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Civil Appeal No. 23‑D of 1961, decided on 20th June 1963.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 12th July 1960, in Civil Revision Case No. 297 of 1960.)

. S. 24(1), (11)‑"Sub‑lease"‑"Lease" of tenancy by tenant is a "sub‑lease", and is excluded from purview of S. 24 (1).

, S. 24 (1), (11)‑Transfer of tenancy by tenant‑Transaction worded so as to appear to be a sub‑lease‑May be held to be pre‑emptible "transfer" within meaning of S. 24(1)‑[Transfer of tenancy for a consideration made up of premium Rs. 495 and only Annas. 8 as annual payment towards rent, transferor agreeing that he had ceased to have any right in property transferred, held to be not a sub‑lease but a transfer pre‑emptible under S. 24(1)].

, S. 24 (1)‑Question whether a transfer falls under S. 24 (1) and so is pre‑emptible‑Relates to jurisdiction‑Document of title Interpretation a question of jurisdiction‑Civil Procedure Code (V of 1908), S. 115.

B. C. Das Advocate Supreme Court instructed by M. A. Khaled Attorney for Appellant.

Moinul Huq Advocate Supreme Court instructed by S. S. Hoda Attorney for Respondents.

Date of hearing: 23rd May 1963.

.‑This appeal arises out of an application for pre‑emption filed under section 24 of the East Bengal non Agricultural Tenancy Act. The appellant Paresh Nath Sikdar who was the applicant alleged in the application that respondents 5 and 6 had transferred their shares in the tenancy in dispute, in which the appellant himself was a co‑sharer, to respondents 1 to 4. The property to which the tenancy related consisted of shops, godowns and tanks. Respondents 1 to 4 contested the application on the ground that the transfer in question was a lease and not a total assignment of the rights of respondents 5 and 6. The Munsif who tried the suit was of the opinion that the question was a difficult one and should be decided in a regular suit. He directed the appellant, therefore, to file a regular suit for a declaration that the deed in dispute embodied not a lease but a sale. An appeal was filed against the judgment of the Munsif before the District Judge by the appellant. The District Judge found on a perusal of the document in dispute that it was a lease and did not effect a sale. Accordingly he dismissed the appeal. The present appellant then took up the matter in revision to the High Court under section 115, C. P. C. It was urged before the High Court in the alternative that even if the deed was one of lease an application for pre‑emption lay, because under section 24 of the East Bengal Non‑Agricultural Tenancy Act all transfers were pre‑emptible excepting those that were specially excluded and while a sub‑lease was excluded a lease was not. The learned Single Judge of the High Court came to the conclusion that section 24 envisaged an out‑and‑out sale and could not apply to a lease. With respect to the question as to whether the transaction in dispute was a lease or a sale the learned Judge simply said that the Courts below had found it to be a lease. This was not quite correct for the trial Court had refused to give a finding on the question.

Before us learned counsel for the appellant has repeated both the contentions put forward in the Courts below.

The contention as to the applicability of section 24 to a lease may first be disposed of. It will be convenient to reproduce here the relevant portion of section 24. It runs

"24. (1) If a portion or share of the non‑agricultural land held by a non‑agricultural tenant is transferred, one or more co‑sharer tenants of such land, or if the non‑agricultural land held by non‑agricultural tenant or a portion or share thereof is transferred, the immediate landlord of such non‑agricultural tenant may within four months of the service of notice issued under section 23 and in case no notice had been issued or served then within four months from the date of knowledge of such transfer, apply to the Court for such portion or share or for such land or portion or share, to be transferred to himself or to themselves, as the case may be:

(11) Nothing in this section shall apply to‑

(a) a transfer to a co‑sharer in the tenancy whose existing interest has accrued otherwise than by purchase; or

(b) a transfer by exchange, sub‑lease or partition, or

(c) a transfer by bequest or gift (including heba but excluding heba‑bil‑ewaz for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or

(d) a wakf in accordance with the provisions of the Muhammadan Law, or without,

(e) a debuttor or any other dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual.

