference
to which the six months' period has to be calculated.
If the starting point of time is the date of the allotm~t
of the tenure in question to the plaintiffs' share as a
result of the partition, we know that June 20, 1949, is
the date of the compromise, as appears from the list of
dates supplied by the counsM for the appellant. The
rent-receipt, exhibit 1, is dated January 4, 1950, and
the order of mutation passed by the Burdwan Raj, is
dated January 20, 1950. Apparently, therefore, the
mutation must have been effected within six months
front the date of the compromise, as a result of which
6 the entire tenure was allotted to the plaintiffs' share.
It was not argued before us that this was not a case of
succession, as contemplated by s. 15, rntmely, the death
of the last holder on the happening of which event, the
succession to the temi.re opened in favour of the plaintiffs. Satya Jiban had only one-third share in the
entire tenure by inheritance from his father. The other
two~thirds shares had been inherited by his two brothers
aforesaid. . Hi::nce, strictly speaking, succession to only
•
•
•
Chandranath
Mukherj:e
v.
Tusharika Debi
& Others
Sinha].
' ,
•
Chandranath
Mukherjee
• v.
Tusharika Debi
& Others
Sinha].
, ,
232
SUPREME COURT R~POR~S
[1959]
the one-third share of Satya Jiban, could open on his
death. But as this aspect of the case was not canvassed
before us, we need not express any opinion on it.
As
already indicated, the date of the death of Satya Jiban
not having been brought on record and if the six
months' period has to be counted from that date, it has
got to be assumed in favour of the appellant that the
mutation even if effected as found by the courts below,"
was not done within the prescribed time. It may also
be mentioned that it was not argQed before us that the
rent suit having originally been filed by the Receiver
pendente lite, who represented the entire 16 annas
interest in the tenure, the suit had been properly instituted, and no question under ss. 15 and 16 of the Act,
would, therefore, arise if any devolution of interest
took place during the pendency of the suit.
For the purpose of determining the present con\roversy, we proceed on the assumption that the mutation had not been made within six months as prescribed
by s. 15, and that this defect affected the entire interest
in the tenure in spite of the fact that the two-thirds
interest which ori!,\inally belonged to Satya Jiban's
brothers, came to the plaintiffs as a result of the compromjse in the partition suit. Section 16 as it stands after
the amendment by the Bengal Act IV of 1928, does not
impose an absolute bar on the recovery by suit of the
arrears of rent. The bar is there only " until the duties
imposed upon him (that is: the plaintiffs) bys. 15, have
been performed." Now, s. 16 does not speak of any
time-limit. It only speaks of the bar to the recovery
of the arrears until the performance by the landlord
of"the duty of giving notice of the succession or getting
mutation made on the succession. It was arguect 'on .
behalf of the appellant that the performance of the duty'
aforesaid is inextricably bound np with the period of
six months, arttl that the performance of the duty
beyond that period, is no performance at all in the eye
of law. We are not impressed by; this argument, and
there are several very good reasons for holding to the
contrary. The provisions of s. 15 are meant not only
for the benefit of the landlord or of the inferior tenant,
but of the intermediate landlords also, th~t is to sa.y, the
•
•
I
... '
(
'
S.C.R.
SUPREME COURT REPORTS
233
provision for notice, or in the alternative, for mutation
_of names in the landlord's .rent-roll, is meant to protect
the interest of the superior landlord in that it ensures
payment of his dues by the intermediate landlord
before the latter can realise the same from his tenant,
in this case, the se-patnidar.
Those provisions also
ensure that the rightful persons entitled to the durpatni
tnterest, get themselves mutated in the superior landlord's office, so that the inferior tenants may know
who their new landlOl"ds are as a result·of succession
to their old landlords. The legislature, -by fixing the
limit of six months, intended to indicate that the notice
of the mutation should be effected within six months,
that is to say, within a reasonable time from the date
of the devolution of interest, even as there are similar
provisions in respect of the mutation of proprietors in
the !'.Jollectorate for the purpose of regular realization
of public demands. But the legislature did not intend
to make it mandatory in the sense that failing to
observe the time-limit,
.the landlord . completely
deprives himself of his right to. receive rent from his
tenant, even though otherwise due. That is the reason
why, ins. 16; there is no indication. of time-limit. On
the other hand, there is :an indication to the contracy
in so far as the last clause quoted above, provides that
the bar against the recovery by suit of any rent pay.
able to the holder of the tenure, operates only until he
performs the duties imposed 'Upon him by s. 15. Section 16, being in the nature of a penal provision,_ has
to be strictly limited to. the words contained in the
penal claus~, and the penalty should not .be extended
by implication. -If the legislature had intended that
. the }1enalty should operate for all times if the duty
· ""were not performed within the time specified in s. 15,
the legislature would have used the words "within
the prescribed time ".; or some· such wr>rds.