In accordance with subsection (11) a sub‑lease is dot within the purview of section 24. Learned counsel for the appellant argues that only a sub‑lease has been excluded from the operation of A section 24 and a lease has not been so excluded and, therefore, it mains applicable to a lease. It is to be kept in mind that section 24 deals with transfers by tenants. A tenant is himself a lessee and when he grants a lease it is always a sub‑lease. A sub‑lease means a lease by a person who is himself a lessee or a tenant. There was no need to provide for an exception in respect of a lease in subsection (11) of section 24 because the only lease possible by a tenant is a sub‑lease. A simple lease, i.e., a lease which is not a sub‑lease cannot be created by a tenant at all.

We find force, however, in the second contention raised by the appellant, namely, that the document in dispute effects an out‑and‑out transfer for a consideration and is not a lease but a sale of the share of respondents 1 to 4 in the tenancy. For a decision of this question it is necessary to reproduce the relevant portion of the deed in dispute. It runs

"This deed of permanent patta or perpetual lease runs to the following effect that we the 2nd parties are in possession and enjoyment as 16 annas owner by inheritance of the lands described in the schedule below. Nor ourselves being in difficulties in our business and there being urgent necessity for money to meet different exigencies of life, having declared our intention to lease our entire share in the properties owned and possessed by us and described in the schedule below yourselves the recipients of the document have agreed to take permanent lease on payment of proper salami and fixing permanent rent. According yourselves the 1st party and ourselves the 2nd party have agreed to settle and fix Rs. 495 as the proper and highest Nazar salami in respect of our share in the properties described in the schedule below and annual rent at 8 annas and ourselves the 2nd party executant of the document having the said entire salami amounting to Rs. 495 in cash in presence of from you the recipient of the document through your father Abdur Rahim Jamadar and having realised the said annual rent of annas 8 and giving permanent lease of our entire share in the properties described in the schedule below, we have been divested of all interest in that through generations of our heirs and successors. From to‑day yourselves and recipient of the document becoming owner in title and possession to the extent of our 16 annas interest of the lands described in the schedule below on the basis of the permanent lease shall enjoy, possess and appropriate usufructs of the same through generations by cutting earth and building houses and by exercising all powers of transfer such as gift, heba or sale or usufructuary mortgage and charge in the character of the land. By paying annual rent of annas 8 to our sherista only and by realising legally fixed cesses you shall receive cheque dakhilas. Without dakhilas you will not get any acquittance for the rents paid and the said rent shall not and will never be increased or decreased. If in future any new cess is fixed then you shall pay the same along with the rent and shall be liable to pay the same."

The points which are to be noticed are:

(i) that the lease created by this document is a permanent one without any possible right of right of re-entry.

(ii) that the lessors are by this deed divested of all the rights which they had in the property in dispute ;

(iii) that the respondents became owners in title and possession of the whole of the sixteen annas interest of the lessors ;

(iv) that after the execution of the deed the only right that remained with the lessors was the right to receive a sum of annas 8 per year ;

(v) that the lessee was to have full powers of gift, heba, sale, mortgage, change in the character of land and of building houses ; and

(vi) that the responsibility for any new cesses is that of the lessee.

It appears to us that the true consideration for this deed is only the sum of Rs. 495, which was to be paid as a premium. The promise of payment of the very small sum of annas 8 a year cannot be a genuine consideration and is intended to provide an excuse for saying that the relationship of landlord and tenant exists between the parties. If this consideration of annas 8 a year be ignored there is no difficulty in holding that there is a total assignment of the rights of the lessors. The document states in so many words that henceforth the lessors cease to have any right in the property in dispute. This statement in fact provides the true criterion for determining whether the deed is one of lease or of assignment. When a person gives his property on lease, he does not part with the whole of his interest and simply allows the lessee the possession and usufruct of his property. This is true as such in a case where the lessor is a tenant as in a case where the lessor is the owner of corporeal property. A tenant too when he gives his tenancy on lease grants only the possession of his rights to the lessee retaining in himself the ownership of his own right though not the possession of it. In the present case the so‑called lessors have not retained the ownership of their rights. This is not consistent with a mere lease. So even if the consideration of payment of annas 8 per year was a genuine one, there would be a complete transfer of the rights of the lessors for a consideration of Rs. 495 and the sum of annas 8 in perpetuity, but we are of the opinion that this was not in fact a true consideration.