Instead
oflii,ying down such a time-limit,. the legislature has,
by the amendment af@resaid by Act IV of 1928, made
it clear that the bar operates.only:so long as the duty
has not been performed. No authority has been cited
before us in support of the extreme proposition that
~o
•
•
Ch11ndranath
Mukherj;<
v.
l'usharika Debi
&- Othtrs
Sinha].
•
Chandranath
ll! ul1herJ ee
.v.
Tusharika Debi
& Others
Sinha j.
, ,
234
SUPR,EME COURT·REPORTS
[1959]
the failure on the part of the landlord to serve the
requisite notioe or to get the necessary mutation effected
within six months, has the effect of wiping out the
landlord's right to receive rent. There may be rulings
to the contrary, . but this Court has to resolve the
controversy on the language of the relevant sections of
the statute, quoted above. That language does not
clearly indicate that the result contended for on behal'f
of the appellant, must necessarily ensue on his making
a default to take those necessar}O steps within the time
specified. The language of the statute is not so
peremptory in express terms or by necessary implication. On the other hand, as already indicated the
language easily lends itself to the construction that the
prescribed time is not in the nature of a statutory bar
to the exercise of the landlord's right to recover rent.
In this connection, it has to be remembered that pat11i
tenure and all other subordinate tenures under the
patnidar, are permanent tenures.
Hence, the relationship of landlord and tenant, continues from generation
to generation without there being any necessity of fresh
attornment on the death of a ditipatnidar or other
grades of tenants in the process of sub-infeudation.
'.l'he relationship is all the time there, only the landlord's record has to be kept up-to-date by making the
necessary substitution in the rent-roll or by giving
notice of the change in the succession to the landlord's
interest. The legislature ll.ad to indicate a time by way
of laying down the ordinary procedure for taking the
steps indicated in s. 15. Six months' period was deemed by the legislature to be a sufficiently long period to
eiiable those steps being taken in the ordinary course
of business. But it ·is not difficult to imagine"cases.
where such steps may not be feasible within the pre-'
scribed· time. For example, where the landlord dies
leaving him surviving only an infant heir without a
proper guardian to protect the infant's interest, it may
take a considerably longer period than six months to
have a proper guardian appointed, if necessary, through
court. It may well be that the succession it~elf is
disputed, and the controversy may take some years to
?:t determined finally. It cannot .be reasonably
•
•
~"
' '
S.C:R..
SUPREME 'COURT R·EPORTS
235
s11ggested .that because the requisite notice or the
mutation has not been given or effected within the
prescri,b~d peri?d of six months, the land.l.ord's. right
to recovery of rent, disappears. That c01Hd not have
~een the .intention· of the legislature. Again, it may.
easily be sμpposed. that an honest .tem111t go~s po his
new landlord and pays him rent harid to hand, even
though there has been no such step ·taken withili the
time as contemplated by s: 15.
It' cannot be said that
such a payment of retlt otit of court, will not be· recognized by a court, ifandrwhen a controversy about such
a payment were 'to arise. In this way, instances may
be multiplied where the provisions of s. 15 of the Act;
have not been strictly complied with, but still the
receipt and payment of rent as be.tween· the patnidar
and his tenant, have continued· for a• sufficiently long
period, to prove what was required to be done under
that section. In our opinion, the inference is clear
that the provision as regards the time-limit, is not
mandatory but only directory, and that transgression
of that directory.provision has the effect of only de~ay
ing the landlord's remedy of recovery of arrears of rent
by suit so long as the landlord has not done what he
is required by law to do.
But that provision has n~t
the effect of absolutely depriving the landlord of his
remedy by suit for all times; he may recover through
court, of couse, subject to the law oflimitation. In our
opinion, therefore, acceptan~ of the appellant's arguments would be nothing more than " piling unreason
upon technicality", which no court of justice can
countenance.
. . , . .
·
.
In view of these considerations, it must be held th'!tt
there• is no merit in this appeal which is, accordingly,
'dismissed with costs.
Appeal<dismissed .
..
•
•
•
•
Chandranal!t
Mukherjee
v.
•
Tusharika Debi
b Others
Sinha ].
• '