That this deed was so framed only in order to defeat the right of pre‑emption is quite apparent because there is no explanation for putting a transfer, the effect of which is to grant all possible rights in the property in dispute to the lessee, in the present form. The only question was whether the respondents8 had succeeded in putting the transaction in a form in which it will defeat the right of pre‑emption, and it appears to us that they have not so succeeded. The legal effect of the document is to extinguish the title of the so‑called lessors in the property and to vest it henceforth in the so‑called lessees.

One more point remains to be considered. It is urged on behalf of the respondent that the High Court was exercising jurisdiction under section 115, C. P. C. and the decision of the District Judge as to whether there was a sale or a lease being one relating to the merits of the dispute and not relating to any question of jurisdiction was not liable to be set aside by the High Court in the exercise of its revisional jurisdiction and we should uphold the judgment of the High Court on the ground that it had no jurisdiction to set aside the order of the District Judge even if we find the transaction in dispute to be a sale. The interpretation of a document of title is a question of law, but it is urged that a wrong decision on a question of law relating to the merits of a dispute does not attract section 115, C. P. C. It is argued that if the applicant in an application under section 24 alleged that in fact there had been a sale of the tenancy rights and led oral evidence to prove it, but the evidence was disbelieved by the Court and it was held that there was no sale, it would be difficult to contend that there was a decision of a question relating to jurisdiction and there is no distinction in principle between a case where the Court decides on facts that there has been no sale and a case where it decides on a question of law that there has not been a sale. If in the case of a decision on facts the matter does not relate to the jurisdiction of the Court, in the case of a decision on a question of law too it does not relate to such jurisdiction.

It will be clear on a closer examination that between a case where a Court decides on facts that there has been no transfer and a case where it decides as a matter of law that a transfer is not a sale there is an important and decisive distinction. When a Court decides as a matter of law that a transfer is not a sale and decides so wrongly, it misinterprets the provision, which creates its jurisdiction because the Court is holding wrongly that a particular transaction is not within section 24. We may here refer to the first of two contentions which had been raised before us namely that while a sub‑lease is excepted from the operation of section 24 a lease is not so excepted and therefore even a lease is pre‑emptible. If on this point the District Judge had held that a lease was within section 24 obviously the matter would be one relating to jurisdiction for the District Judge could not by a misinterpretation of the provision that created his jurisdiction extend it to cases not within its scope and a case where as a matter of law the District Judge finds a transaction to be not one of the transfers to which section 24 is applicable is similar for in such a case too the District Judge by a misinterpretation of section 24 either extends or limits its scope. There is not much difference in principle between a case where the Court decides that a lease is or is not within section 24 and a case where as a matter of law it decides a particular transaction to be or not to be within section 24. The interpretation by a Court of the provision, which creates its own jurisdiction is obviously a matter relating to the jurisdiction of the Court. We are concerned here with a special jurisdiction created by section 24 of the East Bengal Non‑Agricultural Tenancy Act. The Court has decided that a particular transaction the incidents of which are known is not within its special jurisdiction. This decision is similar to a decision of an ordinary Civil Court holding that the matter involved does not relate to a civil right. The jurisdiction of the ordinary Civil Court is to give effect to all civil rights. Just as the decision of an ordinary Civil Court with respect to the question whether the matter involved is or not a civil right relates to it jurisdiction, in a proceeding under section 24 the decision of the question whether or not the transaction in dispute is within section 24 is a matter relating to jurisdiction.

We accept this appeal, set aside the judgment of the Courts below and grant a decree for pre‑emption as prayed for. The appellant shall have his costs in all Courts.

A. H. Appeal accepted.

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